The PRESIDENT (Senator the Hon. Stephen Parry) took the chair at 10:00, read prayers and made an acknowledgement of country.
DOCUMENTS
Tabling
The Clerk: Documents are tabled pursuant to statute. Details will be recorded in the Journals of the Senate and on the Dynamic Red.
Details of the documents also appear at the end of today ' s Hansard.
COMMITTEES
Meeting
The Clerk: Proposals to meet have been lodged as follows:
Joint Standing Committee on Migration—public meetings during the sittings of the Senate, from 10 am—
Wednesday, 6 September 2017
Wednesday, 13 September 2017.
Joint Standing Committee on the National Capital and External Territories—public meetings during the sittings of the Senate, from 10 am—
Thursday, 7 September 2017
Thursday, 14 September 2017.
Select Committee on a National Integrity Commission—private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate on Wednesday, 6 September 2017, from 11.30 am.
The PRESIDENT (10:01): Does any senator wish to have the question put on any of those proposals? There being none, we will proceed.
STATEMENT BY THE PRESIDENT
Parliament House: Security
Parliament House: Dress Standards
The PRESIDENT (10:01): On Thursday, 17 August, I indicated that I would reflect on matters that arose during question time that day. These reflections were prompted by Senator Hanson's decision to wear a burqa into the Senate chamber. Wearing this garment completely concealed her identity.
The facts as now known are that after the commencement of question time, Senator Hanson's office contacted Parliament House security asking for an escort to ensure that Senator Hanson could walk to the Senate chamber from her office without any undue interference from the media. Shortly thereafter, a parliamentary security officer stationed near the Senate entrance observed the media photographing a figure completely concealed in a black burqa. The officer asked if the person concealed was indeed Senator Hanson and Senator Burston clearly indicated it was.
Senator Burston also confirmed Senator Hanson's identity to a Senate chamber attendant as they entered the chamber together, and this was conveyed to me by the Clerk. If it was not clear who the person was, then I would have requested that the person be removed under the provisions of standing order 175(2)(b) and standing order 175(4). Senators may recall that I stated:
I've been advised by the clerk via the attendant that the identity of Senator Hanson was established before she entered the chamber.
Since then I have conducted further investigation, including interviewing two parliamentary security officers directly concerned with the incident and established that they were satisfied of Senator Hanson's identity, primarily upon the indication by Senator Burston. The word of Senator Burston alone is, in my view, sufficient.
Two key elements have arisen from this. Firstly, the issue of security of the Senate chamber and Parliament House itself. Secondly, the appropriateness of what Senators should wear into the Senate chamber and the ability of the President or Chair to deal with any such issue.
Let me deal quickly with the security matter first. I want it clearly known that at no point was the integrity of the security of Parliament House ever placed at risk by Senator Hanson, or, for that matter, any person. The practice in place is that any senator, member or any other person entering Parliament House is not permitted through the security screening areas unless that person is clearly identified. Senator Hanson entered the building that day in the normal manner. Senator Hanson donned the burqa in her office, within the secure area of the Senate wing, prior to attending the chamber.
Now to the matter relating to the mode of dress in the Senate Chamber. The standing orders do not regulate dress standards. Odgers' Australian Senate Practice states:
There are no rules laid down by the Senate concerning the dress of senators. The matter of dress is left to the judgment of senators, individually and collectively, subject to any ruling by the President.
That's from the 14th edition of Odgers, page 182. This statement is based on rulings of presidents and chairs of committees from the 1960s and the 1970s and on a report of the House Committee adopted by the Senate in 1972. The House committee concluded:
… rules relating to dress in the Chamber should not be necessary and that the choice of appropriate clothing should be left to Senators' discretion.
This remains the current practice today. In fact, I have on more than one occasion, when senators were wearing garments or sporting attire to highlight a cause, indicated to senators that I did not intend to regulate the mode of dress but asked that senators be mindful of what is worn or displayed in the chamber. On other occasions, I have clearly ruled that clothing containing logos or other promotional material cannot be displayed and requested the removal of such.
Of course, it is a matter for the Senate whether there is a need, or not, to change current practice, so I have today written to the Procedure Committee asking that it consider whether this practice should be modified. In the absence of a clear rule against the use of apparel in this way, I have no formal power to deal with incidents like this. I must say, from a personal perspective, that I am disappointed that the Senate will be asked to consider implementing rules rather than rely upon the personal discretion and good judgement of all senators. Even if the Senate were to consider implementing such a rule, the ability of the chair to enforce the order is completely limited. Unlike the Speaker of the House of Representatives, the President of the Senate does not have the ability to independently remove any senator for a breach of the standing orders. This is something that is well known to senators but is not well known outside the Senate. The only course open to any occupant of the chair is to have the matter put to a resolution of the Senate and for the Senate to decide whether to suspend a senator under standing order 203. It was clear to me at the time that, on the last sitting day, I could not possibly have dealt with the matter in any other way because of the absence of any breach of the standing orders and the absence of any authority pursuant to the standing orders to take immediate action. Therefore, I have also asked the Procedure Committee to consider a possible amendment to the standing orders allowing the President or the Deputy President to enforce standing orders by suspending a senator from the chamber for a period of time.
I table my letter to the committee for the information of all senators. The Senate will in due course be informed of any outcomes when the Procedure Committee or I report back to the Senate. The Senate will be the ultimate arbiter as to whether or not any changes, should they be recommended, be adopted. I am sure that the Deputy President, who is Chair of the Procedure Committee, would willingly accept any suggestions or comments from any senator in relation to this matter. In the meantime, I again reiterate that the mode of dress is a matter for all senators but would ask that the respect and dignity of the Senate is forefront in the minds of each and every one of us when making such decisions. I thank senators.
PARLIAMENTARY REPRESENTATION
Qualifications of Senators
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (10:07): by leave—I move:
That pursuant to section 376 of the Commonwealth Electoral Act 1918, the Senate refers to the Court of Disputed Returns the following questions—
(a) whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation of New South Wales in the Senate for the place for which Senator Fiona Nash was returned;
(b) if the answer to question (a) is "yes", by what means and in what manner that vacancy should be filled;
(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and
(d) what, if any, orders should be made as to the costs of these proceedings.
As honourable senators are aware, on Thursday, 17 August, when the Senate last sat, Senator Nash made a statement to the Senate during the course of which she disclosed that she had a concern in relation to her eligibility to be chosen for the state of New South Wales because of subparagraph (i) of section 44 of the Constitution. Senator Nash was quite forthright, at the earliest opportunity, in raising that issue in the Senate.
The government has taken advice from the Commonwealth Solicitor-General. On the basis of that advice, I can advise the Senate that the government is of the view that Senator Nash is not ineligible to sit and was not incapable of being chosen. Nevertheless, in view of the matters raised by Senator Nash it seems a prudent course for the Senate to make a reference under section 376 of the Commonwealth Electoral Act, which is the purpose of this motion. The facts and circumstances were set out in Senator Nash's statement on 17 August. The history of the matter was related by me during the Senate Legal and Constitutional Affairs Committee spillover hearings on the morning of Friday 18 August. I will not detain the Senate by going over those circumstances again. Suffice it to say that Senator Nash acted very promptly and very properly, and we will be supporting this reference.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (10:10): On behalf of the opposition, I make clear that we welcome the decision of the government to refer the Deputy Leader of The Nationals to the Court of Disputed Returns. Given the clear evidence that she may be a dual citizen, this is the right thing to do. However, we place on the record our grave concerns that the minister is refusing to follow the lead of her colleague, Senator Canavan, and standing aside as a minister. When there are real doubts about your right to sit in this parliament then you ought not be acting as a minister and taking important decisions as a member of the executive until that matter is resolved. Labor urges the minister to reconsider. Labor urges the minister to follow the lead of Senator Canavan, a minister who was put in precisely the same position as Senator Nash, but who, unlike Senator Nash, did the right thing. Senator Canavan said:
Given the uncertainty around this matter, I will stand aside until the matter is finally resolved and resign as Minister for Resources and Northern Australia.
That is the appropriate standard. It is the standard that has been set. It is the standard that should be followed.
Senator DI NATALE (Victoria—Leader of the Australian Greens) (10:11): On the behalf of the Australian Greens, we will also support this referral to the Court of Disputed Returns. I do take issue, however, with some of the comments of Senator Brandis, specifically with regard to the timing. It's my understanding that Senator Nash was aware of this on Monday, and yet it took until almost everybody had left this building late on Thursday for Senator Nash to come into an empty chamber to effectively disclose the fact that she was a dual citizen. I don't think that's prompt, with due respect. I think that's tawdry and I think it's treating this chamber with disrespect.
With regard to the decision to stand aside, we concur absolutely with Senator Wong that a precedent was set. We think that precedent should've gone further and that they should've followed the lead of former Greens senators, Senator Ludlam and Senator Waters, who effectively resigned from their position because of a very clear reading of section 44. However, in the absence of that, Senator Canavan made the decision to stand aside as a minister. That is a precedent that has not been followed by Mr Joyce in the lower house of parliament or now by Senator Nash here in the Senate. It casts a huge shadow over decisions that are being made by both of those ministers and throws this chamber and, indeed, the parliament, open to challenge for decisions made by both ministers while this question mark hangs over their heads. We now know that should a decision be made, for example, to throw a billion dollars at the Adani mine that it will be a decision that is challenged in the courts as a result of these decisions by both Senator Nash and, indeed, Mr Joyce not to stand aside from their positions as ministers.
Finally, another sitting week begins with a referral to the High Court. And we will be here again and again and again unless we have a full and comprehensive audit of all members of this parliament. This is something that needs to be dealt with quickly, regardless of the pain that might be inflicted on the government. Indeed, the Labor Party haven't carried themselves with any degree—I think—of openness or transparency by refusing completely to engage with questions around the eligibility of some of their members of parliament.
We now have every member of this crossbench say, very clearly, that they will subject themselves and members of their teams to a thorough and comprehensive independent audit. And yet we have both the Labor Party and the Liberal Party making it very, very clear that, when it comes to protecting their own interests, they will put their own interests ahead of the public interest. That is something the Greens wholeheartedly reject. My understanding is that every member of this crossbench, with the exception of Senator Leyonhjelm, has shown leadership on this issue and has shown the only way this issue can be resolved is with a thorough and comprehensive audit of all members of this parliament.
Senator HINCH (Victoria) (10:15): I support the government's decision to refer this matter to the High Court, as the Court of Disputed Returns. I also support what Senator Di Natale has said about the timing of Senator Nash going public with this. It was a classic case of the government doing a dump-and-run number at five minutes to midnight. I also support the Greens and the other members of the crossbench on the audit, and I urge the Liberals and the Nationals and the Labor Party to finally acquiesce to having an independent audit of all senators. I also think that Senator Nash should have followed Senator Canavan's example, which was the right example. Senator Brandis, you stood alongside Senator Canavan when he made the announcement that he was stepping down as a minister. I think that Senator Nash should step down as a minister, and so should the Deputy Prime Minister. Mr Joyce should not be leading this country when Prime Minister Turnbull is out of the country.
Senator IAN MACDONALD (Queensland) (10:16): I don't want to prolong this, but the hypocrisy of the Greens political party knows no bounds. Senator Brandis explained the timing of Senator Nash's announcement. Senator McKim, from the Greens political party, was at the legal and constitutional affairs Senate spillover hearing the next day when this matter was raised. It wasn't on the agenda, but, because that committee has a very good chairman, we allowed those questions to be raised. Senator Hinch, who sometimes attends that estimates committee as a participating member—I think he was there on this day—asked questions, as did other senators, including Senator McKim, and it was very clear. As Senator Brandis has said, it's on the record. He didn't waste the time of the Senate by going through that record again. I urge all senators who might be interested in this to have a look at the timing. Senator Nash is without blame. In fact, she did the absolutely right thing almost to the second.
I only enter into this to highlight the hypocrisy of those senators who were there to question this, who went through it all, who understood the issues and who now have the temerity—the dishonesty I might add—to get up in this chamber and raise the issues that they've already fully canvassed, and which were very clearly explained by Senator Brandis. I urge all senators who are interested in this to actually have a look at the Hansard and you will, second by second, see how Senator Nash did exactly the right thing.
Question agreed to.
Qualifications of Senators
Senator XENOPHON (South Australia) (10:18): by leave—I move:
That the following matters be referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act 1918:
(a) whether by reason of s 44(i) of the Constitution there is a vacancy in the representation of South Australia in the Senate for the place for which Senator Xenophon was returned;
(b) if the answer to question (a) is 'yes', by what means and in what manner that vacancy should be filled;
(c) what directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and
(d) what, if any, orders should be made as to the costs of these proceedings.
