28 September 2017

ALRC Family Law Inquiry

The national Attorney-General has today commissioned the Australian Law Reform Commission (ALRC) to undertake 'the first comprehensive review of the family law system since the commencement of the Family Law in 1976'.

Senator Brandis' media release states
This review is necessary and long overdue. Australian families and their needs have significantly evolved since the 1970s. 
The review of the family law system will be broad and far reaching, focusing on key areas of importance to Australian families. 
These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs to resolve their family law disputes quickly and safely while minimising the financial burden. 
I have appointed Professor Helen Rhoades to lead this historic and important work. ... 
The ALRC will consult widely with the community, practitioners and experts in family law and family dispute resolution, the legal, services and health sectors, as well as interested members of the public. 
The review will commence on 1 October 2017 and will report by 31 March 2019.
The Terms of Reference are
having regard to: 
  • the fact that, despite profound social changes and changes to the needs of families in Australia over the past 40 years, there has not been a comprehensive review of the Family Law Act 1975 (Cth) (the Act) since its commencement in 1976; 
  • the greater diversity of family structures in contemporary Australia; 
  • the importance of ensuring the Act meets the contemporary needs of families and individuals who need to have resort to the family law system; 
  • the importance of affording dignity and privacy to separating families; 
  • the importance of public understanding and confidence in the family law system; 
  • the desirability of encouraging the resolution of family disputes at the earliest opportunity and in the least costly and harmful manner; 
  • the paramount importance of protecting the needs of the children of separating families; 
  • the pressures (including, in particular, financial pressures) on courts exercising family law jurisdiction; 
  • the jurisdictional intersection of the federal family law system and the state and territory child protection systems, and the desirability of ensuring that, so far as is possible, children’s matters arising from family separation be dealt with in the same proceedings; 
  • the desirability of finality in the resolution of family disputes and the need to ensure compliance with family law orders and outcomes; 
  • the benefits of the engagement of appropriately skilled professionals in the family law system
 the Australian Law Reform Commission (ALRC) will inquire and report, pursuant to ss 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of whether, and if so what, reforms to the family law system are necessary or desirable, in particular in relation to the following matters:
  • the appropriate, early and cost-effective resolution of all family law disputes;  the protection of the best interests of children and their safety; 
  • family law services, including (but not limited to) dispute resolution services;  
  • family violence and child abuse, including protection for vulnerable witnesses; 
  • the best ways to inform decision-makers about the best interests of children, and the views held by children in family disputes collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems;  
  • whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes;  
  • rules of procedure, and rules of evidence, that would best support high quality decision-making in family disputes mechanisms for reviewing and appealing decisions  
  • families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness; 
  • the underlying substantive rules and general legal principles in relation to parenting and property; 
  • the skills, including but not limited to legal, required of professionals in the family law system;  restriction on publication of court proceedings;  
  • improving the clarity and accessibility of the law; and any other matters related to these Terms of Reference. 
The ALRC should consider
what changes, if any, should be made to the family law system; in particular, by amendments to the Family Law Act and other related legislation. 
The ALRC should have regard to existing reports relevant to:
  •  the family law system, including on surrogacy, family violence, access to justice, child protection and child support; and 
  • interactions between the Commonwealth family law system and other fields, including family law services, the state and territory domestic and family violence, child protection, and child support systems, including the ALRC Family Violence Report 114. 

27 September 2017


In my doctoral dissertation I noted the failure of the New Zealand government in recruiting a new Chief Defence Scientist - not a trivial position - to adequately vet the appointee's resume. The South Australian government appears to have had the same experience.

Last week the ABC reported
The Independent Commissioner Against Corruption has launched a maladministration investigation into the recruitment processes surrounding the employment of a senior public servant in the SA Premier's Department, who has been sacked and is now facing criminal charges. The Department of Premier and Cabinet's chief information officer Veronica Theriault and another public servant, Alan Corkhill, were arrested last week. 
