Senator McLUCAS (Queensland—Parliamentary Secretary for Disabilities and Carers and Parliamentary Secretary to the Prime Minister) (20:37): I present four government responses to committee reports as listed at item 17 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— Government Response to the Senate Finance and Public Administration Legislation Committee Report: Exposure Drafts of Australian Privacy Amendment Legislation: Part 1 – Australian Privacy Principles May 2012 Summary table of Government response to recommendations The following tables summarise the Government's response to the recommendations from the Committee's report. Of the Committee's twenty nine recommendations: 4 have been accepted in full; 14 have been accepted in principle; 1 has been accepted in part 6 have been supported; and 4 have been rejected in full. References in this table to chapters and recommendation numbers generally reflect references used in the Committee's report. Committee report chapter reference Rec Response Chapter 3: General issues 1 Accept in principle 2 Not accept 3 Support 4 Support 5 Accept Chapter 4: Australian Privacy Principle 1 – open and transparent management of personal information 6 Accept in principle Chapter 5: Australian Privacy Principle 2 – anonymity and pseudonymity 7 Accept in principle Chapter 6: Australian Privacy Principle 3 – collection of solicited personal information 8 Accept in part Chapter 7: Australian Privacy Principle 4 – collection of unsolicited personal information 9 Accept in principle Chapter 10: Australian Privacy Principle 7 – direct marketing 10 Accept in principle 11 Accept in principle 12 Support 13 Accept in principle Chapter 11: Australian Privacy Principle 8 – cross-border disclosure of personal information and sections 19 and 20 14 Accept in principle 15 Accept 16 Support 17 Not accept 18 Not accept 19 Accept in principle 20 Accept Chapter 12: Australian Privacy Principle 9 – adoption, use or disclosure of government related identifiers 21 Not accept 22 Support Chapter 13: Australian Privacy Principle 10 – quality of personal information 23 Accept in principle Chapter 14: Australian Privacy Principle 11 – security of personal information 24 Accept in principle 25 Support Chapter 15: Australian Privacy Principle 12 – access to personal information 26 Accept in principle 27 Accept in principle 28 Accept in principle Chapter 16: Australian Privacy Principle 13 – correction of personal information 29 Accept CHAPTER 3 – General issues Recommendation 1 3.30 The committee recommends that the Department of the Prime Minister and Cabinet re-assess the draft Australian Privacy Principles with a view to improving clarity through the use of simpler and more concise terms and to avoid the repetition of requirements that are substantially similar. Response: Accept in principle The Government will consider options to improve overall clarity. In particular the Government will review the drafting of the Australian Privacy Principles to avoid repetition of requirements that are substantially similar. Recommendation 2 3.32 The committee recommends that reconsideration be given to the inclusion of agency specific provisions in the Australian Privacy Principles in the light of the Office of the Privacy Commissioner's suggestion that agency specific matters should, in the first instance, be dealt with in portfolio legislation. Response: Not accept The Government does not agree that it is appropriate for all specific agency activities to be included in portfolio legislation. While portfolio legislation will normally provide the lawful authority for an agency to undertake certain powers, functions and activities, it is also necessary in exceptional circumstances to take the additional step of including specific exceptions in the APPs to make clear that specific activities of agencies will not contravene APPs obligations. Some of the exceptions have been included to provide additional certainty about the operation of the APPs on legitimate activities undertaken overseas, including those in urgent or emergency situations. Others preserve existing exceptions in the Information Privacy Principles (IPPs), eg that enable the collection, use/disclosure etc of personal information for law enforcement purposes. In the case of the Defence Force exceptions in APP 3(3)(f) and APP 8(2)(i), they are intended to clarify the circumstances where the collection of sensitive information may occur without consent outside Australia, and where personal information generally may be disclosed to an overseas recipient. The Defence Force undertakes a range of activities in other countries that involve the collection and disclosure of personal information (sometimes in remote and emergency situations) and it is important that there is certainty about its ability to undertake these activities without breaching the APPs. For readability purposes, it is also important to clearly outline how these activities interact with APPs obligations. Similarly, in the case of agencies with diplomatic and consular functions or activities, there are exceptions in APP 3(3)(e), APP 6(2)(f) and APP 8(2)(h), that are intended to clarify that such agencies can collect, use/disclose etc such information both within and outside Australia. Government officials from agencies such as the Department of Foreign Affairs and Trade (DFAT) who are based overseas regularly collect and disclose to their agencies in Australia personal information as part of its diplomatic and consular functions. It would be impractical for DFAT and other agencies to seek the consent of foreign government officials and other individuals, about whom these agencies report to Australia, to collect and disclose their personal information to the Australian Government. Moreover, the act of seeking this consent would undermine the success of DFAT's core operations by revealing to the subject of such information flows that they are occurring. Similarly, it is necessary for government officials based overseas to report to DFAT in Australia in discharging its consular responsibilities, especially in the event of an overseas crisis where overseas officials are expected to assist Australians. The exceptions in APP 3(3)(e), APP 6(2)(f) and APP 8(2)(h) are not new exemptions to existing privacy laws, but seek to clarify the interactions between DFAT's and other agencies' existing functions and the APPs. As with the Defence Force exception, it is important that there is certainty about the ability of these agencies to undertake these activities without breaching the APPs. For readability purposes, it is also important to clearly outline how these activities interact with APPs obligations. The Government will