My parents were born overseas, my father in Cyprus and my mother in Greece. I was born in Australia. I have always considered that I am only an Australian and only an Australian citizen and that my allegiance is only to Australia. Out of an abundance of caution prior to the 2007 election, I renounced any potential rights to citizenship of Greece and Cyprus, and I have confirmation that I am not, nor ever have been, a Greek or Cypriot citizen. However, it came to my attention last month that I may have some form of British citizenship. I approached the British Home Office, and they advised me that in their view I was a British overseas citizen.
Subsequent to that date I have made further inquiries, and, if I ever were a British citizen, I have out of an abundance of caution renounced it—and this renunciation has been confirmed. This matter must now be determined by the High Court of Australia sitting as the Court of Disputed Returns.
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (10:20): The government will be supporting this motion, and we are of the view that Senator Xenophon has done the right thing in proposing this reference. That being said, Senator Xenophon's case illustrates how silly this has become. As the Prime Minister said the other day, if Nick Xenophon is an Englishman, the Pope is a Methodist.
On the basis of the facts as we understand them, and as presently advised, the government are of the view that Senator Xenophon is not disqualified under section 44(i) of the Constitution, and we will be making a submission to that effect in the proceedings before the Court of Disputed Returns.
Question agreed to.
Qualifications of Senators
Senator HANSON (Queensland) (10:21): I seek leave to move a motion relating to a review of the qualifications of senators under section 44 of the Constitution.
Leave not granted.
Senator HANSON: Pursuant to contingent notice of motion I move:
That so much of standing—
The PRESIDENT: Order. A point of order, Senator Wong?
Senator Wong: Through you, Mr President: it's entirely a matter for Senator Hanson if she wishes to extend the courtesy. I understand that there are two senators who were seeking leave to make a short statement. I am wondering if the senator would postpone this debate to enable that to occur and then we can proceed. She is within her rights to move suspension of standing orders. But, if she were prepared to extend the courtesy, it would be appreciated.
The PRESIDENT: Senator Hanson, you've heard Senator Wong's request—rather than point of order—and I'm happy to entertain that. Would you consider the two other matters being dealt with first? It would actually facilitate it all being kept in the same—
Senator HANSON: I'm agreeable to that.
The PRESIDENT: I can guarantee we will come back to you, and you will have the right then to continue.
Qualifications of Senators
Senator HINCH (Victoria) (10:23): by leave—According to media reports, allegedly I could be in breach of section 44 of the Constitution because I hold an irrevocable social security number in the United States and am eligible for a pension in that country, having paid a social security tax for 10 years 50 years ago—a pension I do not claim. The claim is on the breach of a clause that says a person cannot be:
… entitled to the rights or privileges of a subject or a citizen of a foreign power; …
I am not so entitled. I cannot vote in the US or work in the US. I am not a citizen of the United States, nor have I ever held a green card. A superannuation-style pension, I believe, is neither a right nor a privilege in any country. Several constitutional lawyers agree with me and so does the Attorney-General.
After seeking legal advice, the government will not refer me to the High Court. I've been advised by Senator Wong that the opposition agrees with that decision. I think such a referral would be a waste of the High Court's precious time and, possibly, taxpayers' money. I thank Senator Brandis and Senator Wong for their involvement, and I think that that ends the matter. But I do still believe that this chamber should vote to have an independent auditor examine the validity of every member in this chamber and also in the other place. Thank you.
Qualifications of Senators
Senator GALLAGHER (Australian Capital Territory—Manager of Opposition Business in the Senate) (10:24): by leave—In rising to make this statement I note that the High Court sitting as the Court of Disputed Returns will shortly consider the eligibility of a number of parliamentarians, including those who have inherited citizenship by descent through their parents, in the 2016 election. Since the Senate last met, there have been media reports attempting to cast doubt about my citizenship status and, in turn, my eligibility to sit in this Senate. This is the first opportunity I've had to update the Senate on the matters raised since the publication six days ago of an immigration card signed by mother on entering Australia almost 50 years ago. I thank the Senate for giving me the opportunity to do so. I do so to assure the parliament and the people of the ACT of my eligibility to be elected and to serve as a senator in this parliament.
As I informed the Senate in my inaugural speech, I am the Canberra-born daughter of Betsy and Charles Gallagher, who were both born British citizens and who both later became Australian citizens. As part of the ALP's candidate vetting process, I provided information about my parents' and grandparents' places of birth. For my mother, this was in Guayaquil, Ecuador in 1943. As I said in the statement I issued last week, as a result of the investigations by the Labor Party, which included obtaining legal advice, it was determined my mother was not an Ecuadorian citizen and that I had not obtained Ecuadorian citizenship by descent from my mother.
My mother was born in 1943 to British citizens who were in Ecuador, where my grandfather was temporarily working on behalf of the Bank of London. My mother's birth was registered at the British consulate at Guayaquil. Her birth certificate, which was issued by the British consul, describes her birth as a birth within the British consulate at Guayaquil. To the best of my knowledge, my mother's birth was never registered with the Ecuadorian government. I'm unable to locate any record of an Ecuadorian birth certificate despite interrogating family records. It's my understanding that an Ecuadorian birth certificate was never obtained for my mother. Sadly, my mother passed away in 2005, aged 62 years, three years before the 2008 changes to the Ecuadorian constitution cited in the recent media reports. During her life, she never took any steps to attain citizenship of Ecuador. My mother was never an Ecuadorian citizen and, accordingly, I could not obtain Ecuadorian citizenship by descent through my mother.
I am not and have never been an Ecuadorian citizen. However, given recent questions about my citizenship in the media, further legal advice was sought to put to bed a question that was already beyond doubt. A formal opinion has been obtained from an expert on Ecuadorian law, Dr Gabriel Echeverria, together with a legal opinion from Dr Matthew Collins QC on my citizenship status and eligibility to sit as a senator under section 44(i) of the Constitution. Both of these opinions confirm the earlier legal advice received during candidate vetting and confirmed that my mother was not an Ecuadorian citizen, that I did not obtain Ecuadorian citizenship by descent through my mother and that I am not and have never been an Ecuadorian citizen.
Dr Echeverria is the European Union Democracy Observatory on Citizenship's Ecuador and Chile country expert and authored the observatory's Report on citizenship law: Ecuador. He is regarded as the international expert on Ecuadorian citizenship law. The expert opinion of Dr Echeverria concludes that I am not an Ecuadorian citizen nor am I entitled to apply to become an Ecuadorian citizen.
Dr Collins QC practises at the Melbourne bar and at the bar of England and Wales. Dr Collins QC has considered Dr Echeverria's expert report in relation to the circumstances of my mother's birth and has concluded there is no question of my eligibility to serve in this parliament under Australian law, that I am not disqualified under section 44 of the Australian Constitution and that I am constitutionally qualified to sit as a senator.
Since the Senate last met I've also been asked about renunciation of any entitlement to British citizenship. I can confirm that I had renounced any entitlement I may have had to British citizenship by descent from my father. In the mid-1990s I investigated the option of moving to the UK to work. I made inquiries at the time to the British High Commission about living and working in the UK for an extended period. I received the advice that, in order to become a British citizen, I would need to go through a formal application process and that, if I did apply, my application would probably be granted, although it was not automatic. About this time, my father became sick and subsequently died, and so I did not pursue this any further as I needed to remain in Australia with my mother. I never took any steps to become a British citizen and accordingly I was of the understanding that I was not a British citizen.
Prior to entering the Senate on a casual vacancy in March 2015, I was not advised that I needed to renounce any entitlement to foreign citizenship. However, during the pre-election candidate vetting in 2016, the ALP vetting team considered my individual situation and the fact that, since my father had died some 20 years earlier, it was going to be difficult to substantiate his particular circumstances. They advised that, out of an abundance of caution, I should fill out and return form RN, renunciation of British citizenship, to put beyond any doubt that I could obtain British citizenship by descent via my father. Despite my clear understanding that I was not a British citizen, I followed the advice of the ALP vetting team and submitted the paperwork to the UK Home Office together with the required payment on 20 April 2016. I was advised that submitting the declaration of renunciation to the Home Office meant that I had taken all reasonable steps to renounce any entitlement to British citizenship.
I am not a citizen of Ecuador; I am not a citizen of the United Kingdom; I am only an Australian citizen, and I am eligible to serve in this parliament as a senator for the ACT, and it's an honour and a privilege to do so. I thank the Senate.
The PRESIDENT: Thank you, Senator Gallagher. We now return to Senator Hanson. Thank you for your patience, Senator Hanson. You were moving a motion to suspend standing orders.
Qualifications of Senators
Senator HANSON (Queensland) (10:31): Yes. Pursuant to contingent notice of motion, I move:
That so much of the standing orders be suspended as would prevent Senator Hanson moving a motion to provide for the consideration of a matter, namely a motion relating to a review of the qualifications of senators.
The motion that I wish to move on the floor of parliament is:
That:
(1) the Senate notes that the continued uncertainty regarding the qualifications of a number of parliamentarians under section 44(i) of the Constitution is undermining public confidence in the parliament; and
(2) in the interests of restoring the public's confidence, the Senate is of the opinion that senators should work with the government to establish an independent review of the qualifications under section 44(i) of all senators by the end of the sitting week.
I can say—having spoken to the public as I move about the country, and also from calls that I get to my office—that the public have lost confidence in this parliament and the politicians. They've lost confidence in politicians around this country. We need to actually show that we are here doing the right thing by the people. If we are going to not address this issue, I have seen both sides of this parliament close ranks when it comes to proving the eligibility of holding their places in this parliament. If we pass laws in this parliament expecting the people to follow those laws and the rule of law then we must show by example in this chamber and the other place that people are eligible under section 44 of the Australian Constitution.
It has been basically a weekly process here that someone else is questioned over their eligibility. This needs to be put to rest. It is not up to the average person to come up with the documentation; it is up to the chamber, and up to each and every senator here, to prove that they have the right to be here and that they pass section 44(i) of the Australian Constitution.
Senator Brandis has said it is up to the person that is making the allegations to prove them. Well, I ask the chamber: how does anyone get that information? Where are they supposed to get it? They don't. They can't. And therefore, in all honesty, it is up to the chamber now, it is up to the government and it's up to the opposition leader to make a review of all senators in this chamber to prove their eligibility. Then, in further elections, anyone newly elected to this chamber must prove their paperwork that they have.
Questions have come up in this chamber or outside about the eligibility of Bill Shorten, the opposition leader in the other place. He's been questioned. His name has been raised. Also, Senator Wong's name has been raised. Also Senator Dastyari's name has been raised. So there are a few senators here whose names have been raised. Also, there are quite a number from the Labor Party in the lower house. These names have been raised. Why are you closing ranks? Is it because you're frightened of going back to a by-election in which you may lose your seats? Give the public back the confidence and show them that you are prepared to abide by the laws and rules of this country. We have a Constitution. This is the highest law of the land. We are governed by the Constitution, yet you are not prepared to abide by the Constitution and prove to the people of this country your worth and that you will stand by the rules and the laws that we should be abiding by. I think it's disgusting the way you've closed ranks. You did it in 1999 and you're doing it again now. The people have lost confidence in you. They have no faith or trust in the politicians of this country, and no wonder. It's about time you actually got some backbone, showed some leadership and showed the people that you are willing to stand up and be counted.
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (10:35): The government will not be supporting this motion. As I have pointed out in the past, the Senate relies upon senators to behave with integrity, and I believe that members of this Senate have behaved with integrity. Several senators have now stood up and, under no pressure at all but the dictates of their own conscience, have declared that they had a concern that they may be ineligible under section 44 and have referred themselves to the Court of Disputed Returns. We saw that as recently as a few minutes ago in the case of Senator Nash and Senator Xenophon. So we will not be supporting this motion.
I wanted to avoid doing this but because in the brief debate about Senator Nash some remarks were made, in particular by Senator Di Natale, about the timeliness of Senator Nash's referral let me put on the record what happened. On the evening of Monday, 14 August, the government was made aware for the first time of advice from the British Home Office that, on the basis of the limited facts then available, it appeared that Senator Nash may be a British citizen by descent. She advised the Prime Minister early on that Monday evening and the Prime Minister advised me.
I then called the Solicitor-General to let him know that we would be seeking his urgent advice in relation to a possible section 44 matter. I made that call at 7.16 pm on Monday evening, as soon as I left the Prime Minister's office. The Solicitor-General told me that he would be in the High Court for most of the week and wouldn't be able to deal with the matter until he had finished his matter before the High Court. At 1.30 pm on Tuesday, 15 August, my office received an email from counsel assisting the Solicitor-General saying that the Solicitor-General would like to have expert advice from a United Kingdom citizenship lawyer in order to prepare his opinion.