Theriault was charged with deception, dishonestly dealing with documents and abuse of public office and was sacked on Tuesday. Corkhill was charged with deception and aiding and abetting the woman. 
Theriault was hired for the CIO position recently, after it was advertised in May with a salary of up to $244,000. A LinkedIn profile under her name says she worked as "chief geek" for accommodation booking company Wotif in Melbourne from 2011 to August this year, but the company has told the ABC that Theriault had never worked there. 
Anti-corruption commissioner Bruce Lander said the pair was arrested by ICAC officers last Friday. 
Premier Jay Weatherill said he has asked the Department of Premier and Cabinet for an urgent review into how the pair were hired. "It's an extraordinary act of alleged criminal conduct that we've seen here, people forging documents," he said. 
Mr Weatherill said the CIO has access to sensitive information, and the hiring process should have involved security clearances. He has not ruled out disciplinary action against other public servants involved in hiring Theriault, but said he would wait until the internal review is finished.
Yesterday the ABC reported
Two more cases of people being awarded high-paying executive positions based on fake qualifications have been uncovered after an urgent inquiry by the South Australia Government. ... 
Following the arrests, Premier Jay Weatherill called for an urgent review of the recruitment process. The investigation uncovered two cases of alleged fraud from 2011, both within the shared services section of the Premier and Cabinet's Department. 
The department's chief executive, Don Russell, said a man was appointed director of strategic programs, but later resigned amid allegations he had dishonestly represented his work history and academic qualifications. 
In the second case, a former business engineering manager was fired during his probation period due to "unsatisfactory performance and incorrect statements made in connection with his application for employment". 
"In this case, the former manager submitted a certified copy of his qualifications which was accepted then on face value," Mr Russell said. "When later scrutinised, these qualifications and the copy submitted were proven to be false. "It is clear to me that there have been some failings in the verification and checks on senior appointments." 
Mr Russell said he had introduced new protocols which would take immediate effect for senior appointments. These include detailed police and security checks, increased verification of work history and a "forensic investigation" of candidates' social media profiles.

25 September 2017


'The Contested Value of Normative Legal Scholarship' by Robin L. West in (2016) 66 Journal of Legal Education 6-17 comments
Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough.
In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” statements: if it aims to make the law, or the world law governs, better, and aims to do so through using legal materials and a legal methodology, it isn’t scholarship. So, we shouldn’t do it.
After analyzing various contours of the anti-normativity critique, I make the case that legal scholarship is and should be about what justice requires. It therefore must be normative. And to the degree that justice is itself a product of our passion, it must also, therefore, be impassioned. This form of legal scholarship has great social value. It quite often influences not only our law, but also our political environment and the world of ideas in the university. Further, it’s not done anywhere except in law schools. If we forgo this work, our worlds, not only the legal world, but our social and cultural and political worlds, will be the worse for it.


From the Australian Commission for Law Enforcement Integrity report on 'Operation Marlow' (A joint investigation into the conduct of an Australian Federal Police Protective Service Officer concerning Information Security)
On 15 September 2015, AFP Professional Standards (PRS) notified ACLEI of a significant corruption issue, whereby the AFP had information suggesting that a member of the public had shown another person an image on a mobile telephone that was a screenshot of a confidential report from the AFP’s database system, PROMIS. Access to PROMIS is limited to some staff members of the AFP and is subject to stringent security requirements. 
PRS had conducted an audit of access to the relevant PROMIS record and found that it had been accessed by Officer A, a Protective Service Officer. Officer A had no known operational reason for accessing the record.
On 16 September 2015, the Integrity Commissioner decided that ACLEI should investigate the corruption issue jointly with the AFP.
The information raised a corruption issue for the purposes of the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act). The conduct alleged would be likely to fall within the class of being an abuse of office or, if not, ‘conduct that, having regard to the duties and powers of the staff member as a staff member of the agency, involves, or is engaged in for the purpose of, corruption of any other kind’.