work with the OAIC to develop appropriate guidelines on the exceptions relating to diplomatic and consular functions and activities. It is important to note that certain Commonwealth agencies, such as CrimTrac, operate in a unique fashion within the APP framework. In the majority of circumstances, CrimTrac operates as the custodian of personal and sensitive information; it is not the primary collection agencies. The allowances at APP 3 (3)(d) will ensure that CrimTrac can continue operating effective national sharing solutions that support law enforcement and policing across Australia, without breach. On the general exemptions for law enforcement activities, these already exist in the IPPs (eg IPP 10(1)(d) and IPP 11(1)(e). It is important that these are retained to ensure that law enforcement bodies have clarity that the activities they can undertake with personal information at the moment will continue to be the case under the new APPs. There has been careful consideration given to the inclusion and breadth of agency specific provisions in the proposed APPs and the Government considers that each is justifiable. Recommendation 3 3.73 The committee recommends that the Office of the Australian Information Commissioner develop guidance on the interpretation of 'personal information' as a matter of priority. Response: Support The Government agrees that OAIC guidance on the interpretation of the 'personal information' would be useful in assisting entities and individuals to understand the application and scope of the new definition, especially given the contextual nature of the definition. The Government encourages the development of appropriate guidance by the OAIC. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. Recommendation 4 3.90 The committee recommends that the Office of the Australian Information Commissioner develop guidance on the meaning of 'consent' in the context of the Privacy Act as a matter of priority. Response: Support The Government agrees that OAIC guidance on the meaning of 'consent' would be useful to provide clarity to entities and individuals about the application and operation of that term. The Government notes that this is consistent with ALRC recommendation 19-1 that also recommends that the OAIC should develop and publish further guidance about what is required of agencies and organisations to obtain an individual's consent under the Privacy Act. The Government encourages the development of appropriate guidance by the OAIC. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. Recommendation 5 3.114 The committee recommends that the Government, in consultation with the Office of the Australian Information Commissioner, give consideration to the provision of a transition period for entities to fully comply with the implementation of the new Privacy Act. Response: Accept The Government agrees with the Committee that the introduction of the new Australian Privacy Principles will require entities to develop and implement changes to practices and policies. The Government will therefore consult with the OAIC and other relevant stakeholders in determining an appropriate transition period. CHAPTER 4 – Australian Privacy Principle 1 – open and transparent management of personal information Recommendation 6 4.45 The committee recommends that a note be added at the end of APP 1(5) which indicates that the form of an entity's privacy policy 'as is appropriate' will usually be an online privacy policy. Response: Accept in principle The Government notes the Committee's concerns on APP 1(5) and will look to develop appropriate amendments to the draft legislation. The Government also notes that the Committee considered that the provision should be re-drafted to clarify that privacy policies must be available to both individuals and entities (para 4.44). The Government will also look to develop appropriate amendments to the draft legislation on that issue. CHAPTER 5 – Australian Privacy Principle 2 – anonymity and pseudonymity Recommendation 7 5.37 The committee recommends that the wording of APP 2(2)(a) be reconsidered to ensure that the exception to the anonymity and pseudonymity principle cannot be applied inappropriately. Response: Accept in principle The Government will reconsider the wording of APP 2(2)(a) and consider options to clarify that the 'required or authorised by or under an Australian law' exception applies at the time that the identification of the individual is required by the entity. Further, as noted in the Committee's report (para 5.32), the Government accepted an ALRC recommendation (16-2) that encourages the development and publication of appropriate guidance by the OAIC to clarify when an act or practice will be required or authorised by or under law. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. CHAPTER 6 – Australian Privacy Principle 3 – collection of solicited personal information Recommendation 8 6.35 The committee recommends that in relation to the collection of solicited information principle (APP 3), further consideration be given to: whether the addition of the word 'reasonably' in the 'necessary' test weakens the principle; and excluding organisations from the application of the 'directly related to' test to ensure that privacy protections are not compromised. Response: Accept in part The Government does not support the removal of the term 'reasonably' from the 'necessary' test in APP 3. The requirement on entities to collect only personal information that is reasonably necessary to their functions, requires the collection of personal information to be justifiable on objective grounds, rather than on the subjective views of the entity itself. This is intended to expressly clarify that the test is objective (rather than implied) and to enhance privacy protection. Making it clear that the necessity of the collection must be reasonable is intended to reduce instances of inappropriate collection of personal information by entities. The Government notes the Committee's view that it remains to be persuaded that the inclusion of 'reasonably' provides a higher, or even the same, level of privacy protection as the wording in NPP 1. To give reassurance to the Committee, this will be made clear in the Explanatory Memorandum when the final bill is introduced in Parliament. The Government agrees that the application of the 'directly related to' test to organisations should be reconsidered. The Government will look to develop appropriate amendments to the draft legislation. CHAPTER 7 – Australian Privacy Principle 4 – receiving unsolicited information Recommendation 9 7.44 The committee recommends that the term 'no longer personal information' contained in APP 4(4)(b) be clarified. Response: Accept in principle The Government agrees that further clarification about the term 'no longer personal information' would be beneficial for entities in applying APP 4. The Government considers this should come from guidance developed by the OAIC. Such guidance would provide clarification about the process of rendering personal information 'non-identifiable', or the steps necessary to destroy personal information. This flexibility is necessary because de-identification procedures may evolve over time and may differ depending on the form the information is held in (eg electronic v non-electronic). In addition, OAIC guidance will be useful in outlining how to destroy or render non-identifiable personal information that forms part of other information or records (eg historical records). The OAIC guidance would also be useful in advising about the other elements in APP 4(4) that are relevant to the requirement to destroy or de-identify, ie how to apply the 'as soon as practicable', and 'lawful and reasonable to do so' test in APP 4(4). The Government notes that this is consistent with ALRC recommendation 28-5 (which the Government accepted) that the OAIC should develop and publish guidance about the destruction of personal information, or rendering such information non-identifiable. The Government encourages the development and publication of appropriate guidance by the OAIC. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. CHAPTER 10 – Australian Privacy Principle 7 – direct marketing Recommendation 10 10.46 The committee recommends that the drafting of APP 7 be reconsidered with the aim of improving structure and clarity to ensure that the intent of the principle is not undermined. Response: Accept in principle The Government notes the Committee's general concerns about the drafting of APP 7 and will consider options to improve clarity and structure. Recommendation 11 10.60 The committee recommends that the note to APP 7(1) be redrafted to better reflect the position outlined in the Government response. Response: Accept in principle The Government will look to develop appropriate amendments to the draft legislation to clarify the operation of the 'Direct Marketing' Principle to agencies. Recommendation 12 10.66 The committee recommends that the Australian Information Commissioner develop guidance in relation to direct marketing to vulnerable people. Response: Support The Government agrees that OAIC guidance about direct marketing to vulnerable people would be beneficial to entities in understanding their privacy responsibilities when engaging in direct marketing to individuals such as children. The Government notes that this is consistent with ALRC recommendation 26.7(e) (which the Government supported) that the OAIC should develop and publish guidance to assist organisations in complying with the 'Direct Marketing' principle including 'the obligations of organisations involved in direct marketing under the Privacy Act in dealing with vulnerable people'. The Government accepted that recommendation and encouraged the development and publication of appropriate guidance by the OAIC. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. Recommendation 13 10.81 The committee recommends that the structure of APP 7(2) and APP 7(3) in relation to APP 7(3)(a)(i) be reconsidered. Response: Accept in principle The Government notes the Committee's concerns about the structure of APP 7(2) and APP 7(3) and the need to consider further simplification of these provisions. The Government will look to develop appropriate amendments to the draft legislation. CHAPTER 11 – Australian Privacy Principle 8 – cross-border disclosure of personal information and sections 19 and 20 Recommendation 14 11.41 The committee recommends that a note be added to the end of APP 8 making reference to section 20 of the new Privacy Act. Response: Accept in principle The Government agrees that there would be benefit in outlining the interaction between APP 8 (cross border disclosure of information) and section 20 (Acts and practices of overseas recipients of personal information). The Government will look to develop appropriate amendments to the draft legislation. Recommendation 15 11.53 The committee recommends that the Department of the Prime Minister and Cabinet develop explanatory material to clarify the application of the term 'disclosure' in Australian Privacy Principle 8. Response: Accept The Government will provide more explanation about the application of the term 'disclosure' in APP 8 in the Explanatory Memorandum of the finalised Bill. Recommendation 16 11.64 The committee recommends that the Office of the Australian Information Commissioner develop guidance on the types of contractual arrangements required to comply with APP 8 and that guidance be available concurrently with the new Privacy Act. Response: Support The Government supports this recommendation and notes it is consistent with the Government response to ALRC recommendation 31-7 that the OAIC should develop and publish guidance on certain matters including 'the issues that should be addressed as part of a contractual agreement with an overseas recipient of personal information'. The Government encourages the development and publication of appropriate guidance by the OAIC. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. Recommendation 17 11.103 The committee recommends that, when the Australian Government enters into an international agreement relating to information sharing which will constitute an exception under APP 8(2)(d), the agency or the relevant minister table in the Parliament, as soon as practicable following the commencement of that agreement, a statement indicating: the terms under which personal information will be disclosed pursuant to the agreement; and the effect of the agreement on the privacy rights of individuals. Response: Not accept The Government does not agree that the tabling in Parliament of an international agreement relating to information sharing is warranted. As noted by the Committee, the Parliament is able to scrutinise treaties through the Joint Standing Committee on Treaties. Lower level agreements are subject to scrutiny and accountability by the Executive. In some instances, international partners may not enter into agreements where the terms are to be made publicly available. In addition, the provisions of some agreements should remain confidential where disclosure could be reasonably expected to cause damage to international relations, the enforcement of law and protection of public safety. Recommendation 18 11.105 The committee recommends that further consideration be given to the wording of the law enforcement exception in APP 8(2)(g) to ensure