During the course of Tuesday and Wednesday, further information was sought from Senator Nash to identify or establish relevant aspects of her family history. Because both Senator Nash's parents are deceased, it took some time to establish the relevant facts. Meanwhile, my office sought to identify a suitable UK based citizenship law expert, and by Wednesday, 16 August, we had identified a suitable English QC who is an expert on UK citizenship law and was available to provide advice to the government urgently. On Wednesday evening at 7.16 pm, one of my staff emailed John Reid, who is the head of the Office of International Law within the Attorney-General's Department, with instructions to the British lawyer, Mr Fransman QC, requesting urgent advice on the basis of the facts that had been established during the course of that day and the previous day. Mr Fransman agreed to deal with the matter urgently and, on Thursday at 5.40 am, his written advice was sent to my office.
I spoke to the Solicitor-General on Thursday morning. He was still in the High Court but he said he expected to be finished with his matter by Thursday afternoon. I told him that I'd send him Mr Fransman's advice and I said to him words to the effect of 'as soon as you have finished in the High Court, could you please give the government an urgent opinion on the Nash matter'. The advice from Dr Donaghue, the Solicitor-General, was received in my office at approximately 5 pm on Thursday, 17 August. I was in meetings at the time. The Prime Minister dropped into my office at 6.15 pm on Thursday evening to discuss the matter and, at that time or thereabouts, both the Prime Minister and I read Dr Donaghue's advice. The Prime Minister immediately convened a meeting of the governance committee of the cabinet, comprising himself, Ms Bishop and me. The Deputy Prime Minister was unavailable. The governance committee resolved that the matter would be referred to the Court of Disputed Returns under section 376 of the Commonwealth Electoral Act.
The Prime Minister asked Senator Nash to come and see him. She arrived a few minutes later and was acquainted with the advice. A decision was made that it was desirable that the matter of Senator Nash's citizenship should be made public as soon as possible. We decided between roughly 6.30 and 6.50 pm on Thursday evening that Senator Nash should go into the chamber immediately to tell the parliament and the public what the position was. She did so at 7.05 pm—in other words, approximately 50 minutes after the Prime Minister and I first saw the Solicitor-General's advice.
Senator CAMERON (New South Wales) (10:40): Labor does not support the proposal before the Senate. This is just another desperate stunt from One Nation. They just want a focus on them continually—a focus on One Nation. I don't know why they really would want that focus because of the lack of policies and the lack of support they have for ordinary working Australians.
The Labor Party goes through an extremely extensive analysis of any senator and any member's right to stand for parliament and take their position in the Senate or the House of Representatives.
Senator Farrell: Even you got through!
Senator CAMERON: Even I got through, yes. Senator Hanson is raising this because of the incompetence of One Nation in actually taking proper steps to ensure that Senator Malcolm Roberts is eligible to sit in this parliament. I've watched Senator Roberts dissemble before the press on many occasions, trying to justify who he is or what he is. I think all that's happened is that people are even more confused about Senator Malcolm Roberts's position: whether he is an Australian, whether he's Indian, whether he's from the UK, or whether he's got no background at all—whether he's the invisible man. This is an absolute stunt from One Nation.
Mr Shorten, the Leader of the Opposition, Senator Wong and Senator Dastyari all went through extensive and professional analysis of their capacity to sit in parliament. But because One Nation were not professional enough and didn't have the common sense to make sure that someone who was standing for parliament was actually eligible to sit in parliament, they want to reverse the onus of proof on every other senator and MP in this place. It is another stunt and another desperate position from you, Senator Hanson.
Senator Hanson, you've seen what we go through. I went through the process myself. I went through what seems to be a completely different process from Senator Malcolm Roberts. What he has put on the public record bears no resemblance to what I had to do to renounce my British citizenship—absolutely no resemblance. If you want to take bets on what the High Court will do, I wouldn't be putting any bets on Senator Malcolm Roberts coming out squeaky clean in relation to his citizenship; I certainly would not. This is not about closing ranks, Senator Hanson. This is about a professional political party, the Labor Party, actually doing what's required to be done before people stand for the Senate or the House of Representatives. We actually went through a proper, professional process.
Senator Hanson, there would be no by-elections for senators. I thought you would at least understand that basic proposition, given that you have Senator Malcolm Roberts in such problems. Whether it's going to be your sister, another one of your relatives or one of your hangers-on that comes in here to replace you or to replace Senator Malcolm Roberts, who knows? Who knows what that position will be? But it's quite clear that this lot are so unprofessional, so incompetent, that they can't even put their own people through a proper process to make sure they're eligible to sit in this parliament.
There are no closed ranks in this from the Labor Party, just a professional approach to ensuring that people are entitled to be in this place. There's no loss of confidence in the Labor Party; the Labor Party is a strong opposition—an opposition that could end up sitting across the chamber after the next election and actually delivering decent policies for this place. Because you have been unprofessional and you have been incompetent, don't come here and try and put everyone else in the same boat as you. You are incompetent, unprofessional and an absolute racist when it comes to other people in this country. (Time expired)
Senator Hanson: Mr Acting Deputy President, I raise a point of order. I want the reference to me as a racist withdrawn by Senator Cameron.
The ACTING DEPUTY PRESIDENT ( Senator Marshall ): Senator Cameron?
Senator Cameron: I withdraw, reluctantly.
Senator Brandis: Mr Acting Deputy President, that's not a withdrawal.
The ACTING DEPUTY PRESIDENT: Yes, Senator Cameron, you must withdraw without reservation.
Senator Cameron: I withdraw.
The ACTING DEPUTY PRESIDENT: The question is that the suspension motion moved by Senator Hanson be agreed to.
The Senate divided. [10:50]
(The Acting Deputy President—Senator Marshall)
BILLS
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
In Committee
Consideration resumed.
The TEMPORARY CHAIR ( Senator Marshall ) (10:53): The committee is considering the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, as amended, and amendments (1) to (15) on sheet JH138, moved by Senator Cash. The question is that the amendments be agreed to.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (10:53): If I recall rightly, Senator Cameron had posed a question to me in relation to the technical amendments that the government has moved, and the question, effectively, went to: does an accessory to a serious contravention need to know that it was part of a systematic pattern of conduct, or is some other knowledge required? Senator Cameron, in response to that question, I can advise that this amendment clarifies that the usual rules of accessorial liability apply to a serious contravention of the act. This means that an accessory will need to know that the conduct in which they are involved is a serious contravention within the meaning of these new provisions, meaning it is both deliberate and systematic.
Senator CAMERON (New South Wales) (10:54): I thank the minister for that response. On that basis, can I indicate that we will be supporting the government amendments.
Question agreed to.
Senator LEYONHJELM (New South Wales) (10:54): by leave—I, and also on behalf of Senator Bernardi, move Liberal Democratic Party and Australian Conservatives amendments (1) to (6) on sheet 8204 revised 2:
(1) Schedule 1, item 17, page 9 (line 16), omit "affairs.", substitute "affairs; and".
(2) Schedule 1, item 17, page 9 (after line 16), at the end of subsection 558A(2), add:
(c) that influence or control has a material impact on the franchisee entity's compliance or ability to comply with one or more of the civil remedy provisions referred to in subsection 558B(7).
(3) Schedule 1, item 17, page 9 (line 32), after "known", insert ", in the ordinary course of business,".
(4) Schedule 1, item 17, page 10 (line 5), after "known", insert ", in the ordinary course of business,".
(5) Schedule 1, item 17, page 10 (line 18), after "known", insert ", in the ordinary course of business,".
(6) Schedule 1, item 17, page 10 (line 23), after "known", insert ", in the ordinary course of business,".
I won't speak for long. As I outlined in my second reading contribution, item (1) limits the penalty provisions so that they apply to franchisors only if the franchisor influences the franchisee's compliance with employment laws. Items (2) to (6) limit the penalty provisions so that they only apply to franchisors and bodies corporate who knew, or ought to have known, in the ordinary course of business that their franchisees and subsidiaries would fail to comply with employment laws and that the franchisor has a material impact on the franchisee entity's compliance or ability to comply. I commend the amendments to the chamber.
Senator CAMERON (New South Wales) (10:57): I indicate that Labor will be opposing these amendments. These amendments have given even more ground to the Franchise Council of Australia. These amendments simply do the bidding of the Franchise Council. They would narrow the already-too-narrow scope of the civil liability offence for franchisors, applying only to franchisors who have a significant degree of control over the workplace arrangements of the franchisee. In the amendments on sheet 8204 revised 2, that has even been toughened up to talk about 'material impact'.
All these amendments would do is give franchisors an incentive to arrange their commercial relationships with franchisees so that they can claim to have no oversight of or involvement in the way workers are treated or paid. It goes against all the lessons that we've learnt from the 7-Eleven scandal. If the government supports these amendments, it would be a complete capitulation to Bruce Billson and the Franchise Council. It would be a sell-out of all those workers who are being ripped off by companies like 7-Eleven and Caltex, which we've seen so much evidence of over the last period of time. Some of the most vulnerable workers—migrant workers, low-paid workers—are being ripped off by employers who are part of a franchise organisation that sets the rules for these franchisors. So we take the view that agreeing to this would ensure that 7-Eleven would never be fixed and that we would have more evidence and more examples of 7-Eleven coming through. We are about trying to protect vulnerable workers in this country. We are about trying to protect those that are being exploited by companies like 7-Eleven. On that basis, we will not be supporting these amendments.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (10:59): The government will be supporting these amendments, particularly on the basis that, in looking at the amendment, they actually respond to the Senate committee's inquiry on this bill, which recommended that the reach and intent of the bill be clarified. These items amend the proposed definition of 'responsible franchisor entity' in subsection 558A(2) of the bill to clarify that the new franchisor responsibilities only apply to an entity that has a significant degree of influence or control over the franchisee entity's affairs and that the influence or control has a material impact on the franchisee entity's compliance or ability to comply with their obligation to pay workers appropriately.
What the amendment actually does is not only respond to what the committee report has actually asked the Senate to respond to—so clarifying the reach and intent of the bill—but also seek to explicitly clarify, as I said, that franchisors may be liable under the bill where the significant influence or control they exercise over their franchisees has a material impact on the franchisee entity's compliance or ability to comply with their obligation to pay workers appropriately. The amendments also ensure that the assessment of what could reasonably be known by a franchisor about their franchisees is determined in the context of the ordinary course of business. Again, as I said, this actually does respond to an issue that the Senate committee report itself actually asked the Senate to address, so I thank Senators Leyonhjelm and Bernardi for proposing the amendment, and the government will be supporting it.
Senator CAMERON (New South Wales) (11:01): Surprise, surprise—Senator Cash has capitulated to Bruce Billson. He was a former cabinet minister who, while on the government payroll and still a member of parliament, was accepting a payment from the Franchise Council. This is absolutely ridiculous. This just demonstrates that Bruce Billson was in there ensuring that this government does not look after workers that are in a vulnerable position. This makes it more difficult for workers who are being exploited to actually get some fairness within the system. This is a government that is prepared to amend its own legislation because a former cabinet minister who was on the payroll of the Franchise Council while they were still a member of parliament gets his way. This is not something that should be supported in here. This continues this government's lack of concern for exploited workers in this country. This continues a process that this government is happy to capitulate to. That means that, if you are a poor, vulnerable worker, you can be exploited in this country.
This does not deal with the issues of 7-Eleven. Surely, Minister Cash, you are aware of what happened to workers under that 7-Eleven process. You then came and developed amendments to the act to deal with this, yet, when your former cabinet minister knocked on your door and knocked on the doors of Senator Leyonhjelm and Senator Bernardi, what happened? They just capitulated. Here we are, the far Right of politics in this country, lining up with the far Right in the coalition to knock workers' rights off. That's what this is about. It's hear no evil, see no evil—just let everything happen to workers at 7-Eleven and Caltex. Franchisors have no responsibility for trying to ensure that workers get a fair go in this country. We know that we will never get a fair go under the coalition. But, every now and again, I would have thought that Senator Bernardi might have had some little comprehension or understanding of the rip-offs that take place. Senator Leyonhjelm probably wouldn't. But, Senator Bernardi, maybe you should have some understanding. This is about workers getting ripped off by some of the most powerful companies in this country. Again, I suppose it was not a problem when the former owner of 7-Eleven was a high-ranking Liberal apparatchik.
