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External scrutiny

Our operations are subject to scrutiny from 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 2020–21, the Australian National Audit Office (ANAO) completed 2 audits involving the activities of the department.

Annual performance statement pilot audit

In 2020, the department was selected to participate in an ANAO pilot program of audits of annual performance statements, together with 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 was audited. The department took steps to address the interim findings of the ANAO in the 2019–20 annual report and through a redevelopment of the performance framework. The revised framework is set out in the Corporate Plan 2020–24, which was published in November 2020. The ANAO presented its final audit opinion in an independent assurance report to the Minister for Finance, which was then tabled in Parliament in February 2021.

During 2021, the ANAO is continuing the pilot program and has audited the development of the department's 2020–21 annual performance statement, which is Part 2 of this annual report.

Cyber security strategies of non-corporate commonwealth entities

This cross-entity audit assessed the effectiveness of cyber security risk mitigation strategies implemented by selected non-corporate Commonwealth entities in meeting mandatory requirements under the Protective Security Policy Framework. The audit also considered the support provided by the responsible cyber policy and operational entities. The report was published in March 2021 and contained 13 recommendations, including 6 relevant to the department. The department has agreed or agreed in principle to each of the relevant recommendations and has commenced work on implementation. The department noted one recommendation that was made to the government.

Judicial decisions

The following judicial and administrative tribunal decisions had a significant effect on the department's operations:

Fink and Secretary, Attorney-General's Department [2021] AATA 734 (31 March 2021)

The Administrative Appeals Tribunal accepted that the provision in the Corporations Act 2001 that deems termination of an employee’s employment to have occurred on the ‘relevant date’ was irrelevant to the assessment of the redundancy pay under the Fair Entitlements Guarantee Act 2012 (FEG Act) in circumstances where the Fair Work Act 2009 governs redundancy. The Tribunal accordingly found that the small business redundancy provisions in the FEG Act applied. The Tribunal confirmed that this conclusion is not affected by the appointment of an insolvency practitioner, or the fact that the employer may have previously employed 15 or more employees. This decision is significant as it confirmed the department’s approach to the application of the small business exemption in the FEG Act.

LibertyWorks Inc v Commonwealth [2021] HCA 18

On 16 June 2021, a majority of the High Court dismissed the plaintiff’s challenge to the validity of certain provisions of the Foreign Influence Transparency Scheme Act 2018 (Cth). The Foreign Influence Transparency Scheme establishes registration, reporting and disclosure obligations on individuals and entities that undertake certain activities on behalf of a foreign principal. The plaintiff argued that the requirement under the Act to register communications activities on a public register was invalid because it limited the implied freedom of political communication. The majority of the High Court held that public registration of communications activities was constitutionally valid and necessary to achieve the scheme’s legitimate purpose of promoting transparency of foreign influence on Australia's government and politics.

Mondelez Australia Pty Ltd v AMWU & Ors [2020] HCA 29

On 13 August 2020, the High Court granted the appeals by the Minister for Industrial Relations and Mondelez of the Full Federal Court’s decision in Mondelez v AMWU & Ors [2019] FCAFC 138. The court found that all national system full-time and part-time employees are entitled to an amount of paid personal or carers leave equivalent to an employee's ordinary hours of work over a 2-week period each year.

The Minister for Industrial Relations intervened in this matter to make submissions on the correct interpretation of the paid personal or carers leave provisions in the Fair Work Act 2009.

Warren v Secretary, Attorney-General’s Department [2021] FCA 89

The Federal Court found that casual loadings paid to Mr Warren under his employment agreement could not be used to reduce subsequently claimed annual leave and redundancy entitlements under the Fair Entitlements Guarantee Act 2012. The Secretary filed a Notice of Appeal to the Full Court of the Federal Court on 12 March 2021.

Reports by parliamentary committees

The department provided evidence to and appeared before several parliamentary committees.

Joint Select Committee on Australia’s Family Law System

This committee released an interim report on 7 October 2020 and a second interim report on 15 March 2021 with recommendations to improve the family law system. The committee is scheduled to deliver its final report by 29 October 2021.

Department representatives attended public hearings before the committee in February 2020 and November 2020 to answer questions and assist with this inquiry.

Senate Education and Employment Legislation Committee

In March 2021, this committee reported its findings on the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020. The committee recommended the bill be passed in full. The bill reforms the national industrial relations system relating to casual employment, modern awards, enterprise agreements, greenfields agreements and the compliance frameworks to support economic recovery from the COVID-19 pandemic.

The department made a submission to the inquiry, noting that amendments were designed to increase job opportunities and boost wages. Parliament made amendments to the bill before it was passed, making changes to the schedule concerning casual employment and removing all other schedules.