An investigation was conducted jointly with the AFP, as provided for by section 26(2) of the LEIC Act.
ACLEI’s jurisdiction to investigate and make findings was not affected by the officer’s subsequent arrest and suspension from duty on 17 September 2015 or by the AFP’s termination of the officer’s employment in late January 2016 due to the definition of “corruption issue” contained with section 7(1) of the LEIC Act.
What the investigation showed
The joint investigation took into account information obtained from the AFP, from the execution of search warrants at multiple premises, from examination of telephone records, and from physical surveillance of Officer A.
The investigation also included interviews under caution, pursuant to Part IC of the Crimes Act 1914 (Cth), in which Officer A, who acknowledged: (a) accessing information on PROMIS and using a mobile telephone to take photographs of the computer screen, despite knowing PROMIS was only to be used for official purposes, and (b) sending these images to an individual who Officer A knew to be involved with criminal activity.
During search warrants executed at the home of Officer A, ACLEI and the AFP located a number of items of AFP equipment which Officer A later admitted to have stolen, as well as a quantity of illicit drugs.
Officer A admitted to being a regular user of illicit drugs, timing drug use to coincide with rostered days off in order to avoid detection through the AFP mandatory drug testing regime. He also admitted to associating regularly with people involved in criminal activity.  
These issues in Officer A’s private life had gradually intruded into his official functions, to the point where he was using access granted through his official role to benefit those with whom he had personal relationships.
Officer A subsequently pleaded guilty to a number of corruption related offences—namely, abuse of public office (Criminal Code 1995 (Cth), s 142.2(1)), recording and disclosing prescribed information (Australian Federal Police Act 1979, s 60A(2)(a) and (b)), theft of Commonwealth property (Criminal Code 1995 (Cth), s 131.1)—and a range of drug offences.
He was sentenced in May 2016 to a total effective penalty of 20 months’ imprisonment, to be released after serving 12 months. Because the sentences to be served amount to more than 12 months, Officer A may also be subject to an application for a superannuation order under the Australian Federal Police Act 1979 (Cth) and steps towards such an order have commenced.
Part 10 actions
Part 10 of the LEIC Act provides for what the Integrity Commissioner may do with evidence and information obtained during an investigation.
Section 142 of the LEIC Act provides that the Integrity Commissioner must assemble admissible evidence relating to the contravention of a law and give it to a prosecuting authority or a designated police force. The AFP assembled the brief of evidence and provided it to the Commonwealth Director of Public Prosecutions for assessment and prosecution. The information gained through the investigation also provided the basis for the AFP’s decision to terminate Officer A’s employment.
Section 146 also requires the Integrity Commissioner to bring to an agency head’s notice evidence of a breach of duty or misconduct by a staff member. This requirement arises when the Integrity Commissioner is satisfied that the evidence may justify terminating the staff member’s employment or initiating disciplinary proceedings against the staff member and that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so.
In this instance, because ACLEI’s investigation was conducted jointly with the AFP, and the AFP had access to all the information obtained, it was not necessary for the Integrity Commissioner to make a decision about disclosing information under Part 10 of the LEIC Act.  
The LEIC Act requires the Integrity Commissioner to report any findings relating to the corruption issues investigated.
Before I reached my conclusion, I provided Officer A with an opportunity to be heard, as required by section 51(4) of the LEIC Act. In the officer’s response, Officer A took responsibility for his actions, and did not seek to excuse his conduct.
Having regard to the evidence gathered, including his own admissions before the court, I find that Officer A engaged in corrupt conduct.
Officer A took part in a number of overseas deployments in which the AFP participated. Examination of his personnel records indicated he had been removed from one of the several overseas deployments he had undertaken due to alcohol abuse. As this matter was dealt with overseas, and because it did not reach a threshold for gravity, it was not known to AFP PRS before the current investigation was well underway.