This is about the government. This is about Senator Cash. This is about the coalition using Senator Bernardi and Senator Leyonhjelm as stalking horses to try to get changes to their own legislation after big business and the Franchise Council have said to the government, 'We don't like it.' Bruce Billson comes in, knocks on the door, and workers are put at the bottom of the pack. This is unacceptable. This is just another example of a government that doesn't care about what happens to poor and vulnerable workers in this country. We will not be supporting this amendment. Anyone who has any comprehension of the problems that vulnerable workers are facing in this country would not support this. We think this is a complete capitulation by the minister and by the coalition to a former cabinet minister who was taking money from the Franchise Council while he was still in government. This is a problem for vulnerable workers in this country and it should be opposed.
Senator BERNARDI (South Australia) (11:06): I feel I should respond to Senator Cameron, if only briefly, to say I am concerned about vulnerable workers in this country, but I do think it is incumbent upon us to remind the Senate and the Australian people that those who have traded away workers' entitlements to the detriment of the workers themselves have basically been the union bosses. The union bosses have engorged themselves and their organisations at the expense of some of our lower paid workers. They've traded away concession penalty rates on Sunday and award rates to big business. I find it galling that Senator Cameron dares to stand up in this place saying how he's the champion of vulnerable workers when his comrades on the other side of the chamber have been so diligent in selling out regular workers to big business. We have seen the Leader of the Opposition, Mr Bill Shorten, receive campaign funds from a union, his own union, that traded away workers' entitlements.
Ultimately, this is a cosy stitch-up between big business and the union movement. I am not interested in furthering a cosy stitch-up. I'm interested in independent enterprise. I'm interested in fostering free enterprise in this country and allowing people to have jobs and businesses to actually make money. I make no bones about that. I think a successful business should be able to make some money and provide for its employees. It will further investment in this country.
I have grave reservations about this bill, but I am trying to uphold, with Senator Leyonhjelm, the principle that, should this bill be successful, independent businesses are independent businesses. A franchise shouldn't just be an extension of the franchisor. It should be an independent business in its own right. Those on the other side of the chamber want to see them dealt with as big businesses so that their workforces can come under the spell of having their entitlements traded away to the benefit of the unions themselves. These are the real issues at work here. I don't believe that more regulation is necessary. I think, in actual fact, what we should be doing is taking away the burdens and the impediments to people being productive and to being successful in business in this country. That means we need to deregulate. It means we have to get the unions away from deregulating or from trading away workers' entitlements. We need to get government out of the system. We can fuel prosperity across this whole country should we go down that path. So, we are trying to improve what I think is a deeply flawed piece of legislation. It is built around the principle that independent businesses should be able to run independently under the rule of law rather than under the yoke of the union movement or under the yoke of oppressive government.
Senator CAMERON (New South Wales) (11:09): That is typical of Senator Bernardi—immediately saying this is all the problem of the union movement. Senator Bernardi, let me tell you: there was no union involvement with 7-Eleven. This was a former high-ranking Liberal office holder, who was one of the richest men in this country, ripping off workers day in, day out.
Senator Bernardi: Just like Bill Shorten did.
Senator CAMERON: Senator Bernardi, you can rail all you like, but this is pretty typical of you—living a life that is full of wealth and full of privilege. Sitting in this place on a minimum rate of $200,000 per year, you wouldn't understand what it's like, you wouldn't have a comprehension of what it is like, for somebody in 7-Eleven to have their wages ripped off through a 'hear no evil, see no evil' approach by 7-Eleven. Some of the worst people in this country—some of the richest people in this country, who own 7-Eleven—are ripping young people off, ripping migrants off and ripping workers off mercilessly. Yet you want a government where there is no regulation to support those people.
I can't understand why Senator Cash, who sits down with the department and works out all the issues that she wants to deal with, suddenly comes here and capitulates to Senator Leyonhjelm, capitulates to Senator Bernardi and capitulates to Bruce Billson in the Franchise Council. This is just a nonsense. These workers need regulation. They are the most vulnerable workers in the country; they need regulation. We need to make sure that if they go on a job they get paid properly for the work they do—a fair day's pay for a fair day's work. It doesn't happen with 7-Eleven and it doesn't happen with the Franchise Council, but all we hear from Senator Bernardi is: get government out, get unions out, leave workers to try and deal with some of the richest and most powerful people in the country. It doesn't work that way. Workers in this country need regulation. Workers in this country need legislation to support them. Young workers, who can easily be exploited, need rules, regulations and laws that give them a fair go.
Yet what this minister is doing, what these crossbench senators are doing, is proposing that these workers should be left exposed to some of the most powerful people in the country and that 7-Eleven should have absolutely no accountability for what happens in stores with their name above the door. All they want is for 7-Eleven franchisors to pick up all the profits and to have no accountability and no responsibility. That is absolutely unacceptable. The government, again, is demonstrating that, when it comes to the crunch, they make a lot of noises about looking after people, but that is just an absolute farce. We had WorkChoices under this government and we've had ABCC bills under this government. This bill now is simply saying to franchisors: just pretend you don't know there's a problem, and then you have no responsibility for the ripping off of vulnerable workers in this country. It really beggars belief that we have gone through the expose of workers in 7-Eleven, workers in Caltex and workers on farms in regional Australia being ripped off under franchise systems, and companies then say: 'We don't care. We don't care what happens to those workers. Even though the goods are being sold in our shops, we don't care. Even though we are making massive profits out of the exploitation of these workers, we don't care.'
And this is a 'We don't care' amendment from Senator Leyonhjelm and Senator Bernardi, supported by Senator Cash. They don't care what happens to workers in this country. They don't care if workers can't put a meal on the table. They don't care if an employer says to a worker, 'I'll pay you what I'm supposed to pay you legally but you will give me money back.' They don't care about that. I just can't believe that in this argument for small government Senator Leyonhjelm would just abandon vulnerable workers in this country. Well, it does make a bit of sense when you see what Senator Leyonhjelm does in this place: he's basically a rubber stamp for the coalition. So you can rubberstamp this again, Senator Leyonhjelm. You can lie in bed at night when workers are out there working all night at 7-Eleven, getting ripped off, and it will be your doing and Senator Bernardi's doing, under Senator Cash's watch.
Under Senator Cash's watch, workers in this country get ripped off terribly. Senator Cash gets up and makes noises about supposedly caring about workers. This bill was supposed to be about ensuring that workers get a fair go, but at the first sign from the Franchise Council, when the extreme Right wing of this Senate gets up and moves an amendment, what does Senator Cash do? She gets up and capitulates. She has absolutely no credibility when it comes to looking after workers who have been ripped off with their penalty rates, workers who have been ripped off with their annual leave loading, workers who have been paid and then have to pay money back, workers who are being charged thousands of dollars to get a job, workers who have been sent off to training and have had to pay for it themselves at a premium, and workers who have to supply their own cars and petrol. These are workers who are vulnerable, yet this government doesn't care. Senator Leyonhjelm doesn't care. Senator Bernardi doesn't care. This is an absolute disgrace.
This is about Labor standing up for workers who can't stand up for themselves. We do need regulation. We do need laws to support vulnerable people in this country. That's why we have a parliament: to make sure that young people don't get ripped off, to make sure that all workers can go to work and not be ripped off. But to try to conflate this as some agreement that a union might come to with an employer where wages are increased in one area and penalty rates reduced in another is an absolute nonsense. This is about saying that franchisors who have their name above a company, above a garage, above a service station, have responsibility to make sure that the laws of this land are imposed effectively.
They just want to walk away. They don't want to accept any responsibility. I can understand that the government does not want workers to have a fair go in this country. This is a government that would do anything to try to destroy effective collective bargaining. They would do anything to try to destroy effective trade unionism in this country. But by simply turning a blind eye, which this amendment does, to the rip-offs and scandals that companies like 7-Eleven have perpetrated on workers in this country is an absolute disgrace. Senator Cash must have thought that it was worthwhile doing this, or the bill wouldn't have been here in the form in which it was presented.
I did indicate in my speech on the second reading that the pressure was on the government, through the Franchise Council, who are some of the biggest donors to the Liberal Party in this country. The donations come in from 7-Eleven to the Liberal Party, and now the payback is on. That's what this is about. This is about big business buying its way out of any regulations and any laws that impose proper oversight by them on the franchisees that they set up under their name and that end up ripping people off. This is an absolute disgrace.
In this country we really need a government that understands how tough it is for working people; how important it is for working people to have access to penalty rates; how penalty rates actually put food on the table; and how penalty rates let some families send their kids off to school with a decent pair of shoes. This is a government that would have workers in complete servitude if they could. We know their pedigree, we know their background: Work Choices, where the bosses get complete control over workers; where penalty rates can be taken away; and where the union movement can't get access to actually represent the workforce. Yet, on this, where 7-Eleven and Caltex and other big franchisors have turned a blind eye to some of the worst rip-offs in this country, suddenly we find at this late stage that the government won't even stand up for what were pretty ordinary amendments. They want to weaken them even further.
Bruce Billson has done the job on Senator Cash. Bruce Billson has done the job on Senator Leyonhjelm. Bruce Billson has done the job on Senator Bernardi. How ridiculous is it that someone who was in here, a former cabinet minister, was taking money from the Franchise Council while he was still a member of parliament and then has the gall to go around to Senator Cash's office, to Senator Leyonhjelm's office and to Senator Bernardi's office and say, 'This is a terrible thing. We shouldn't really look after exploited workers. Please let 7-Eleven off the hook, please let Caltex off the hook, please let big franchisors off the hook.' They should simply be able to say, 'Well, we don't know what's going on down there,' even though it is their company's name above the door. 'Workers should be allowed to be ripped-off. The penalty rates should be allowed to be taken away. They shouldn't need proper accountability, in terms of what's being paid to some of the poorest and some of the working poor in this country.'
This is a complete capitulation by the right wing of this Senate to big business. This is a complete capitulation to allowing free rein for the rich and the powerful against the weakest people in this country. This is absolute nonsense. The franchisors have a significant degree of control. They can set the payments and they can set the conditions that ultimately lead to what workers are being paid on the job. They have complete control over what happens for franchisees. Franchisees are not independent businesses with no allegiance to someone else. Franchisees have to sign off on codes of conduct and on terms and conditions that are put on them by companies like 7-Eleven, yet when workers are being ripped off 7-eleven says, 'No, we have nothing to do with it.' That's what this government is prepared to capitulate to. Senator Cash, under her watch, sees apprentices being ripped off, the working poor being ripped off, workers' penalty rates being ripped off, and she won't stand up for penalty rates for workers. Senator Cash has the DNA of Work Choices there.
But, Senator Leyonhjelm, you and Senator Bernardi should understand how tough it is for some working people. You should actually be exercising some logic and some common sense instead of giving Senator Cash the excuse to capitulate to the Franchise Council and Bruce Billson. I think it is a nonsense.
Senator LEYONHJELM (New South Wales) (11:25): I don't normally respond to these sorts of speeches and, especially, I don't normally respond when I'm personally mentioned, but I think in this case, sir, it warrants a response. Senator Cameron suggests that I don't care about vulnerable workers. Let me explain, Senator, why I am proposing this amendment: it is because I do care about vulnerable workers. In fact, I care so much about vulnerable workers that I think this bill shouldn't pass at all, really.
Now, the point is, of course, that vulnerable workers include people who are, essentially, unemployable. When you think about who might be unemployable, they might include former senators—former Labor senators. I understand, Senator Cameron, that you are proposing to retire from the Senate at the next election. If my memory serves me correctly, you were elected prior to 2004, so you are probably eligible for a parliamentary pension. On the other hand, let's suppose my good friend and colleague Senator Dastyari were to lose his seat at the next election. What would he do to support his wife and two very charming daughters? He would need a job. Now, he is essentially unemployable—that's the bottom line. What could he do? He could take out a franchise. It's a create-your-own-job opportunity to get your own franchise. I've been thinking about what kind of franchise might be suitable for Senator Dastyari or, indeed, Senator Cameron, if he needed to work after retiring from the Senate. A Swimart might be a possibility. Jim's Mowing might also be a possibility. But I think particularly for Senator Dastyari that Dunkin' Donuts would be the go. The point is that, if he didn't have Dunkin' Donuts available, he would be on welfare.
I care a great deal about vulnerable workers but I particularly want to keep them out of the welfare system and generating income. Why? To quote another person with an accent very, very similar to Senator Cameron's: 'I've tried poor. I've tried rich. And rich wins.' His name is Billy Connolly. Even for unemployable former senators who are vulnerable, I think a franchise is better than being poor.