that the intention of the provision is clear. Response: Not accept The Government does not consider it necessary to further clarify the law enforcement exception in APP 8(2)(g), which is available to Australian law enforcement bodies for the disclosure of information to overseas bodies 'similar' to Australian law enforcement bodies, where it is necessary for law enforcement activities by, or on behalf or, an Australian law enforcement body. The Committee noted concerns raised by the OAIC that the term 'similar' could result in the exception being broadly interpreted. The Government believes the use of the term 'similar' is sufficiently clear and narrow to ensure that an enforcement body can only disclosure personal information to an overseas recipient that is a like body. There are additional safeguards that require the enforcement body to 'reasonably believe' that disclosure is 'reasonably necessary for one or more 'enforcement related activities' before disclosure can occur. Recommendation 19 11.120 The committee recommends that section 19, relating to the extraterritorial application of the Act, be reconsidered to provide clarity as to the policy intent of the provision. Response: Accept in principle The Government will look to develop appropriate amendments to the draft legislation to provide clarity as to the operation of proposed s 19 (extraterritorial operation) of the Act. Recommendation 20 11.133 The committee recommends that the Department of the Prime Minister and Cabinet develop explanatory material in relation to the application of the accountability provisions of section 20. Response: Accept The Government agrees that there would be benefit in providing additional explanation about the application of section 20, and will therefore include this in the Explanatory Memorandum to the final Bill when it is prepared. CHAPTER 12 – Australian Privacy Principle 9 – adoption, use or disclosure of government related identifiers Recommendation 21 12.33 The committee recommends that the term 'reasonably necessary' be replaced with 'necessary' in APP 9(2)(a), (b) and (f). Response: Not accept The Government notes the Committee's view that any exception to the identifiers principle should only be applied where it has been objectively determined that it is necessary for a permitted purpose. The Government believes the inclusion of 'reasonably' in the current wording of the exceptions in APP 9 expressly (rather than impliedly) clarifies that the test for disclosure is objective. This will have the effect of enhancing privacy protection by encouraging more appropriate disclosures of government related identifiers by organisations. The Government notes the Committee's comments elsewhere in the report about whether the use of 'reasonably' when used with 'necessary' provides a sufficiently high level of privacy protection compared to the existing NPPs, where an objective test is implied. To give reassurance to the Committee, it will be made clear in the Explanatory Memorandum to the final bill that the use of 'reasonably' is intended to confirm the use of an objective test, and therefore to provide the same level of protection. Recommendation 22 12.38 The committee recommends that the Office of the Australian Information Commissioner undertake a review of agency voluntary data-matching guidelines, including emerging issues with the use of government identifiers, and that the outcome inform further consideration of the extension of APP 9 to agencies. Response: Support The Government believes a review of agency voluntary data-matching guidelines would be a useful basis for any future consideration about APP 9. The Government notes that the Information Commissioner has an existing function in relation to interferences with privacy to undertake research into, and to monitor developments in, data processing and computer technology (including data-matching and data-linkage) to ensure that any adverse effects of such developments on the privacy of individuals are minimised, and to report to the Minister the results of such research and monitoring (s 27(1)(c) of the Privacy Act). The Government will encourage the review of agency voluntary data-matching guidelines by the OAIC. The Government notes that the allocation of OAIC's resources to review the guidelines and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in reviewing the guidelines. CHAPTER 13 – Australian Privacy Principle 10 – quality of personal information Recommendation 23 13.35 The committee recommends that proposed APP 10(2), pertaining to the quality of personal information disclosed by an entity, be re-drafted to make clear the intended use of the term 'relevant'. Response: Accept in principle The Government will look to develop appropriate amendments to the draft legislation to make it clear that the 'relevance' requirement in APP 10(2) relates to the purpose of use or disclosure of the personal information. CHAPTER 14 – Australian Privacy Principle 11 – security of personal information Recommendation 24 14.36 The committee recommends that a definition of the term 'interference' used in proposed APP 11(1)(a), pertaining the security of personal information, be provided or a note included in the legislation to explain its meaning in this context. Response: Accept in principle The Government agrees that further clarity could be provided on the meaning of 'interference' in APP 11(1)(a) and will therefore look to develop appropriate amendments to the draft legislation. Recommendation 25 14.38 The committee recommends that the Australian Information Commissioner provide guidance on the meaning of 'destruction' in relation to personal information no longer required and the appropriate methods of destruction of that information. Response: Support The Government supports this recommendation and notes that it is consistent with the Government response to ALRC recommendation 28-5 that the OAIC should develop and publish guidance about the destruction of personal information, or rendering such information non-identifiable. The Government encourages the development and publication of appropriate guidance by the OAIC. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. CHAPTER 15 – Australian Privacy Principle 12 – access to personal information Recommendation 26 15.43 The committee recommends that, in relation to the proposed exceptions provided for in APP 12(3): the Australian Information Commissioner provide guidance in relation to the application of the 'frivolous and vexatious' exception (APP 12(3)(c)); clarity be provided as to the stage at which the negotiations exception in APP 12(3)(e) may be invoked; and further consideration be given to the exception in APP 12(3)(j) in relation to commercially sensitive decisions to ensure that the rights currently provided for in the Privacy Act 1988 are not diminished. Response: Accept in principle The Government agrees that there would be value in providing further clarification about the operation of the exceptions in APP 12(3). The Government supports the development of OAIC guidance about the operation of the 'frivolous and vexatious' exception to assist in addressing concerns that it may be used to deny an individual access to their own personal information, eg in the circumstances identified in the Committee's report relating to health information or where individuals might be in conflict with a particular organisation. The Government encourages the development and publication of appropriate guidance by the OAIC. The Government notes that the allocation of OAIC's resources to develop guidance and its timing is a matter for the OAIC. The Government will encourage the OAIC to liaise with entities in developing guidance. The Government agrees with the Committee's view that further clarity would be beneficial about the stage at which the negotiations exception in APP 12(3)(e) could be invoked. The Government will consider options for providing this additional clarity in the Explanatory Memorandum to the final bill. The Government agrees that it would be beneficial for further clarity to be provided about the interaction between APP 12(3)(j), 12(5) and 12(9) with a view to ensuring that the rights currently provided for in NPP 6.2 in the Privacy Act are not diminished. The Government will consider how further clarification can be best achieved. Recommendation 27 15.46 The committee recommends that a note be added to proposed APP 12(4)(a) to clarify that a reasonable period of time in which an organisation must respond to a request for access would not usually be longer than 30 days. Response: Accept in principle The Government considers this would best be achieved through OAIC guidance which notes that, if granting access is straight forward, it would often be appropriate for an organisation to grant access within 14 days, or if giving it is more complicated, within 30 days. Recommendation 28 15.47 The committee recommends that APP 12(8) be amended so that it is made clear that access charges imposed by organisations should only be charged at a level reasonably necessary to recoup costs incurred by the entity. Response: Accept in principle The Government notes that this provision is based on existing NPP 6.4. There has been no suggestion that, in practice, NPP 6.4 been applied unreasonably by organisations. However, the addition of a new requirement for organisations to make an assessment about charges reasonably necessary to recoup costs would be a useful measure to prevent unreasonable amounts being charged. The Government will make it clear in the Explanatory Memorandum that an excessive charge amount would include recouping costs above the actual amount incurred by the organisation. CHAPTER 16 – Australian Privacy Principle 13 – correction of personal information Recommendation 29 16.34 That the decision to omit the term 'misleading' in APP 13, relating to the correction of personal information, be reconsidered. Response: Accept The Government notes that the Committee remains concerned about the exclusion of the term 'misleading' in APP 13. The Government will look to develop appropriate amendments to the draft legislation or include additional explanation in explanatory material. The Government will also consider consistency of terminology with APP 10 which relates to the quality of personal information. Under that APP, entities have to ensure the personal information they use or disclose is accurate, up-to-date, complete and relevant. Government Response to the Report of the Joint Standing Committee on Foreign Affairs, Defence and Trade's Inquiry into Australia's relationship with the countries of Africa: Recommendations Government to Government Links Recommendation 1 The Department of Foreign Affairs and Trade should undertake a comprehensive review of Australia's diplomatic representation in Africa with a view to opening an additional post in Francophone Africa. The Government agrees with the recommendation of the Committee. The Government sees value in the establishment of an additional diplomatic post in Francophone Africa. The composition of the network of diplomatic posts overseas is under constant review and the Government will pursue the establishment of a new post in the region as soon as possible. Recommendation 2 The Department of Foreign Affairs and Trade should, pending the implementation of Recommendation 1, increase the number of Australia-based French speaking diplomatic staff in its West African High Commissions. They should have specific responsibility for covering Australia's interests in Francophone West African countries. The Government agrees with the recommendation of the Committee. The Government recognises the importance of French-language skills for diplomatic staff at posts in Francophone Africa and has increased the number of French language-designated speaking positions in West Africa. There are now four French language-designated positions in Australia's missions to Abuja and Accra – 50 per cent of Australia's positions to these posts, including the Head of Mission in Abuja. Australia's mission to Paris is now accredited to five African countries which adds further to the number of diplomatic staff with French language skills working in Africa. Recommendation 3 As a short to medium term measure, the Department of Foreign Affairs and Trade should increase the number of honorary consuls appointed to represent Australia in African countries. The Government agrees with the recommendation of the Committee. The Government has appointed four new honorary consuls since the Committee's Inquiry, several others are in the process of appointment and the Government will continue to appoint more where appropriate. There are now five Honorary Consulates operating in Africa: Angola, Botswana, Mozambique, Nigeria (Lagos), and Uganda. One other (Cape Town in South Africa) is temporarily closed and five more (Cameroon, Namibia, Tanzania, Malawi, Zambia) are at various stages in the process of being established. Recommendation 4 The Government should increase the number of Australian parliamentary delegations to specific African countries particularly to those with increasing significance to Australia. The Government supports the recommendation of the Committee. Australia's Aid Program Recommendation 5 AusAID should provide funding assistance to capacity building programs such as that conducted by the Australian Leadership Program for Africa and