While not every person with a substance abuse problem will go on to act unlawfully, such information can provide useful warning signs. Access to this information at an earlier stage may have enabled PRS to maintain a closer watch on Officer A’s welfare and to ensure that he continued to satisfy the requirements for his position and the security clearance it required.
The AFP is considering processes that would enable PRS to access information about such issues so that it can inform both the AFP’s management of personal factors affecting staff members, and the investigation of any later issues.
The AFP has a robust and mature mandatory drug testing regime, although potential vulnerabilities exist, particularly where staff members work on rostered shifts and have a number of concurrent days rostered off. Significant reform has occurred to enable drug testing to occur in a manner that is risk-based and intelligence-led. Cases like this one—whether from the AFP or other law enforcement agencies—will continue to inform drug testing policy in Commonwealth agencies.
An unreleased report on a separate matter in 2016 referred to
the conduct of an ACC staff member who had a non-operational role. In the course of normal duties, this staff member had incidental access to sensitive information.
The investigation established that the staff member—who was on temporary transfer from another Commonwealth Government agency—had an undeclared association with a suspected drug dealer. While under surveillance, the staff member copied a document relating to that person and took the copy from ACC premises.
No indication was found that the information had been communicated to the suspected drug dealer or that the staff member had sought employment with the ACC for an improper purpose.
During the investigation, the Integrity Commissioner disseminated relevant evidence to the ACC and the staff member’s home agency. ACLEI has also provided a brief of evidence to the Commonwealth Director of Public Prosecutions.
Having regard to the prospect of court proceedings and disciplinary actions, the Integrity Commissioner decided to reserve indefinitely any findings.
The ACC has in place pre-employment screening processes that are generally effective. Despite these measures, the investigation shows the risk which arises when a staff member exposes himself or herself to the potential for compromise, and fails to disclose it.
The ACC has since strengthened the guidance it gives to new staff about their obligations to report potential conflicts of interest and has scheduled integrity refresher training for all staff. Accordingly, the Integrity Commissioner made no recommendations.
ACLEI's 2017 report regarding 'Operation Karoola' states
On 12 March 2014, under section 19 of the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act), the then Secretary of the Department of Agriculture—now known as the Department of Agriculture and Water Resources, and referred to in this report as the Agriculture Department—notified the then Integrity Commissioner, Mr Philip Moss, of a corruption issue relating to a staff member, Officer A.
Specifically, the Department had received information suggesting that Officer A had produced forged material to support a quarantine-related application for approval that a food importer had made to the Department.
On 17 April 2014, Mr Moss decided to investigate the issue jointly with the Agriculture Department. As the collection of evidence progressed towards the likelihood of a criminal prosecution, ACLEI’s investigation was also conducted jointly with the Australian Federal Police (AFP).
Section 6(4) of the LEIC Act—as part of the definition of ‘engages in corrupt conduct’—expressly includes conduct engaged in before the commencement of the Act. By implication, this provision has effect following an extension to ACLEI’s jurisdiction, as occurred in the case with the Agriculture Department in July 2013.
The duties of Officer A are in the class of people who are ‘staff members’ of the Agriculture Department to whom the LEIC Act applies—namely, those persons undertaking assessments, clearance or control of vessels or cargo imported into Australia.
The description of the conduct alleged to have been engaged in by Officer A satisfies the definition in section 6(1)(c) of the LEIC Act—namely, “conduct that, having regard to the duties and powers of the staff member as a staff member of the agency, involves, or is engaged in for the purpose of, corruption of any other kind”.
Investigation process
The joint investigation took into account: (a) information obtained from the Agriculture Department (b) statements by a number of people from businesses with which Officer A had dealings (c) records relating to a company controlled by Officer A (d) bank records, and (e) physical documents and computer records obtained following the execution of search warrants obtained under the Crimes Act 1914 at the residences of Officer A and an extended family member.
In addition, a private hearing was conducted with Officer A, pursuant to section 82 of the LEIC Act. This hearing was undertaken following the conclusion of court proceedings for criminal offences against Officer A, to further inform my investigation and to uncover and assess any potential vulnerabilities or compromise to Australia’s biosecurity arrangements.