Senator RHIANNON (New South Wales) (11:27): With the legislation before us, we can see the Turnbull government giving another leg-up to very rich, very powerful companies—companies whose business model is based on underpayment of workers. This has been further entrenched by the minister, Senator Cash, rolling over and supporting these amendments from the Liberal Democrats. Why is she doing it? She still hasn't given us an explanation for rolling over. The government might put a fancy title on this bill, which says it is about protecting vulnerable workers, but we know, when the coalition, the Liberal-Nationals, come up with titles like that, the intent is very different, and that is absolutely the case here.
We are talking about franchisors like Caltex, 7-Eleven and Domino's, who make millions of dollars in profits off the backs of vulnerable workers—workers who are largely isolated at their places of work, which are usually not unionised, who have maybe a little English and who are often just out of school. It is very hard for them to stand up for themselves. How do you take on some of these very big, powerful companies that have all the experience under the sun on how to dodge, weave and get away with not giving decent wages and fair conditions to these workers? The level of exploitation—and I pay tribute to many of the journalists who have reported on this issue in detail, as well as the unions who have taken it on so strongly—and the profits of these companies show why they're sticking with their business model and why the minister is locking that in even further. Caltex made a $610 million full-year net profit in 2016. Dominos pulled in a net profit of $103 million, up 25 per cent on the previous year. How did they pull off a 25 per cent increase on the previous year? Some people might say it's a successful company; lots of people eat their pizzas and believe the Dominos slogan that they're the world leader in pizza delivery. But that's not why they are pulling in those profits. They're pulling them in because of the extreme exploitation and underpayment of workers, and it is so hard for workers to recoup their money when they work out what's happened to them. The way these companies dodge and weave is ruthless.
Then we have the other aspect going on here, which is former Minister Billson. This is a scandal the Turnbull government largely got away with—another minister abusing his position was swept under the carpet. It looked like he was well ahead of many other ministers, who were waiting to take up their lobbying activities when they left parliament—he was doing it when he was in parliament, working for franchisors, effectively campaigning and working against many of the small-business communities that he was supposed to be the minister for. He had chosen one sector, the franchisors, to really get behind, really back, and had been lobbying his own ministers in this place. So what we have before us are well and truly the Billson amendments, and the minister should explain why she's backing these amendments to a government bill. I know we have such amendments now and then, but this has gone too far. This bill is not about protecting vulnerable workers—it should be renamed the ripping off vulnerable workers bill.
The CHAIR: The question is that amendments (1) to (6) on sheet 8204 revised 2 be agreed to.
The committee divided. [11:36]
(The Chair—Senator Lines)
Senator CAMERON (New South Wales) (11:39): by leave—I withdraw opposition amendment (31) on sheet 8144 and move opposition amendment (1) on sheet 8218 as a replacement:
(1) Schedule 1, item 38, page 19 (line 1) to page 20 (line 13), omit section 712A, substitute:
712A Minister may nominate AAT presidential members to issue FWO notices
(1) The Minister may, by writing, nominate an AAT presidential member to issue written notices (FWO notices) under section 712AB.
(2) The Minister may nominate an AAT presidential member who is a Judge to issue FWO notices under section 712AB only if the Judge has consented, by writing, to the nomination.
(3) A nomination ceases to have effect if:
(a) the nominated AAT presidential member ceases to be an AAT presidential member; or
(b) the Minister, by writing, withdraws the nomination.
(4) A nominated AAT presidential member has, in performing a function of or connected with issuing an FWO notice under this Subdivision, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
712AA Fair Work Ombudsman may apply to nominated AAT presidential member for FWO notice
General requirements
(1) The Fair Work Ombudsman may apply, in writing, to a nominated AAT presidential member for the issue of an FWO notice referred to in subsection (2) if the Fair Work Ombudsman believes on reasonable grounds that a person:
(a) has information or documents relevant to an investigation by an inspector into a suspected contravention of a provision of this Act, a fair work instrument or a safety net contractual entitlement that relates, directly or indirectly, to:
(i) the underpayment of wages, or other monetary entitlements, of employees; or
(ii) the unreasonable deduction of amounts from amounts owed to employees; or
(iii) the placing of unreasonable requirements on employees to spend or pay amounts paid, or payable, to employees; or
(iv) the unfair dismissal of an employee; or
(v) the bullying of a worker at work; or
(vi) the unlawful discrimination of a person in relation to employment; or
(vii) a contravention of a provision of the National Employment Standards; or
(viii) the coercion of an employee by an employer; and
(b) is capable of giving evidence that is relevant to such an investigation.
(2) The FWO notice may require the person:
(a) to give information to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or
(b) to produce documents to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or
(c) to attend before the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman who is an SES employee or an acting SES employee, and answer questions relevant to the investigation.
Form and content of application
(3) An application for an FWO notice must:
(a) if a form is prescribed by the regulations—be in that form; and
(b) include any information prescribed by the regulations.
(4) An application for an FWO notice must not relate to more than one person, but may relate to more than one investigation.
Application must be accompanied by affidavit
(5) An application for an FWO notice must be accompanied by an affidavit by the Fair Work Ombudsman including the following:
(a) the name of the person to whom the application relates;
(b) details of the investigation (or investigations) to which the application relates;
(c) the grounds on which the Fair Work Ombudsman believes the person has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations) referred to in paragraph (b);
(d) details of other methods used to attempt to obtain the information, documents or evidence;
(e) the number (if any) of previous applications for an FWO notice that the Fair Work Ombudsman has made in relation to the person in respect of the investigation (or investigations) referred to in paragraph (b);
(f) information about whether the Fair Work Ombudsman has made, or expects to make, any other applications for an FWO notice in relation to the investigation (or investigations) referred to in paragraph (b) and, if so, the persons to whom those applications relate.
Further information
(6) A nominated AAT presidential member to whom an application for an FWO notice is made may request the Fair Work Ombudsman to give the presidential member further information in relation to the application.
(7) If a request for further information is made under subsection (6), the Fair Work Ombudsman must give the further information in writing as soon as practicable after receiving the request.
712AB Issue of FWO notice
(1) A nominated AAT presidential member to whom an application for an FWO notice has been made must issue the FWO notice if the presidential member is satisfied of the following:
(a) that an inspector has commenced the investigation (or investigations) to which the application relates;
(b) that there are reasonable grounds to believe that the person to whom the application relates has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations);
(c) that any other method of obtaining the information, documents or evidence:
(i) has been attempted and has been unsuccessful; or
(ii) is not appropriate;
(d) that the information, documents or evidence would be likely to be of assistance in the investigation (or investigations);
(e) that, having regard to all the circumstances, it would be appropriate to issue the FWO notice;
(f) any other matter prescribed by the regulations.
(2) A nominated AAT presidential member must not issue an FWO notice except in the circumstances referred to in subsection (1).
(3) An FWO notice must not be issued in relation to more than one person, but may be issued in relation to more than one investigation.
(4) If:
(a) an application for an FWO notice is made in relation to more than one investigation; and
(b) the nominated AAT presidential member to whom the application is made is not satisfied of the matters referred to in subsection (1) in relation to each of those investigations;
the nominated AAT presidential member must issue the FWO notice in relation to the investigation (or investigations) in relation to which the nominated AAT presidential member is satisfied of the matters referred to in subsection (1).
712AC Form and content of FWO notice
An FWO notice must:
(a) if a form is prescribed by the regulations—be in that form; and
(b) if the notice requires a person to give information under paragraph 712AA(2)(a)—specify the time by which, and the manner and form in which, the information is to be given; and
(c) if the notice requires a person to produce documents under paragraph 712AA(2)(b)—specify the time by which, and the manner in which, the documents are to be produced; and
(d) if the notice requires a person to attend to answer questions relevant to an investigation—specify the time and place for the attendance; and
(e) be signed by the nominated AAT presidential member who issued it; and
(f) include any other information prescribed by the regulations.
712AD Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued and vary time for compliance
Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued
(1) If a nominated AAT presidential member issues an FWO notice, the Fair Work Ombudsman may give the notice to the person in relation to whom it is issued.
(2) If an FWO notice is not given to the person in relation to whom it is issued within 3 months after the day on which it was issued, the notice ceases to have effect at the end of that period.
Variation of time for compliance with FWO notice
(3) If:
(a) the Fair Work Ombudsman gives an FWO notice to a person under subsection (1); and
(b) the time specified in the notice under paragraph 712AC(b), (c) or (d) is not at least 14 days after the notice is given to the person;
the Fair Work Ombudsman must, at the same time as the FWO notice is given to the person, also give notice to the person of a time later than the time specified in the notice.
(4) The Fair Work Ombudsman may, at any time after giving an FWO notice to the person in relation to whom it is issued, give notice to the person of a time later than the time:
(a) specified in the notice under paragraph 712AC(b), (c) or (d); or
(b) notified under subsection (3).
(5) A later time notified under subsection (3) or (4) must be at least 14 days after the FWO notice is given to the person.
(6) If the person is notified of a later time under subsection (3) or (4), the FWO notice has effect as if the later time (or the latest of those times) were the time specified in the FWO notice.
712AE Conduct of examination
Legal representation
(1) A person attending before the Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may be represented by a lawyer if the person chooses.
Oath or affirmation
(2) The Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may require the information or answers to be verified by, or given on, oath or affirmation, and either orally or in writing. For that purpose, the Fair Work Ombudsman, or any member of the staff of the Office of the Fair Work Ombudsman, may administer the oath or affirmation.
(3) The oath or affirmation is an oath or affirmation that the information or answers are or will be true.
We commenced debating this earlier in the piece, and over the break there have been some constructive discussions with Senator Xenophon on this matter. I think we've reached agreement on how we should proceed with this, so I'm happy for this to go very quickly to a vote.
The CHAIR: Senator Cameron, just for the sake of the chamber, of the amendments on sheet 8144, the only one you're withdrawing is amendment (31). So you're moving amendments (28) to (34) minus (31), and then amendment (39)?
Senator CAMERON: Yes.
The CHAIR: Thank you.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (11:40): Could I just clarify, therefore, that, in terms of the amendment we have before us, the change is actually in relation to the limitation of the FWO powers which you've expanded as per the conversations over the break, away from this place?
Senator CAMERON (New South Wales) (11:40): Yes, that's correct.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (11:40): And Senator Cameron is correct: this was previously moved and discussed the last time this bill was before the Senate. The government continues with its objections to this particular amendment. We do acknowledge that the opposition has, however, taken into consideration some of the issues that were raised in debate the last time we met in this place. I do note, for example, they have now added, at clause (viii), 'the coercion of an employee by an employer', and certainly that was one of the issues that were raised by the government in terms of our opposition to this particular amendment.
The issue we still have, though, for the record, is that the Labor Party, or the opposition, is still proposing to limit the Fair Work Ombudsman's powers. The government maintains that, in a very basic form, this is bad law. What you're actually seeing by this amendment is that the list of powers that the Fair Work Ombudsman is able to exercise is incomplete, it is fragmented, and quite frankly, if passed today, is a lawyers' feast in terms of technical and potentially time-wasting objections by recalcitrant employers in underpayment cases. There is no mention of non-monetary entitlements or adverse action generally. It would obviously assist in making this amendment better—in the event that Senator Xenophon is prepared to support the opposition's amendment—if non-monetary entitlements and adverse action were added to the opposition's amendments. It might be that Senator Xenophon is proposing to do that, but we will have to wait and see.
Again, in terms of the Fair Work Ombudsman's powers and the opposition's amendment, what the Labor Party effectively want to do is to tie the hands of the Fair Work Ombudsman, which is a little ironic, considering the Fair Work Ombudsman was appointed by the Labor Party to enforce the laws that the Labor Party themselves introduced when they were last in government. Under the proposed amendment, the ombudsman would have additional powers to seek evidence from witnesses, but only in relation to the subset of breaches of the act—which, again, is a Labor Party act. So the opposition are actually seeking to limit the scope of the Fair Work Ombudsman's investigating powers that they themselves created the last time they were in government.
In terms of the concerns that the government has—and, again, Senator Xenophon may well address some of these concerns when he stands to address the amendment—the proposed amendment means that the Fair Work Ombudsman would not be able to conduct examinations under the new provision to obtain evidence they cannot otherwise get. And we do need to remember that. These powers can only be exercised in the event that the Fair Work Ombudsman has not been able to get the information in the normal course of events. They are in relation to a wide range of unlawful behaviour, including record-keeping failings, false records, adverse action, coercion other than coercion of an employee by an employer, undue influence or pressure, misrepresentation of workplace rights, sham contracting, non-monetary breaches of industrial awards or agreements, and not complying with Fair Work Commission orders. For example, if an employer fails to pay an employee's unfair dismissal compensation, this will not be able to be investigated by the Fair Work Ombudsman.