Senate Select Committee on Temporary Migration

The department made a submission to this committee in March 2020 and appeared before it in September 2020. We provided evidence on the progress and implementation of the Migrant Workers’ Taskforce recommendations, including the role of the Migrant Workers Interagency Group. Evidence included progress towards establishing a national labour hire scheme, extension of the Fair Entitlements Guarantee scheme to migrant workers, the department’s involvement in the developing the JobKeeper scheme as well as background on the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.

The department responded to questions taken on notice at the hearing in September 2020 and written questions on notice received on progress to implement recommendations made by the taskforce and court wage recovery processes available to migrant workers.

Senate Standing Committee on Economics

The Senate granted this committee an extension to report on its 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 by 2 December 2021. The department made a submission to the committee in March 2020 and appeared before it in September 2020 to provide evidence on the industrial relations compliance and enforcement framework. This included large corporate underpayments, the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, JobMaker working group consultation and outcomes, drivers of wage underpayment and progress in implementing recommendations of the Migrant Workers’ Taskforce.

The department provided responses to questions taken on notice on the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, consultation on draft legislation to criminalise wage underpayments, the structure of the Industrial Relations Group, complexities in the Fair Work system and stakeholder feedback on the department’s strengthening penalties for non-compliance discussion paper.

Senate Standing Committee for the Scrutiny of Bills Committee

This committee reported on the National Emergency Declaration Bill 2020 and the National Emergency Declaration (Consequential Amendments) Bill 2020 on 9 December 2020 and sought additional information on 17 February 2021. The bills implement recommendation 5.1 of the Royal Commission into National Natural Disaster Arrangements by establishing a legislative framework for declaring national emergencies. The bills passed the Senate on 10 December 2020 and commenced operation on 16 December 2020.

We provided advice to government in response to the committee’s comments and requests for additional information. The department is leading work to identify opportunities to improve the Acts and is considering the committee’s scrutiny comments.

Senate Standing Committee on Environment and Communications

On 23 July 2019, this committee commenced an inquiry into press freedoms. The department made a joint submission with the Department of Home Affairs to this inquiry. Similar to the joint submission made to the Parliamentary Joint Committee on Intelligence and Security press freedoms inquiry, the joint submission to the Senate inquiry noted the appropriateness of the existing balance between press freedom and the role of law enforcement and intelligence agencies in investigating serious offending, and outlined legislative frameworks relating to lawful disclosure of sensitive information.

The Senate Committee released its report in May 2021. The majority report makes 17 recommendations about protecting press freedoms. Government senators provided a dissenting report and the Australian Greens made 2 additional recommendations.

The government is considering its response to the report.

Senate Legal and Constitutional Affairs Committee

This committee inquired into the operation of the National Emergency Declaration Act 2020, pursuant to paragraph 18(a) of that Act. The department made a joint submission to the committee, with the Department of Home Affairs and the Department of the Prime Minister and Cabinet and appeared before a public hearing with those departments. The committee reported on 30 June 2021, with the majority making 2 recommendations, including that the Senate note the report. The government is considering its response to the committee’s recommendations.

Joint Committee of Public Accounts and Audit

On 9 December 2020, the Joint Committee of Public Accounts and Audit published its Report 485: Cyber Resilience. The report examined 2 Auditor-General reports, No. 1 (2019–20) Cyber Resilience of Government Business Enterprises and Corporate Commonwealth Entities and No. 13 (2019–20), Implementation of the My Health Record System. The committee made 3 recommendations of relevance to the department. These focused on the implementation of a moderation and assurance framework to verify the accuracy of entity self-assessments, mandating the Essential Eight across Commonwealth entities and alignment between the Protective Security Policy Framework and the ANAO’s 13 behaviours and practices that may indicate a cyber-resilience culture. The department tabled its response on 8 June 2021 and is progressing implementation of its response to the recommendations.

Parliamentary Joint Committee on Intelligence and Security

On 4 July 2019, this committee commenced an inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. The department made a joint submission with the Department of Home Affairs that outlined the appropriateness of the existing balance between preserving press freedom and the imperative for law enforcement and intelligence agencies to investigate serious offending.

The committee released its report in August 2020, making 16 recommendations, including several relating to the department’s review of Commonwealth secrecy provisions. The government responded on 16 December 2020 agreeing or agreeing in principle to all of the recommendations. Accordingly, the department has expanded its consideration of whether relevant legislation adequately protects public‑interest journalism. The committee also made 3 recommendations relating to the Public Interest Disclosure Act 2013 (PID Act). The government accepted all 3 recommendations and has implemented 1 recommendation by releasing the government response to the 2016 independent review of the PID Act undertaken by Mr Philip Moss AM on 16 December 2020. The department is considering options to implement the remaining 2 recommendations relating to the PID Act.

On 25 February 2021, the committee reported on its inquiry into the declared area provisions in Division 119 of the Criminal Code. These provisions create an offence where a person enters or remains in an area that has been declared by the Minister for Foreign Affairs. The committee made 4 recommendations, including that the sunset date of the provisions be extended for a further 3 years.