similar organisations. The Government agrees with the Committee's recommendation to support capacity building and leadership development. AusAID is providing Africans with a range of capacity building and leadership development opportunities in Australia and in Africa. African candidates are eligible to apply for Australian Leadership Awards (scholarships). In 2011, for the first time, 18 African candidates were selected to receive Australian Leadership Awards that will commence in 2012. These are Masters-level courses with an additional leadership component. Australian organisations, including the Australian Leadership Program for Africa, can apply for funding under the Australia Leadership Award Fellowships (ALAF) Program to host fellows from African countries for up to three months for research, training, work attachments and mentoring. In 2011, 98 African candidates were supported through the Program. These and other Australia Awards Alumni are also provided with leadership and capacity-building support upon return to their home country. The Government has committed to offering up to 1,000 Australia Awards per year by 2013. Recommendation 6 AusAID should increase funding for the Australian Business Volunteers program so that it can expand coverage to African countries. The Government agrees with the Committee's recommendation. Australian Business Volunteers (ABV) is part of a consortium - with Austraining International - that is a core partner of the Australian Government's recently launched Australian Volunteers for International Development (AVID) initiative. Through the AVID initiative, AusAID is expanding support for volunteers in Africa including through the ABV–Austraining consortium. Feasibility and planning assessments are currently underway for possible ABV placements in Africa. Recommendation 7 The Department of Foreign Affairs and Trade and the Department of Resources, Energy and Tourism should establish and fund a special unit tasked with establishing a regulatory framework model for the mining and resources sector which African countries could consider adopting according to their requirements. The Government agrees with the Committee's recommendation to provide assistance to African countries in mining governance. On 25 October 2011, at the Commonwealth Heads of Government Meeting, the Prime Minister announced the Government's new Mining for Development Initiative. The Initiative will benefit a range of developing countries, including African countries. The flagship activity under the initiative, the International Mining for Development Centre, will, amongst other things, assist in capacity building for personnel in developing countries in the development of regulatory frameworks for application in the mining sector in Africa (and elsewhere). An additional component of the Initiative is the establishment of a Government Linkages program. This program will enable federal, state and local government agencies to work with counterparts in developing countries, including Africa, to share expertise including on Australian regulatory frameworks and regulations. This will assist African countries establish and refine their own legal mining frameworks. In addition to this new initiative, the Government, through the Australian aid program, is already providing assistance to support development of regulatory frameworks in Africa's mining sector, including with the assistance of the Queensland and Western Australian State Governments. In 2011, Australia hosted three study tours on mining regulation and governance for 80 African mining officials from 17 countries. Australia also provided 70 short course awards covering a range of mining regulatory issues and is providing technical assistance to a number of countries to assist them reform and strengthen their mining regulatory frameworks. Recommendation 8 DFAT should coordinate regular meetings between AusAID, NGOs, and Australian resource companies engaged in Africa, with a view to facilitating aid and development delivery cooperation to take advantage of their differing and complementary strengths. The Government agrees with the Committee's recommendation. The Government, through DFAT and other relevant agencies including AusAID and DRET is presently engaged in dialogue with resource companies and NGOs on their common interests in engagement in Africa. This includes dialogue on future opportunities to work together, where this makes sense. In its response to the Independent Review of Aid Effectiveness, the Government emphasised that the fundamental purpose of the aid program is to help people overcome poverty. The Government also outlined that the aid program will be delivered through fewer – but larger – programs in fewer sectors. A range of relatively small partnerships with a number of mining companies focussed on areas proximate to their mine sites does not meet the principles outlined in the Government's response to the aid review. The Government nonetheless agrees that there are some opportunities for leveraging development impact through partnerships with the mining industry. As part of the 'Mining for Development Initiative', the Government announced $22 million for a Community and Social Development program which will support partnerships to improve social, environmental and economic outcomes related to mining in developing countries, including in Africa. The Government will continue to use events such as Africa Down Under in Perth and the Mining Indaba in South Africa to bring together the government, private, academic and NGO sectors to network and share experiences on development and sustainable mining principles and best practices. Education Links Recommendation 9 AusAID's scholarships program should include providing scholarships to African students to undertake tertiary education in Africa. This could involve study at African universities and at Australian universities with links with Africa such as Monash South Africa. The Government agrees with the Committee's recommendation. The Government's Australia Awards (scholarships) Program already provides opportunities for post-graduate in-Africa study, and therefore recognises the sound principle of supporting nationals of a country to study locally and contextualise their studies. The Program provides a range of post-graduate Short Course Awards (for periods of study, research and work attachment of up to three months) in various technical areas. These courses may be delivered either in Australia or Africa (or a mix of both) through partnerships between Australian registered training organisations and African institutions. The research component of Masters and PhD Awards (up to 12 months) may also be undertaken in