What I've just read out is the type of conduct that was seen in the 7-Eleven scandal, where vulnerable workers were threatened if they complained about their wages, and franchisees systematically falsified record-keeping systems. This is the big issue. In terms of limiting the powers, effectively what we're saying is that 7-Eleven, should they go down the course of action that they've previously gone down, will continue to get away with that behaviour because the parliament itself has said that it is going to limit the powers of the Fair Work Ombudsman to take into account only a very small subset. In particular in relation to record-keeping failings, false records, adverse action and coercion, the government believes that these do need to be included because otherwise the law is deficient.
Given that I did address this the last time that we were here and that the government's position is clearly articulated in the Hansard, for the time being I'll leave my comments at that and listen very carefully to what Senator Xenophon has to say.
Senator CAMERON (New South Wales) (11:46): The assertions that are being made by the minister are just not true. The bottom line here is that we were very concerned that this would open up a whole range of attacks on workers' representatives and the right of unions to carry out their responsibilities, the same way as the ABCC continually interfered in relation to the legitimate operation of the trade union movement. This is a government that can't be trusted when it comes to workers' rights. It just cannot be trusted. Even when we did, in this place, move legislation in relation to the ABCC, the former minister, Minister Abetz, and the then Prime Minister, Prime Minister Abbott, directed the ABCC not to deal with any issue that went to workers being ripped off. Their whole focus was to attack the trade union movement. This bill, if it goes down the way the minister wants, will be another Trojan Horse to diminish the capacity of the trade union movement to service its members effectively.
We believe the amendments that have been moved, the areas that are covered, deal with the issues that the minister has outlined. All you have to do is go to sheet 8218 to see that 712AA(1)(a)(vii) goes to a contravention of a provision of the National Employment Standards. It goes to the issue that the minister was concerned about, and that was coercion. But what it does ensure is that we can't have another situation like we had under the ABCC, when this place passed legislation and the Prime Minister and the minister then directed an agency not to deal with what we had determined it should be, which was to look after workers' rights as well. This government has form when it comes to these issues.
We are convinced that the discussions we've had with Senator Xenophon, the agreement we have with Senator Xenophon, meets the concerns that the minister had—the genuine concerns, not the rubbish that's been put up to try and muddy the waters on this. It actually goes to the issue of what this bill was supposed to be about. This bill was supposed to be about protecting vulnerable workers, not giving some powers to the Fair Work Ombudsman to attack workers' right to be properly represented by their union.
The TEMPORARY CHAIR ( Senator Gallacher ): Senator Cameron, before you resume your seat, is it your intention that 8218 be dealt with along with the amendments on 8144?
Senator CAMERON: Yes.
Senator XENOPHON (South Australia) (11:50): I have a number of questions to ask of Senator Cameron in relation to this, and also perhaps the minister as well. It seems that the nub of this is the concern of the opposition that simply having carte blanche, in terms of powers of the Fair Work Ombudsman, would somehow be some Trojan Horse in relation to somehow being some backdoor ABCC-type powers. I don't think that's what the intention of this legislation is. The fact that the Franchise Council has been so vehemently opposed to this legislation, including some key business groups, indicates that this legislation will do a lot of beneficial work in terms of assisting vulnerable workers, and I commend the minister for that. So I think it's unfair to say that this is somehow some Trojan Horse.
I've had useful discussions with the minister's office and Senator Cameron's office in relation to this. I thought that the amendments proposed by Senator Cameron in relation to confining the coercive powers of the Fair Work Ombudsman to the matters set out in the amendment for the new proposed section 712AA subsections (1) to (7)—including the issue of coercion of an employee by an employer, underpayment of wages, unreasonable deductions, unreasonable requirements of employees, unfair dismissal, bullying, unlawful discrimination, contravention of provisions of the national employment standards—would cover the matters that I think the government is proposing. But I understand that the government's point is that there may be difficulties in relation to other matters such as adverse action, record-keeping failings, false records, undue influence—which I suppose could be covered by coercion—misrepresentation of workplace rights and industrial activities, and sham contracting. My understanding of the government's position is that these are the sorts of things, the kind of conduct, that we saw in the 7-Eleven scandal, where vulnerable workers were threatened if they complained about wages and conditions and about the systemic false record keeping.
So there are two aspects to it. I guess the first question to Senator Cameron would be, is he concerned in any way that the sorts of matters that I've raised in terms of adverse action could mean that the Fair Work Ombudsman is constrained? By the same token, in terms of what the minister's concerns have been, will the minister be of the view, should this amendment pass, to have a review of issues of the operation of this act generally and, in particular, in respect to coercive powers? So I guess the first line of questions to Senator Cameron is: I've discussed this issue with you in good faith; I am relatively comfortable about these sorts of matters that have been included; the government has raised some points which I don't see as being a Trojan Horse; but in terms of issues of adverse action, false records, misrepresentation of workplace rights and industrial activities, why do you think that those sorts of matters should not be included? Can we have that on the record?
Senator CAMERON (New South Wales) (11:54): They are included. That's our position. The amendments go to the issue. They can cover the issue of threats, underpayment and record keeping. They go to the national employment standards and to any coercion by an employer. They go to bullying, to unfair dismissal and to unreasonable requirements to spend or pay amounts paid or payable to employees.
Quite frankly, Senator Xenophon, I don't have the same faith in the government that some would have in this place, given their record on using government agencies to attack the capacity of workers to have effective trade unions. It is a legitimate concern that we have. It's there. We've seen Work Choices, we've seen the ABCC, and we've seen the Prime Minister, the former Prime Minister and the former Minister for Employment injecting their views on how the legislation should be applied—so it's on the record about how this government works. We are confident on the advice that we have that this covers the issues that you've raised, and, to be doubly sure, we would agree to a review process to see whether the issues that the minister is raising do raise their heads. We doubt whether they would. We are pretty confident they won't arise. We believe we've got it covered here with these amendments.
The discussions that your office and my office, and you and I, have had in good faith on these issues are clear. We've put our position. We know our position is correct on this: that these are red herrings that are being raised. But, even so, if you need further comfort, we will give you that comfort by going back to a review on these issues. With the discussions that we've had—the discussions that you've had with my office, the discussions that you've had with Mr O'Connor's office and the discussions that you've had with the minister—we believe that these issues are covered. The bottom line is: the fundamental proposition of this bill is to protect vulnerable workers, and that's what we focus on. We believe that's covered in the amendments that we've worked on together.
Senator XENOPHON (South Australia) (11:57): I thank Senator Cameron for his comprehensive response. Could he elaborate on that advice? The fact that he's supportive of a review process is obviously very welcome, but that's up to the minister as well because I think the minister has these ongoing concerns. On the understanding that the opposition does want this legislation to go further, is it the case—taking the principle that the perfect shouldn't be the enemy of the good—that, with this amendment, the opposition will support this legislation on the basis that, even though it believes it should go further, this is at least broadly quite beneficial for workers? And in the absence of these coercive powers that they were concerned about as being a Trojan Horse—which I note that the government vehemently says is not the case—is this the main stumbling block from the opposition's point of view: that if this amendment goes through the opposition will support this legislation with the caveat that it believes it should go further?
Senator CAMERON (New South Wales) (11:58): There are a range of amendments that we have before the Senate. I can't give you any commitment that we will support every aspect of the government's bill. The commitment we have given you is that we will sit down with you—and you gave the same commitment to us—and look at these issues. There are other amendments that we have before us. We can't give a commitment to the overall bill until we see the outcome of the discussion and debate in this committee process. But we certainly will support the propositions that are in our amendments that have been the subject of discussions between your office, my office and the shadow minister's office. I think it's a bit unfair, to be frank, to ask us to give you a commitment to the whole bill until we see what happens with the other amendments.
Senator XENOPHON (South Australia) (11:59): I just want to make the point that, objectively, this bill will help vulnerable workers. It will go a significant step forward in protecting vulnerable workers to prevent the kind of scandal that we saw with 7-Eleven, and the minister does genuinely need to be commended for putting together a package of legislation that is unambiguously a good thing for vulnerable workers. I understand the opposition's concerns in terms of the coercive powers. It's something that the ACTU and other unions have been quite concerned about. I think that what the opposition is proposing is reasonable. It does include the issue of workers being coerced by their employers and it has that protection so that it covers that field, which is something that the minister was concerned about.
Taking a cautious approach, it is my view that not only this amendment should be supported but also there should be a review. What the minister has been concerned about and what the minister has been warned of ought to be something that is ventilated through a proper inquiry process. I would be grateful if I could hear from the minister, given what an the opposition has said about this, about a proper review of this, particularly in the context of these coercive powers that the government has sought and that the opposition seeks to constrain so that there is no question of it having the adverse impact on employees.
I think we should get on with it on the basis that the opposition's amendment is supported. But to say that this bill somehow won't be beneficial overall to vulnerable workers, I think, would be quite wrong. It would be quite churlish to say that because I think a lot of good work has gone into this bill in terms of assisting vulnerable workers so we don't see a repeat of the 7-Eleven scandal. So, if I can get some clarification from the minister about her concerns, my inclination is to support this amendment. I know there are other amendments that are contentious that we need to deal with, but I want to get some clarification from the minister about a general review and any other concerns she has about this amendment.
Senator HINCH (Victoria) (12:02): I'd just like to say that I will be supporting the government on the amendments. It is called the protecting vulnerable workers bill. But I also will be supporting some of the Labor amendments with the backing of Senator Xenophon. As I understand it, what the government wants to do with this is give the Fair Work Ombudsman new powers to broaden its investigative powers to include new evidence-gathering powers, including compulsory questioning powers, and to provide coercive powers to the FWO to, as they put it, achieve positive investigation outcomes which, of course, would force workers to speak, and they could be fined if they don't. As I understand it, Senator Cameron, your side want to add a layer of oversight to this through the AAT, which isn't always a wonderful institution. It would involve the FWO requesting permission from the AAT to use coercive powers. I hope you'll correct me if I'm wrong, but the FWO would then have to give reasons to the AAT about why they want to use these coercive powers, why they want to question somebody and what they want to question them about. If the AAT did grant the powers, then the FWO could use them. Following the use of those powers, the Commonwealth Ombudsman would then review the FWO and the use of their powers to make sure it had been done properly.
Also, as I understand it, some of these amendments want to limit the scope of these investigative powers to some of the following: the underpayment of wages or other monetary entitlements of employees, the unreasonable deduction of amounts owed to employees, the placing of unreasonable requirements on employees to spend or pay amounts paid or payable to employees, the unfair dismissal of an employee, the bullying of a worker at work, the unlawful discrimination of a person in relation to employment, a contravention of a provision of the National Employment Standards or the coercion of an employee by an employer. So I just want to say that I do support the government amendments to this. I also support some of the ones, especially this one, being put forward by Senator Cameron in association with Senator Xenophon, and I hope we get on with it and get it done quickly.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (12:04): Just for the Hansard record, I have listened carefully to the questions that Senator Xenophon has asked and I understand he will be supporting the amendment moved by Labor. But I also listened very carefully to the response that Senator Cameron gave. I just want to be very clear for the Hansard record: in the event that the government's prediction does come true—and the fact is that the Labor opposition now has the support of Senator Xenophon—I anticipate that well-resourced parties, including those engaging in exploitative practices that the bill intends to address, will no doubt occupy the time and the resources of the Fair Work Ombudsman in protracted and expensive legal arguments about whether or not the Fair Work Ombudsman has the jurisdictional basis to issue a notice, how any power is exercised in an interview or requirement to give information et cetera, and whether or not something falls in or out of the powers in their now limited form again. Although, I do acknowledge that the opposition have amended their previous amendment and have added in the coercion of an employee by an employer. That has addressed one of the government's concerns.
In Senator Cameron's answer to Senator Xenophon's question, he stated, 'The opposition had advice to the effect that the concerns raised by the government'—and I just want to set those concerns out again for the purposes of the Hansard record—'in relation to recordkeeping failings, false records, adverse action, the limiting of coercion, undue influence or pressure, misrepresentation of workplace rights, sham contracting, non-monetary breaches of industrial awards or agreements and not complying with Fair Work Commission orders to, for example, pay unfair dismissal compensation.' Senator Cameron indicated that the advice they had was that these would not be excluded from the amendment.
It would be good obviously if Senator Cameron could table that advice because that would certainly assist us all. It would give Senator Xenophon some comfort. It would certainly give the government comfort that the issues that we have raised well and truly fall squarely within the amendment. That would also then assist the courts or the commission in the event that these matters are litigated and they're looking to extrinsic material. Certainly extrinsic material includes Hansard records during committee debates, second reading debates et cetera and explanatory memoranda. It would certainly assist the commission or a court—whoever ultimately is looking at this—to be able to refer to such advice and say, 'Record-keeping failings are actually within the definition and, therefore, you are in breach.' I would invite Senator Cameron to table that advice but, in the event that that does not occur, just to note for the record what has been put on Hansard—that the advice does go to the effect that the concerns raised by the government are adequately reflected within the amendment that has been drafted.