What the investigation showed
Private quarantine consultancy
Officer A was a long-standing employee of the Agriculture Department whose most recent duties included conducting regulatory inspections at the premises of food importers. In this role, Officer A necessarily became familiar with the Department’s processes and requirements.
From about 2007, Officer A was considering the establishment of a private consultancy to provide services to businesses that had dealings with the Agriculture Department in relation to quarantine and biosecurity regulation. 13. Officer A subsequently created and registered Company B, operating from Officer A’s home. Officer A then recruited clients during interactions with food importers while performing official duties for the Agriculture Department.
Officer A did not seek permission from the Agriculture Department for secondary employment, or otherwise declare to it a financial interest in Company B, despite the general duty to avoid conflicts of interest which applies to all public officials.
Company B traded for almost five years, and in that time generated almost $190,000 in gross revenue.
When trading, Company B assisted importing businesses to complete the application process to be registered as a ‘Quarantine Approved Premises’ (QAP) with the Agriculture Department. At the time this approval was a legislated requirement if a business was to deal with certain imported goods, with the criteria for approval dependant on the nature of the goods.
QAPs have since been replaced by ‘Approved Arrangements’ under the Biosecurity Act 2015. The following discussion relates to the requirements for QAPs that were in place at the time of Officer A’s actions.
QAP Assessments
As part of the approval process, it was a requirement for applicants to designate ‘QAP Accredited Persons’ who were to be responsible for dealing with, or supervised others dealing with, material subject to quarantine. Under the biosecurity framework, an ‘accredited person’ had an important role in ensuring that imported goods are safe for the Australian community. Accordingly, the accreditation of a person who had not personally satisfied the accreditation requirements could present a serious risk to the effectiveness of Australia’s biosecurity regime.
As part of the application process, candidates seeking to become an accredited person were required to enrol in, and complete, mandatory online training facilitated by the Agriculture Department via a contractor.
While operating Company B, Officer A created 72 accounts for clients to take part in the online assessment to become an accredited person. These accounts were all created using Company B’s email address. Officer A also arranged payment through Company B’s bank account to the Agriculture Department’s contractor for the fees payable by those clients.
ACLEI’s investigation considered the activities of two of those clients in detail, and found that:
(a) Mr C is the director of an import company which, following an approach from Officer A, purchased about $3000 worth of services from Company B—including payment for the assessment to become an accredited person to operate a QAP. ACLEI’s analysis of records indicated that Officer A completed the assessment on behalf of Mr C. Mr C told investigators that he never undertook online training or completed the online assessment. He said that Officer A had explained quarantine requirements to him in person, and had arranged for a family member of Officer A to install signage and paint boundaries.
(b) Mr D is branch manager of another food import company. Following an approach by Officer A, he paid an amount of money to Officer A for a number of staff to become accredited persons to work in the business operating a QAP. Officer A provided Mr D’s company with the relevant certificates for its staff members, without the requisite training or assessment being completed.
Officer A subsequently admitted to personally undertaking the online assessments in place of clients in two instances. 
Fumigation compliance
ACLEI’s investigation of Officer A uncovered other instances of possible corrupt conduct. 24. In early 2013, another business, Company E, applied to the Agriculture Department for approval to become a QAP that would handle agricultural products. There were special requirements for such an application, including: (a) it must set out the process for dealing with biosecurity waste, including waste that is not subject to a separate quarantine requirement, and (b) it must include the detail of a standing arrangement with a licensed person who could fumigate the premises against pests at short notice.
In September 2013, an Agriculture Department auditor sent an e-mail that informed Company E that these and other requirements had to be met before the QAP application could proceed.
In October 2013, a staff member of Company E forwarded this e-mail to Officer A, indicating that the company did not have the relevant biosecurity waste disposal procedure or an arrangement with a fumigator. Shortly afterwards, Officer A replied to Company E with “I will do asap”.