Africa. One of the aims of the Australia Awards Program is to build links with Australia through providing in-Australia learning opportunities at the post-graduate level. This also assures the quality of the education provided. Post-graduate study is an area of weakness for many African universities. Australia's tertiary education institutions are highly regarded by African countries as are Australian qualifications. Recipients of Australia Awards are required to return to their home country on completion of their study program to apply their learning to the benefit of their home country. AusAID maintains contact with Australia Awards alumni and provides them with access to professional development opportunities in-Africa. Recommendation 10 The Department of Education, Employment and Workplace Relations should: establish a Centre for African Studies; invite competitive tenders from Australian universities for the establishment of the Centre; engage stake-holders and potential partners for the Centre; provide sufficient funding so that the Centre can: - undertake research, education and training functions; - engage with industry; - raise the profile of African Studies in Australia; and - provide value to both government and non-government end-users. The Government notes the Committee's recommendation and the recent efforts of Australian universities to improve coordination of educational engagement with Africa through the establishment of an Australia Africa Universities Network. DEEWR is unable to fund the establishment of a Centre of Africa Studies at this time. Mechanisms and priorities for supporting increased educational engagement with Africa and with other regions and countries will be considered in the development of the five year national strategy to support the sustainability and quality of the international education sector. Trade and Investment Recommendation 11 The Government should increase the number of Austrade offices and personnel that are based in Sub-Saharan Africa. The Government agrees with the Committee's recommendation. In May 2011 Trade Minister Craig Emerson announced a comprehensive reform of the Australian Trade Commission, Austrade, aimed at better meeting the needs of Australian businesses. The government recognises that emerging markets across Africa offer growing prospects for Australian businesses. As part of the reform, Austrade will strengthen its presence in Sub Saharan Africa as resources become available. Recommendation 12 The Department of Immigration and Citizenship should expand the issuing of e-visas across Africa, with priority to establishing the service in countries where there is the potential to expand trade, academic, research and other links. The Government agrees in principle with the Committee's recommendation. The Department of Immigration and Citizenship (DIAC) supports the objective of expanding links with African countries through facilitating access to visas. All African countries have access to eVisa facilities for lodgement of applications for Long Stay (Temporary) Business visas and General Skilled Migration visas. In addition, Botswana, Mauritius, Seychelles and South Africa have eVisa access to applications for select student visas. Fast tracking and label free facilitation arrangements are now in place for low risk applicants such as Government ministers, senior Government officials and senior business people. These applications are processed within 48 hours and without the requirement to supply a passport. These fast arrangements were developed in consultation with Austrade and have been widely used by Australian mining companies operating in Africa. Future eVisa access for other types of visas is being considered but will be subject to technical considerations and risk assessment. Assessment of risk is based on a country's visa grant/refusal rates, incidence of visa holders not returning to their countries, overstayer numbers and illegal worker notices issued. It should be noted that because of high rates of document and identity fraud in various African countries, all applications, whether they are lodged electronically or physically, require the provision of supporting documentation which adds to the time required to process a visa application. To reduce delays, DIAC has appointed agents in a number of African countries, to accept applications and/or to verify identity. For example, the International Organization for Migration (IOM) has been appointed to provide document verification services in 23 African countries where DIAC does not have offices. A service delivery partner (VFS Global) has been engaged to operate Australian Visa Application Centres (AVACs) in Kenya (Nairobi), Nigeria (Abuja and Lagos), South Africa (Cape Town, Durban, Johannesburg and Pretoria) and Zimbabwe (Harare). These new arrangements have significantly improved visa processing times and the integrity of the process. Further expansion of these arrangements in Africa is under consideration. The department is committed to continuing to improve service for all clients and is actively looking at expanding access to online visa services generally. Recommendation 13 The Government should undertake steps for Australia to become an EITI compliant country. The Government notes the Committee's recommendation. On 27 October 2011, the Australian Government announced that, in consultation with state and territory governments, industry and non-government organisations, it will undertake a domestic pilot of the Extractive Industries Transparency Initiative (EITI). An Australian EITI pilot will apply the EITI principles to information gathered from governments and a sample of Australian and multi-national companies operating in Australia's extractives sector. The sample will include companies of various sizes extracting a range of commodities from different jurisdictions. The pilot will enable the Government, civil society and industry to promote international acceptance of the EITI, test the applicability and usefulness of EITI principles in the Australian context, and determine costs and benefits of the EITI approach for the Australian community. The Government will use the results and evaluation of the pilot to determine whether Australia should implement EITI and become an EITI compliant country. A steering committee of Commonwealth and state and territory governments, industry and non-government organisations' representatives will oversee the pilot's conduct. The pilot's data collection period of 12 months is scheduled to commence 1 July 2012, after which data analysis, reporting and evaluation phases will follow. The Department of Resources, Energy and Tourism will provide up to $500,000 to fund the