The CHAIR: The question is that amendments (28) to (30), (32) to (34) and (39) on sheet 8144 and amendment (1) on sheet 8218 as moved by Senator Cameron be agreed to.
The committee divided. [12:12]
(The Chair—Senator Lines)
Senator CAMERON (New South Wales) (12:15): by leave—I move opposition amendments (40) and (41) on sheet 8144 together:
(40) Schedule 1, item 57, page 32 (after line 13), at the end of Part 4, add:
24A Application of amendments—presumption where records not provided
Section 557C of the amended Act applies in relation to contraventions of civil remedy provisions that occur after the commencement of this Part.
(41) Schedule 1, page 32 (after line 13), at the end of the Schedule, add:
Part 8—Records
Fair Work Act 2009
1 At the end of subsection 535(3)
Add:
Note: If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.
2 Subsection 536(2) (note)
Omit "Note", substitute "Note 1".
3 At the end of subsection 536(2)
Add:
Note 2: If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.
4 Before section 558
Insert:
557C Presumption where records not provided
(1) If:
(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and
(b) the employer was required:
(i) by subsection 535(1) or (2) to make and keep a record; or
(ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or
(iii) by subsection 536(1) or (2) to give a pay slip;
in relation to the matter; and
(c) the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
(2) Subsection (1) does not apply if the failure to comply was due to exceptional circumstances beyond the employer's control.
(3) The civil remedy provisions are the following:
(a) subsection 44(1) (which deals with contraventions of the National Employment Standards);
(b) section 45 (which deals with contraventions of modern awards);
(c) section 50 (which deals with contraventions of enterprise agreements);
(d) section 280 (which deals with contraventions of workplace determinations);
(e) section 293 (which deals with contraventions of national minimum wage orders);
(f) section 305 (which deals with contraventions of equal remuneration orders);
(g) subsection 323(1) (which deals with methods and frequency of payment);
(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);
(i) subsection 325(1) (which deals with unreasonable requirements to spend or pay amounts);
(j) any other civil remedy provisions prescribed by the regulations.
Senator CAMERON: by leave—I move an amendment to amendment (41) on sheet 8144:
That amendment 41 on shee t 8144 be amended by omitting " the failure to comply was due to exceptional circumstances beyond the employer's control " from proposed clause 557C(2) on page 12 and substituting " the employer provides a reasonable excuse as to why there has not been complian ce with subsection 557C(1)(b)" .
The CHAIR: Senator Cameron, could we have a copy of that, rather than asking you to repeat it. And it needs to be signed before you hand it to us. Thank you. Please continue.
Senator CAMERON: I appreciate the opportunity to amend that original amendment. This goes to the issue that has had some debate in this place prior to this bill, and that is the importance of ensuring that there are pay slips provided to an employee by the employer. We have had speeches from Senator Cash about how important this is. We have had speeches about workers not being given their appropriate pay slips. What we are concerned about is that employers can hide behind a proposition that no pay slips have been provided, but then the onus comes on the exploited worker to prove that they have not had an appropriate payment.
We don't believe that where an employer has failed to deliver on what is an obligation under the existing act to provide a pay slip there should be any impediments put before an employee to actually prove that they haven't been paid. It really is a problem created by the employer in not providing a pay slip, which is their legal obligation to provide, and then hiding behind that and indicating to a worker that the worker needs to provide the proof. We understand that you don't reverse the onus of proof easily, but when an employer is breaching the act as it stands then there is, in my view, an obligation on parliament to make sure that that employee doesn't have unnecessary hurdles to jump before they can undertake a case to get what is their legitimate right. If an employer is not complying by providing a pay slip then there should be a reverse onus of proof.
In our original amendment, we had the proposition:
Subsection (1) does not apply if the failure to comply was due to exceptional circumstances beyond the employer's control.
But, following discussions with Senator Xenophon, we are prepared to take out 'exceptional' and substitute 'the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b)'. It still would be up to the employer to indicate what circumstances were beyond the employer's control.
We are of the view that, provided the employer has a reasonable excuse as to why there has not been compliance, that's a case they can argue—they can argue what that reasonable excuse is. Obviously, the Fair Work Commission can deal with that by hearing the arguments and making a determination. But in my view a reasonable excuse would still have to be a good excuse. You just can't have an employer saying, 'Well, you know, the dog ate my homework.' You just cannot do that. There has to be a clear and unequivocal but reasonable excuse as to why they haven't complied with their legal obligations.
Remember, what we are talking about here are workers who are in a vulnerable situation. That was the name that Senator Cash came up with for the bill. The bill is the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017. It is not a bill to protect incompetent employers. It is not a bill to protect employers trying to rip workers off. It is not a bill to protect the rights of companies like 7-Eleven and Caltex, who egregiously turned a blind eye to the rip-offs that were taking place. This is about protecting vulnerable workers, so there has to be a reasonable excuse as to why there has not been compliance. That excuse, obviously, would have to meet the judgement either of a court or of the Fair Work Commission.
So it just cannot be a proposition that an employer does not comply with the law. There have been any number of speeches in here about the need to provide a pay slip to a worker. The pay slip is absolutely essential for a worker to know they have been paid for the hours they have worked, that penalty rates are being paid, and that superannuation is being paid. We have seen some recent analysis that billions of dollars of superannuation has not been paid to workers in this country. In the last session, I think, Senator Cash did bring further changes to pay slips and the requirement to provide pay slips. This is consistent with that approach. You must have a pay slip; you just can't argue that for some obscure reason no pay slip was provided. A pay slip cannot be just a scribbled note saying, 'I've paid you $300', or $400. A pay slip has to actually deal with all the obligations the employer has in relation to that worker.
So, we are very clear that this is another protection for vulnerable workers, by having a reverse onus of proof. In actually bringing a case against a powerful employer—an employer who has all the facts, an employer who may have been exploiting the worker—the worker may have some difficulties if they don't have a pay slip. So, the employer has an obligation under law to provide the pay slip, and you can't have noncompliance with legal obligations making it harder for a vulnerable worker, a worker in an exposed position, to actually make a claim for their rights under the law and their rights to get paid for what they've worked. A 'reasonable excuse' has to be reasonable, and the employee cannot be put in a position with the employer because of an omission, either deliberate or non-deliberate, by the employer, where they cannot get a fair day's pay for a fair day's work.
So we believe this is an important proposition. We think it's consistent with the thinking that this parliament has had in the past about the need to supply a pay slip. Employees are entitled to know that they're being paid for the work they've done. Employers have responsibilities to provide pay slips to employees. On that basis, the amendment we are proposing is important, but we are prepared to accept that if a reasonable excuse is what can be put forward then it has to be determined whether that excuse is reasonable or not. I will leave it at that.
Senator XENOPHON (South Australia) (12:27): On the amendment, I just want to break this presumption down, because I think there's been a lot of hyperbole about this—not on the government's part, but I think there's been some concern as to how it would work.
Senator Cameron: Must be me then!
Senator XENOPHON: No, not from Senator Cameron, but I know from speaking to some small businesses about this that you need to explain to them that the reverse onus would apply only if they have broken the law about the keeping of records in terms of pay, in terms of basic employment records—that is something where I don't know any employer who would not keep records, who would not want to do the right thing. Any responsible employer would keep these records. So in order for the reverse onus to be triggered, it would have to be a situation in which there would be a breach of subsections 535(1), 535(2), 535(3), 536(1) or 536(2) in relation to triggering this particular amendment of Senator Cameron's.
This amendment needs to be seen in the context of what the government has done to significantly increase the penalties for failing to keep records. The opposition says, 'The government isn't fair dinkum about trying to do the right thing by vulnerable workers.' Well, I think the fact that the government is doubling, as I understand it, the penalties for employers who don't keep their pay records, who don't have a proper system of record keeping under the act, shows goodwill on the part of the government to have an environment in place where there is much greater protection for vulnerable workers.
The concern I had about the reverse onus of proof—by the way, just because there is a reverse onus of proof doesn't mean that you cannot disprove that—in the original form of this amendment was that subsection (1) did not apply for failure to comply due to exceptional circumstances beyond the employer's control. I think that is simply too high a hurdle. It is simply too unreasonable. What's been put to me by one person who's run small businesses is there might be circumstances where an employee works a few extra hours and doesn't put in their timesheet as required, and then there's a blue between the employer and the employee. Even though the employer has had a good system of record keeping, it's something beyond that employer's control. Changing it to ensure that there is a safeguard, a safety valve, that it doesn't apply if the employer provides a reasonable excuse—and, again, as Senator Cameron says, it can't be 'The dog ate my homework'—so the concept of reasonableness is brought into it as to why there has not been compliance with subsection 557C(1)(b), I think provides the comfort that fair employers need so they're not caught up in this unnecessarily, but it still does its work to ensure that there ought to be compliance and there ought to be a protection for vulnerable workers in these circumstances.
In other words, if an employer is keeping records, has a system of keeping pay records—as they're required to, because the government knows how important this is, with significantly increased penalties for failing to keep records—then the employer would not be subject to this reverse onus of proof. But if you have an employer where there is no record keeping, there's no system of records as to who's working when, then the reverse onus of proof would apply, but there would still be the safeguard that if there's a reasonable excuse then it would not apply. I think this strikes that delicate balance and enhances the legislation. I support this amendment. I think it is quite reasonable in the circumstances, with this additional safeguard of reasonable excuse, for this amendment to pass.
Senator CAMERON (New South Wales) (12:32): I would indicate our good faith in this. We have listened to the concerns of small business, we've listened to the concerns that Senator Xenophon has raised with us, we looked at the wording of the amendment, and the amendment we just moved shows that we are open to sensible concerns. We want to make sure employers who are doing the right thing are not caught, but if an employee is being ripped off then they need to have a fair go. That's the bottom line: if an employee is being ripped off, they have to have a fair go. Senator Xenophon, your assessment of the government when it comes to dealing with workers' rights in this country may be a bit different from my experience over many years of coalition governments. It's quite reasonable for the Labor opposition to have concerns about the behaviour of this government when it comes to industrial relations. It's quite reasonable for us to have concerns about the history of this government in relation to Work Choices and the ABCC. At every opportunity that Senator Cash has to try to denigrate the great Australian trade union movement in this country, she does it. Without the trade union movement in this country, workers would have no penalty rates, workers would have no rights, there would be no annual leave loading. In my view, if this mob could get their own way, there would be a return to serfdom in this country.
Senator Xenophon interjecting—
Senator CAMERON: And you may just say, 'Yeah, yeah'—well, what was Work Choices, Senator Xenophon, if it wasn't forcing ordinary workers in this country into a position where they could not negotiate effectively? That's the bottom line.
Senator Xenophon: 'Serfdom' is a very harsh term.
Senator CAMERON: 'Serfdom' might be a harsh term, but what's more harsh than taking the penalty rates away from workers, where they can't pay their bills, where they can't put food on the table and where they can't put shoes on their kids' feet? That's pretty harsh as well. Forcing a worker into an unfair bargaining situation is also pretty harsh. So we've seen it all from those opposite. And they say they're acting in good faith. Well, it's taken them four years to deal with this. They've had plenty of time to deal with it. We've had 7-Eleven, we've had Caltex, we've had migrant workers being ripped off and we've seen the rise of criminal gangs in regional and rural Australia taking payments off migrant workers on temporary visas. We have had many examples of workers being put in a terrible situation with this. So, yes, we've listened to the concerns of small business, we've listened to your concerns and we've made the amendments. I just have a more critical analysis, I would hope, of the coalition's good faith on issues than maybe others in this place do.
Senator XENOPHON (South Australia) (12:36): I thank Senator Cameron for his response, but I wish to make a very quick point. Unambiguously, this bill, if enacted, will help vulnerable workers around the country, and it would be churlish not to congratulate the government for actually taking some solid, meaningful, substantive steps to protect vulnerable workers. That's the point I wanted to make.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (12:37): This amendment was moved the last time we met, and I put on record at that time the government's concerns in relation to this amendment. Basically, as I said in relation to the reverse onus, there were significant issues that the government had with it in relation to, in particular, the situation whereby an employee made a false allegation against an employer. What this amendment would have effectively done is created the impossible situation where an employer would be responsible for an inaccurate claim made by an employee. The example I gave on the Hansard record last time the amendment was debated was in the case of a claim to working certain hours or days that were not actually worked, and an employer will obviously have no records at all and no ability to disprove the allegation. I am pleased, though, that the opposition has come to the Senate today with an amended version of their amendment. The government still will not be supporting it, because of the issues that we still have with it. In relation to the taking out of 'exceptional circumstances' and the insertion of 'provides a reasonable excuse as to why there has not been compliance', this certainly does go part of the way to addressing the concerns that the government has had.
