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External scrutiny

Our operations are subject to scrutiny from a number of external bodies, including the Australian National Audit Office, the Commonwealth Ombudsman, various parliamentary committees and the courts. A number of significant decisions by these bodies have influenced or will influence our operations into the future.

External audit

During 2019–20, the Australian National Audit Office completed two audits and substantially completed one other involving the activities of the department.

Management of the Australian Government’s Register of Lobbyists

This was a follow-up to a 2018 audit, when the Lobbyist Register was the responsibility of the Department of the Prime Minister and Cabinet. This audit was tabled on 26 June 2020. Having found that a recommendation made in the earlier audit had not been implemented, this audit made two recommendations to ensure contact between lobbyists and government representatives is conducted in accordance with public expectations of transparency, integrity and honesty. The department agreed with both recommendations and will begin implementation during 2020–21.

Implementation of the Digital Continuity 2020 Policy

This audit, which was tabled on 31 October 2019, examined the extent to which Australian Government entities have implemented the Digital Continuity 2020 Policy and how effectively the National Archives of Australia monitored, assisted and encouraged entities to meet the specified targets of the policy. The report found that the department had fully implemented, or made substantial progress towards all of the targets. There were no recommendations for the department.

Annual performance statement pilot audit

At the start of 2020, the department was chosen to participate in an Australian National Audit Office pilot program of audits of annual performance statements. The other entities included in the pilot are the Department of Social Services and the Department of Veterans’ Affairs.

As part of this pilot, the development of our 2019–20 annual performance statement, which forms Part 2 of this annual report, was audited. The Australian National Audit Office provided interim findings to the department regarding the performance framework that underpins the annual performance statement. We have sought to address those findings in preparing this annual report, and in particular, the annual performance statement.

The Australian National Audit Office will present its final audit opinion in an independent assurance report that will be provided to the Minister for Finance for tabling in the Parliament.

Judicial decisions

Daniel Taylor v Attorney-General of the Commonwealth [2019] HCA 30

In this case, the majority of the High Court found that offences under Division 268 of the Criminal Code, including crimes against humanity, can only be prosecuted in the name of the Attorney‑General and private prosecutions for these offences is precluded. Accordingly, the plaintiff could not bring a private prosecution against Aung San Suu Kyi, Minister for the Office of the President and Foreign Minister of the Republic of the Union of Myanmar, for alleged crimes against humanity against the Rohingya people in Myanmar.

Khazaal v Attorney-General [2020] FCA 448

On 6 April 2020, the Federal Court dismissed this application for judicial review of the Attorney-General’s decision to refuse release on parole on the basis that the applicant had not been afforded procedural fairness. The decision affirmed the department’s practices for dealing with parole matters for federal offenders.

Re Branded Media Holdings Pty Limited (in liquidation); re Brand New Media Pty Limited (subject to a Deed of Company Arrangement) [2020] NSWSC 557

In this case, the New South Wales Supreme Court decided that the holding company within the relevant corporate group was the ‘true employer’ of the employees who made claims under the Fair Entitlements Guarantee scheme, notwithstanding that the subsidiary company was the ‘employer on record’.

The court observed that the documentation of the employee relationship is less significant in identifying the true employer than the fact of which company is responsible for paying employees. The case is significant as it resulted in the repayment to the department of 100 per cent of the just over $1 million of entitlements paid to employees under the Fair Entitlements Guarantee scheme.

RCR Tomlinson Ltd (administrators appointed) and Ors [2020] NSWSC 735

In this case, the New South Wales Supreme Court provided guidance on the proper characterisation of certain types of assets that may be made available to pay priority employee claims, including those paid under the Fair Entitlements Guarantee scheme. This required detailed consideration of provisions of the Corporations Act 2001 and the Personal Property Securities Act 2009. The department intervened in the proceedings as an interested party.

WorkPac Pty Ltd v Rossato [2020] FCAFC 84

In this case, the Full Court of the Federal Court affirmed its decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 that the existence of a ‘firm advance commitment’ to continuing and indefinite work according to an agreed pattern of work meant that Mr Rossato was not a casual employee under the Fair Work Act 2009 (Cth) and the relevant enterprise agreement.

The former Minister for Jobs and Industrial Relations had intervened in this case principally on the question of whether a purported casual loading paid to employees in lieu of leave and other entitlements can be offset against any liability for those entitlements in the event an employee is later found to not be a casual employee.

This decision is significant as it represents the current legal position on the definition of casual employment for the purposes of certain entitlements. On 17 June 2020, WorkPac filed a special leave application in the High Court to appeal the Full Federal Court decision.