EITI pilot. Recommendation 14 The Government should promote corporate social responsibility and continue to promote the Extractive Industries Transparency Initiative principles and other corporate social responsibility instruments to the Australian mining sector, in particular at the Australia Down Under Conference, and especially to new entrants and small operators. The Government agrees with the Committee's recommendation. The Government has used events such as Africa Down Under and the Mining Indaba Conference in South Africa to bring together the government, private, academic and NGO sectors to promote and share experience and leading practice on corporate social responsibility (CSR), and other sustainable mining practices and principles and will continue to do so, including by promoting awareness of Extractive Industries Transparency Initiative (EITI) principles. On 31 August 2011, AusAID organised a social responsibility session as part of the Murdoch University Africa-Australia Research Forum at Africa Down Under which was attended by the private sector, NGOs, academia and government (Australian and African) officials. The Minister for Foreign Affairs and the Minister for Resources and Energy jointly launched a new handbook on Social Responsibility for the Mining and Minerals Sector in Developing Countries during the Commonwealth Heads of Government Meeting in Perth in October 2011. The handbook was developed by the Department of Resources, Energy and Tourism in partnership with AusAID and in consultation with the Australian mining industry, the Minerals Council of Australia and academia. It is a guide to leading practice in social responsibility for resources companies operating in developing countries, to ensure communities receive long-term benefits from mining. It outlines key considerations for socially responsible mining development for companies operating, or planning to operate, in developing countries and draws on leading practice examples both in Australia and overseas. . Recommendation 15 The Government should facilitate contacts between mining sector companies, NGOs, and the broader private sector who are able to assist them in creating and executing corporate social responsibility policies. The Government agrees with the Committee's recommendation. As noted in the response to recommendation 14, the Government will continue to use events such as Africa Down Under and the Mining Indaba in South Africa to bring together the government, private, academic and NGO sectors to promote and share experience and leading practice on corporate social responsibility practices. Furthermore, the Government announced A$22 million for a Community and Social Development program as part of the Mining for Development Initiative to support partnerships to improve social, environmental and economic outcomes related to mining in developing countries, including in Africa. More broadly, the Australian Government has taken action to encourage corporate social responsibility in a number of ways, including through promoting the OECD Guidelines for Multinational Enterprises, the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and support for the UN Global Compact. These are guidelines for companies committed to sustainability and responsible business practices. Recommendation 16 The Department of Foreign Affairs and Trade should establish, and provide adequate funding for an Australia-Africa Council. The Government agrees in principle with the Committee's recommendation. While the Department of Foreign Affairs and Trade has insufficient funding to establish at this time an Australia-Africa Council along lines similar to those currently existing for other countries and regions, the Government will give consideration to establishing a Council in the future. Recommendation 17 The proposed Australia-Africa Council should include within its goals, support for activities that encourage and facilitate cultural interchange and exchange, particularly including the Australian African community. The Government agrees with the Committee's recommendation. The establishment of other Foundations, Councils and Institutes by the Department of Foreign Affairs and Trade has been one effective way to develop further cultural interchange and exchange between Australia and other countries. The Government will take this recommendation into account in further consideration on establishment of an Australia-Africa Council. Government Response to the Parliamentary Joint Committee on Law Enforcement Report: Examination of the Annual Report of the Australian Crime Commission 2009-10 May 2012 The Government welcomes the Committee's Report. The Committee makes two recommendations about the Australian Crime Commission's practice of varying controlled operations under Part 1AB of the Crimes Act 1914. The Government is pleased to respond to the Committee's recommendations. Recommendation 1: The committee recommends that where a variation to a controlled operation authority is sought that would change both the scope and duration of the authority beyond three months, that the scope should be approved internally by the appropriate authorising officer and the change in duration of the controlled operation authority beyond three months should be approved by the AAT. Recommendation 2 The committee further recommends that if there are any administrative or legislative impediments to the approach outlined in Recommendation 1, that the Government make appropriate adjustments to administrative arrangements or legislation as necessary to enable such an approach. Accepted in part The Government agrees to the approach recommended by the Committee where a variation to the scope of a controlled operation authority does not result in a significant alteration to the nature of the controlled operation. In accordance with subsection 15GO(5) of the Crimes Act 1914, if the variation to the scope of the authority would result in a significant alteration to the nature of the controlled operation, the appropriate authorising officer cannot approve the variation. In these circumstances, it will be necessary for the law enforcement agency to seek a new authority. No extension to the duration of the original authority will be necessary in such circumstances. There are no legislative impediments to the approach outlined in Recommendation 1 in relation to variations of controlled operations authorities. The Australian Crime Commission continues to consult closely with the Attorney-General's Department and the Office of the Commonwealth Ombudsman, to ensure that the meaning of 'significant alteration to the nature of a controlled operation' is correctly reflected in relevant administrative procedures.