1.8 International Legal Interests

Table 19: Resources Summary for Sub-program 1.8

Figure 31: International Legal Interests Program and Organisational Structure as at 30 June 1998

Sub-program Objectives

In 1997-98, the objectives of sub-program 1.8 were to:

• advise the Government on public international law and ensure the Government is kept fully informed of Australia’s international legal rights and obligations
• promote and develop global and regional respect for international legal regimes, and promote and protect Australian interests through these regimes
• promote Australia’s bilateral and multilateral interests through treaties and provide the Government, Parliament, states, territories and wider Australian community with comprehensive information and advice on Australia’s treaty network
• provide advice on domestic and administrative law relevant to the operation and management of overseas posts and of the portfolio domestically.

Description

The Legal Branch of the International Organisations and Legal Division administers the subprogram. All Australian overseas posts contribute to this sub-program.

This sub-program pursues strategies designed to help achieve four of the Department’s corporate goals: to enhance Australia’s security; to promote Australia’s economic growth, jobs and standard of living; to strengthen global cooperation in ways which advance Australia’s interests; and to provide clients with highly professional, efficient and effective services. These strategies include advising the Government on aspects of public international law, including Australia’s international legal rights and obligations as well as domestic law, implementing the Government’s treaties policy, negotiating international legal issues and providing advice on legal issues relevant to managing the Department’s operations. The sub-program’s strategies rely on maintaining a strong core of expertise in international and relevant domestic law.

Performance Information

In 1997-98, the Department indicated that it would evaluate its performance using:

• client satisfaction with the quality of advice provided on treaty issues, including transparency, consultative arrangements and flow of information on treaty action to the Government, Parliament, states, territories and wider Australian public (including through seminars, publications and the Internet)
• smooth transition by the portfolio to the new public service administrative law regime reflecting a widespread awareness of its requirements throughout the organisation and reducing the risk of grievances and litigation
• achievement of positions which advance or safeguard Australian interests in ongoing legal negotiations in multilateral forums on, inter alia, fisheries management and enforcement, peaceful use of nuclear technology, human rights, refugee law, environmental protection and criminal law (including progress towards negotiating the statute of the International Criminal Court)
• outcomes in international human rights standard-setting negotiations which reflect Australian policy interests and public concerns
• effectiveness in supporting Australian bilateral trade and investment in negotiating investment promotion and protection agreements and other relevant legal instruments
• domestic compliance with UN Security Council sanctions resolutions
• outcomes of the UN General Assembly Special Session on Narcotic Drugs and other relevant international forums which advance Australian interests on drugs and organised crime issues
• with the entry into force of the UN Law of the Sea Convention, the degree to which its provisions are accepted internationally and the institutions established under it— the International Seabed Authority, the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf— are cost-effective and reflect Australian interests
• acceptable outcomes for Australia on the designation of Indonesia’s archipelagic sealanes in the International Maritime Organization and from discussions with Indonesia on enhanced procedures to control illegal fishing in the Australian Exclusive Economic Zone.

Performance Outcomes

1.8.1 International Agreements, Resource Law and Law Advising

The Department played a leading role in formulating policy and negotiating with Indonesia and the United States to seek acceptable outcomes for Australia on the designation of Indonesia’s archipelagic sealanes under the UN Convention on the Law of the Sea (UNCLOS). Maritime access through Indonesia’s archipelagic waters was guaranteed when in May, the International Maritime Organization accepted Indonesia’s proposal to designate three north-south archipelagic sealanes. The Department was extensively involved in developing the whole-of-government position on archipelagic sealanes and the Indonesian proposal. This included successful representations to Indonesian and US authorities presenting Australia’s policy position. Australia’s preferred policy position was ultimately reflected in the proposal the International Maritime Organization adopted.

The Department supported the Government’s efforts to promote bilateral trade and investment through finalising investment protection agreements with India, Slovakia, Angola and Pakistan, and trade agreements with Morocco and Ukraine.