Following this exchange, Officer A sent Company E electronic copies of a completed fumigation agreement, together with an operating procedure to deal with biosecurity waste. However, Officer A asked that the e-mail address being used not be forwarded to the Department.
On its face, the fumigation agreement gave the appearance that Mr F—the manager of a well-known company that provided fumigation services to business premises—had agreed to provide fumigation services to Company E.
Company E then submitted the documents to the Agriculture Department as part of its application for QAP status.
Officer A also submitted an agriculture products QAP application to the Department on behalf of another company, Company G. That application also included a document appearing to be a fumigation service agreement signed by Mr F on behalf of the company of which he was a manager.
In May 2014, as part of ACLEI’s investigation, investigators from the Agriculture Department contacted Mr F, who indicated that the documents purporting to be agreements signed by him with Company E and Company G were not genuine, and that copies did not exist in his company’s files.
Part 10 actions
Part 10 of the LEIC Act provides for what the Integrity Commissioner may or must do with evidence and information obtained during an investigation—such as providing it to a prosecuting authority, and referring it to an agency head for disciplinary action.
Disciplinary actions
Section 146 of the LEIC Act requires the Integrity Commissioner to bring to an agency head’s notice evidence of a breach of duty or misconduct by a staff member. This requirement arises when the Integrity Commissioner is satisfied that the evidence may justify terminating the staff member’s employment or initiating disciplinary proceedings against the staff member and that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so.
During the investigation, ACLEI disseminated relevant evidence to the Secretary of the Agriculture Department, and this information informed the Department’s decision to suspend Officer A’s employment in May 2014. Officer A resigned in January 2015.
Court proceedings
Section 142 of the LEIC Act provides that the Integrity Commissioner must assemble admissible evidence relating to the contravention of a law and give it to a prosecuting authority or a designated police force. In this case, Officer A was charged in March 2015 with two counts of abuse of public office under section 142.2(1) of the Criminal Code Act 1995 (Cth) and one count of using a forged document with the intention that it be accepted as genuine by a Commonwealth public official under section 145.1(1) of the Criminal Code.
Officer A pleaded guilty and was sentenced in April 2016 to a total effective sentence of 12 months’ imprisonment to be released forthwith, conditional upon complying with a good behaviour order for two years. The court recorded convictions for all offences against Officer A.  
The LEIC Act requires the Integrity Commissioner to report any findings relating to the corruption issues investigated.
Before I reached my conclusion, I provided Officer A with an opportunity to be heard, as required by section 51(4) of the LEIC Act, and I have taken into account written comments provided. In particular, Officer A asserts that: (a) the almost $190,000 in gross revenue included expenses incurred in the provision of genuine assistance to importers, and (b) clients of Company B carried out the required online training and assessment with no input from Officer A on all but two instances.
Having considered these issues, I am satisfied that Officer A used inside knowledge of the Agriculture Department’s processes to circumvent the Department’s oversight of food importation businesses and, consequently, Australia’s biosecurity arrangements were left vulnerable to compromise.
Accordingly, having regard to the convictions recorded against Officer A and the further information available to me as part of ACLEI’s investigation, I find that Officer A engaged in corrupt conduct.
I make no inference that the businesses that obtained services from Officer A did so with any knowledge of the impropriety of those actions. Indeed, it is entirely possible that Officer A’s official status may have left each of them with the impression that they had complied with the law.
This investigation demonstrates the commercial value of official information and insider knowledge, and illustrates the prospect that corrupt officers can exploit their status as public officials to obtain an unfair financial benefit. In some circumstances—although it is not established in this case—this situation could knowingly give rise to collusive behavior that unfairly advantages one business over another.
Perhaps more importantly in this case, circumventing QAP training processes and falsifying official documents left a number of businesses and individuals without the knowledge or skill to treat potentially serious biosecurity risks. In different circumstances, the impact could have been devastating for Australian agriculture.