Mondelez Australia Pty Ltd v AMWU & Ors [2019] FCAFC 138

In this case, the majority of the Full Court of the Federal Court rejected Mondelez’s application for declarations relating to the interpretation of the paid personal or carer’s leave (PPCL) provisions in the National Employment Standards in the Fair Work Act 2009. The former Minister for Jobs and Industrial Relations had intervened in the matter, submitting that employees are entitled to an amount of PPCL equivalent to their ordinary hours of work in a two-week period. The majority rejected this submission and found that the Fair Work Act 2009 provides full-time and part-time employees with ten ‘working days’ of PPCL per year (that is, an entitlement to be absent for 10 x 24-hour periods that would otherwise be allotted to work).

The case has implications for the method of accruing and taking PPCL for employees within the national system. On 13 December 2019, the High Court granted the Attorney-General and Minister for Industrial Relations and Mondelez Australia special leave to appeal this decision.

Reports by parliamentary committees

Senate Education and Employment Legislation Committee

In October 2019, this committee reported on the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019. The bill sought to broaden the grounds on which the Federal Court could disqualify officers of registered organisations, deregister organisations or place an organisation into administration, and introduced a public interest test for mergers of registered organisations. Parliament did not pass the bill and the government removed it from the Notice Paper on 11 June 2020.

In October 2019, this committee also reported on the Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2019. The bill sought to ensure better financial governance and transparency of registered organisations and associated entities, with a particular focus on worker entitlement funds. The bill is before the Senate.

Senate Standing Committee on Economics

On 13 November 2019, the Senate referred to this committee an inquiry into the causes, extent and effects of unlawful non-payment or underpayment of employees’ remuneration by employers and measures that can be taken to address the issue.

The department made a submission to the inquiry, noting that denial of workers’ legal entitlements is unacceptable and that wage underpayment and employee exploitation deny employees their legal entitlements. It also does not create a level playing field, such that employers who do the right thing are competing with employers who deliberately underpay or exploit workers.

The submission indicated there was a strong case that the current penalty, compliance and enforcement framework for breaches of the Fair Work Act 2009 needs improving. The government has committed to introduce measures to further protect workers from exploitation.

Senate Standing Committee for the Scrutiny of Bills Committee

This committee reported on the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 on 26 February 2020. The bill is currently before the Senate and proposes a number of amendments to strengthen Australia’s response to foreign bribery. This includes the introduction of a Deferred Prosecution Agreement scheme, which would be implemented by the Commonwealth Director of Public Prosecutions in consultation with relevant law enforcement agencies. Under the scheme, the Commonwealth Director of Public Prosecutions can negotiate with a corporation that has engaged in serious corporate crime an agreement to comply with specified conditions. The department would be responsible for appointing officers to oversee the approval of the scheme. The committee did not make any recommendations concerning the scheme.

Senate Standing Committee on Legal and Constitutional Affairs

This committee reported on the Criminal Code Amendment (Agricultural Protection) Bill 2019 on
6 September 2019. The bill introduced two new offences relating to the use of a carriage service to incite trespass or property offences on agricultural land and complemented efforts in some states and territories to strengthen trespass laws, including by introducing tougher penalties. The committee was satisfied that the bill was a proportionate response to the apparent rise in activist trespass on agricultural land. The committee agreed there was a need for laws that explicitly target the use of a carriage service to incite trespass to act as a deterrent. The committee recommended that the Senate pass the bill. The bill was passed by the Parliament and the Act commenced on 20 September 2019.

This committee also reported on the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 on 17 March 2020. The committee was satisfied that the proposed Deferred Prosecution Agreement scheme contains appropriate safeguards to ensure that the public can have confidence in the system and recommended that the Senate pass the bill.

The committee enquired into the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019 and providing its report on 13 March 2020. The committee recommended two amendments to the bill and, subject to those amendments, recommended the Senate pass the bill. We provided advice to the government in response to the committee’s recommendations.

Senate Select Committee on COVID-19

On 8 April 2020, the Senate established a Select Committee on the COVID-19 pandemic to inquire into the government’s response. We appeared before this committee on 21 May 2020 and answered questions relating to the department’s focus (in relation to industrial relations) since the onset of the COVID-19 pandemic.

Senate Select Committee on Temporary Migration

On 5 December 2019, the Senate established a Select Committee on Temporary Migration to inquire into and report on the impact temporary migration has on the Australian economy, wages and jobs, social cohesion and workplace rights and conditions.

The department made a submission highlighting that wage underpayment and breaches of workplace rights and conditions have significant negative effects on temporary migrants. The submission outlined the measures the government has put in place (and is considering) to strengthen workplace protections available to temporary migrants in Australia.