The Department played a critical role in developing whole-of-government policy on the International Criminal Court and took a leading role in the multilateral negotiations to establish the court. These negotiations are due to conclude in July 1998 with the adoption of a statute for the court.

The Department advanced Australia’s interests on drugs and organised crime issues by providing advice on the Australian negotiating position on practical outputs addressing both supply and demand for illicit drugs for adoption by the UN Special Session on Narcotic Drugs in June. The Department supported Mr Downer’s participation in the Special Session where the Government announced its ‘safer borders, safer streets’ initiative to help countries of the Asia Pacific region reduce the supply and demand for drugs.

Photo: Minister for Foreign Affairs, Alexander Downer, addresses the UN General Assembly Special Session on Narcotic Drugs in June in New York. (photo: UN/DPI photo by Evan Schneider)

The Department successfully supported the Government’s commitment to maintain transparent consultative arrangements for treaty action. The treaties process enabled the tabling of 49 treaties in the Parliament, resulting in 34 hearings (19 in Canberra, 15 elsewhere) and six reports by the Joint Standing Committee on Treaties. Parliamentary and private sector sources gave positive feedback on the mechanisms employed to consult the community on treaties.

In conjunction with the Australasian Law Information Institute, the Department continued to develop a treaties Internet database (available through the DFAT website or at http://austlii.edu.au/au/other/dfat/). This is the most comprehensive treaties database in the world. Public interest in it is very high, with approximately 300 successful access requests per day.

The Department successfully managed the portfolio’s smooth transition to the new public service administrative law regime and related public sector management issues. The Senior Executive received detailed advice on the Department’s legal rights and obligations in the Certified Agreement and AWA negotiations. Extensive legal advice also was provided on drafting the DFAT Code of Conduct, implementing the Workplace Relations Act 1996 and clarifying the terms of the proposed Public Service Act. Specialist legal advice was provided to the Department on a wide range of matters including freedom of information, staffing issues, privacy matters, contracts, security and consular issues.

The Department has managed effectively the legislation process for all portfolio related bills. The Foreign Affairs and Trade Legislation Amendment Act 1997 was enacted in October; the Comprehensive Nuclear Test-Ban Treaty Act 1998 was passed by both Houses of Parliament in June; and a draft Anti-personnel Landmine Bill was prepared for introducing into the House of Representatives.

The Department concluded negotiations for six formal bilateral spouse employment arrangements, and a further ten are being negotiated. The Department established the regulatory regimes required to implement UN sanctions with respect to Iraq, Sierra Leone, Angola and the Federal Republic of Yugoslavia. It conducted over 20 internal reviews of passport decisions and provided advice on, and cleared over, 100 Memorandums of Association on behalf of commonwealth and state agencies. The Department also established over 15 regulatory regimes granting privileges and immunities to international organisations.

1.8.2 Internaltional and Domestic Litigation

The Legal Branch is responsible for managing the Department’s legal exposure both internationally and domestically. During the review period, the Legal Branch advised the Department on all legal proceedings involving the Department, including five court proceedings in Australia and four proceedings overseas. The Department settled one Federal Court claim against it, subject only to execution of a formal deed. The Department also undertook five investigations into defective administration and processed 15 subpoenas to produce documents issued against the Department.

The Department successfully defended a claim in the Administrative Appeals Tribunal relating to the cancellation of a passport and represented the Commonwealth in a Victorian Coroner’s Court inquiry into the overseas death of an Australian citizen. It also supported key client interests through advice in relation to domestic and overseas litigation by the private legal sector. The Department responded to 35 requests from law firms seeking information on the taking of evidence overseas for legal proceedings and handled over 300 cases for service of documents abroad in relation to private proceedings; these involved arranging service of legal documents through diplomatic channels.

Photo: Legal Adviser, Richard Rowe, works with members of his team in the Department's law library: (left to right) James Larsen, Marguerite Gaffey, Sridhar Ayyalaraju, and Marina Tsirbas. (photo: Michael Jensen)

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