Senator MARSHALL (Victoria) (12:39): I just want to talk about this particular amendment, because I think this debate tries to get a little bit too academic sometimes. If we step back and look at employers who are paying people, first of all, you should know what it is you're going to pay them. You make a decision that you're going to pay at least the minimum legal rate and conditions or you make a decision that you're not. Either way, employers know what they're going to pay their employees, because ultimately they pay them at the end of the day. Every employer knows exactly how long their employees have worked. Again, whether they want to pay them for all of those hours or not is a conscious decision of that employer. Employers that are paying according to their legal minimum requirements or better will have that documented. They know what it is they have to pay; it will be on a pay slip. The employer will know how many hours the employee has worked, as will the employee, and that will be outlined on a pay slip. It will be there for all to see. It is not too much to ask, or expect, that an employer who is paying somebody, knowing what it is they're paying, puts that on a pay slip.
The evidence I've seen around the traps—some of it's hard and physical evidence, some of it's anecdotal evidence and some of it's evidence provided by the Fair Work Commission—is that those employers who have chosen not to pay the legal minimum or above requirements still have records but refuse to make them available. They pretend those records are not there. They pretend they do not exist. We've heard evidence from the Fair Work Commission where they've gone, as a result of a complaint to an employer, that said, 'This employee says they have not received their proper wages and conditions for the hours that they've worked,' and the employer says, 'I don't know who they are. I have no records of them ever working here.' They choose not to provide those records. We know those records are there. If they are there and the employee is being paid correctly, there's no problem; there is no dispute between anybody. But we know it is a business model of some employers simply to pay cash in hand and not pay for all the hours worked—they talk about clean-up time and preparation time and that they shouldn't get paid for that. There are all sorts of different exploitation models that go on, and often these models are part of a structured business plan.
We have heard evidence of some employers who have made the decision that they will underpay people, and they've made the conscious decision that maybe one in 10 of those people will ultimately complain about being underpaid. You then make it difficult for employees to pursue the complaint, and maybe one in five of the one in 10 who actually complained in the first place are able to mount some sort of a case. And then most of those people will take a cash offer less than what they were underpaid to simply go away because 'something's better than nothing' and it's nearly impossible to prove, under the current law, that they are being underpaid when an employer either chooses not to make the records available or pretends there are no records. What's nearly the worst thing that happens to those employers? They have to pay what they were legally supposed to pay for only a fraction of the people they've underpaid. And when they do that they continue on with their business model, very happily stealing wages from those people time and time again.
We know—because they told us—that the Fair Work Ombudsman is frustrated with their inability to go behind some of these business models. It is difficult for them, when an employer chooses not to provide times and wage records, either of legal times and wages or not, to make any case or even to prove that an employee was ever an employee at all. It's difficult to prove that, especially when people are vulnerable and in difficult situations.
I'm not as sympathetic as others because I know that no employer just goes round saying, 'Oh, Jo'—Fred or whatever their name is—'here's $100 bucks for your week's work,' without having any idea of what the hourly rate was or how many hours they worked. It's farcical to think that!
Every employer knows exactly how much they're paying their employees as an hourly rate and how much time they've worked. Whether they choose to pay legal wages and conditions is a completely different matter. I understand that, if someone keeps proper records and is paying correctly, they won't be under investigation in the first place. That's the reality. If you're actually paying by the award or better—the award being the lowest legal minimum wage someone can be paid—or the other entitlements, there's going to be no problem anyway. The problem is only when employers either choose to do the wrong thing by underpaying or choose not to keep official records. And the only reason you would ever do the latter is that you were underpaying; otherwise, as I've already said, of course you would keep your own records. You don't just make up a weekly rate or a daily rate for somebody. You don't pick those things out of the air. There is a formula that you may be using, but of course it simply may be less than the legal entitlement. If there was a fire in the business and all the records were destroyed, fair enough! I think that would be a reasonable excuse. But I really can't think of any other reasonable excuse.
We're happy to pick up the words and hear some of the concerns. I must say, from a personal point of view, as someone who takes an active interest in these matters, I think those concerns are completely overblown. But in order to progress these issues I support the position that we support these amendments and what's been discussed and negotiated with Senator Xenophon, even though the government's not pursuing it, because I think it is important to move forward. If an employee or alleged employee can establish that they did work for a business or an employer, and the employer either has deliberately not kept the records or doesn't want to show the records because they will prove that they were underpaying, it ought to be a reverse onus of proof because the employee is in such a vulnerable position. How do they establish those facts? They can't establish those facts. They're being ripped off in the first place. As if the employer is going to make it easy for them to come and prove that they were going to be ripped off! I know some people say cases where this business model's in place are rare. Well, I'm telling you: they're not rare. They're across industry, and in hospitality in particular.
One of the interesting things that I heard in the debate about penalty rates is that people were saying to me for the first time, 'We didn't know we were entitled to penalty rates.' The fact that we had this discourse about penalty rates raised the issue that they were, in fact, entitled to penalty rates. I had so many employees saying to me, 'I've never been paid penalty rates and didn't know we were entitled to them.'
I think we have to bite the bullet and say that in many respects—in fact, in nearly all respects now—the Fair Work Act is not delivering what it ought to be delivering. The mere fact that we need this protecting vulnerable workers bill actually says that the Fair Work Act in itself isn't working. It's certainly not working for the vulnerable workers. Let's be clear, this bill concerns a very narrow field of vulnerable workers, those dealing with franchisees and franchisors. That is a very narrow protection of vulnerable workers, but they themselves are vulnerable, and I certainly welcome many aspects of this bill. But let's be very, very clear: it is the employees that need protection from unscrupulous and disreputable employers, not the other way around.
So I certainly commend the amendment as it is, but I don't think any of us ought to get too academic in the arguments here. Let's take it back to what we know makes sense on the ground, how what we know actually happens in reality. Let's put a bit of reality into it. But I am certainly happy to support the proposals as they're put.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (12:49): Can I just confirm that when we say 'the proposals as they're put' that's in relation to the amendment that Senator Cameron has placed before us. So perhaps he could just read out the amended amendment.
Senator CAMERON (New South Wales) (12:50): I thought I had placed that on record, but I'll do it.
Senator Cash: Just for clarification, that's all.
Senator CAMERON: I sought leave to move an amendment to amendment (41) on sheet 8144. I moved the amendment:
That amendment (41) on sheet 8144 be amended by omitting 'the failure to comply was due to exceptional circumstances beyond the employer's control' from proposed clause 557C(2) on page 12 and substituting 'the employer provides a reasonable excuse as to why there has been no compliance with subsection 557C(1)(b)'.
That was the amendment that was moved, and I think we've had a fair bit of discussion on that. Again, I want to say that we've listened to the concerns of small business and Senator Xenophon on this. We have changed the wording of the amendment. We are open to sensible and reasonable concerns, and we want to make sure that employers who are doing the right thing aren't caught up in this.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (12:52): Just for the record, the government acknowledge that the amendments do have the majority support of the Senate and, as such, we won't be calling a division.
The TEMPORARY CHAIR ( Senator O'Sullivan ): The question is that amendments (40) and (41), as amended by leave, on sheet 8144 moved by Senator Cameron be agreed to.
Question agreed to.
Senator CAMERON (New South Wales) (12:52): by leave—I move opposition amendments (1) to (20), (22), (23) and (36) to (38) together:
(1) Schedule 1, items 14 and 15, page 8 (lines 4 to 14), omit the items, substitute:
14 Section 12
Insert:
franchisee entity of a franchise: see subsection 558A(1).
14A Section 12 (definition of indirectly responsible entity )
Repeal the definition, substitute:
indirectly responsible entity:
(a) in relation to TCF work performed by a TCF outworker—see subsections 789CA(3), (4) and (5); and
(b) in Division 4A of Part 4‑1—see subsection 558A(3).
14B Section 12
Insert:
responsible franchisor entity for a franchisee entity: see subsection 558A(2).
supply framework: see subsection 558A(3).
14C Section 12 (before paragraph (a) of the definition of worker )
Insert:
(aa) in Division 4A of Part 4‑1—see subsection 558A(3); and
15 Section 537 (after the paragraph relating to Division 4)
Insert:
Division 4A imposes obligations on responsible franchisor entities, holding companies and indirectly responsible entities in relation to certain contraventions of civil remedy provisions by other entities.
(2) Schedule 1, item 16, page 8 (table item 29A), after "558B(2)", insert "558B(2B)".
(3) Schedule 1, item 17, page 9 (lines 1 to 3), omit the heading to Division 4A, substitute:
Division 4A—Responsibility of responsible franchisor entities, holding companies and indirectly responsible entities for certain contraventions
(4) Schedule 1, item 17, page 9 (line 4), omit the heading to section 558A, substitute:
558A Meaning of franchisee entity,responsible franchisor entityandindirectly responsible entity
(5) Schedule 1, item 17, page 9 (line 15), omit "significant".
(6) Schedule 1, item 17, page 9 (after line 16), at the end of section 558A, add:
(3) A person is an indirectly responsible entity for another person (the worker) if:
(a) there is an arrangement, or a chain or series of 2 or more arrangements, for the production or supply of goods or services by the worker (the supplyframework); and
(b) the person is party to an arrangement in the supply framework; and
(c) any of the following applies:
(i) the person has influence or control over the worker's affairs or the affairs of the worker's employer;
(ii) under the supply framework, the worker performs work for the purpose of the business of his or her employer and goods or services are provided to the person;
(iii) the worker otherwise forms part of the conduct of the undertaking of the person; and
(d) the person is not:
(i) the worker's employer; or
(ii) a responsible franchisor entity for the worker's employer; and
(e) if the person is a body corporate—the worker's employer is not a subsidiary (within the meaning of the Corporations Act 2001) of the person.
(7) Schedule 1, item 17, page 9 (lines 17 and 18), omit the heading to section 558B, substitute:
558B Responsibility of responsible franchisor entities, holding companies and indirectly responsible entities for certain contraventions
(8) Schedule 1, item 17, page 9 (line 27), omit "entity; and", substitute "entity.".
(9) Schedule 1, item 17, page 9 (line 28) to page 10 (line 7), omit paragraph 558B(1)(d).
(10) Schedule 1, item 17, page 10 (after line 8), after subsection 558B(1), insert:
(1A) Subsection (1) does not apply if the responsible franchisor entity proves that it and its officers (within the meaning of the Corporations Act 2001):
(a) did not know and could not reasonably be expected to have known that the contravention by the franchisee entity would occur; and
(b) did not know and could not reasonably be expected to have known, at the time of the contravention by the franchisee entity, that a contravention by the franchisee entity of the same or a similar character was likely to occur.
(11) Schedule 1, item 17, page 10 (line 14), omit "subsection (7); and", substitute "subsection (7).".
(12) Schedule 1, item 17, page 10 (lines 15 to 25), omit paragraph 558B(2)(c).
(13) Schedule 1, item 17, page 10 (after line 26), after subsection 558B(2), insert:
(2A) Subsection (2) does not apply if the body corporate proves that it and its officers (within the meaning of the Corporations Act 2001):
(a) did not know and could not reasonably be expected to have known that the contravention by the subsidiary would occur; and
(b) did not know and could not reasonably be expected to have known, at the time of the contravention by the subsidiary, that a contravention by the subsidiary of the same or a similar character was likely to occur.
Indirectly responsible entities
(2B) A person contravenes this subsection if:
(a) the person is an indirectly responsible entity for a worker; and
(b) the worker's employer contravenes a civil remedy provision referred to in subsection (7) in relation to the worker; and
(c) the contravention by the worker's employer is connected to the worker's work under the supply framework.
Note: This subsection is a civil remedy provision (see this Part).
(2C) Subsection (2B) does not apply if the indirectly responsible entity proves that it and its officers (within the meaning of the Corporations Act 2001):
(a) did not know and could not reasonably be expected to have known that the contravention by the worker's employer would occur; and
(b) did not know and could not reasonably be expected to have known, at the time of the contravention by the worker's employer, that a contravention by the worker's employer of the same or a similar character was likely to occur.
(14) Schedule 1, item 17, page 10 (lines 27 to 32), omit subsection 558B(3), substitute:
Reasonable steps to prevent a contravention of the same or a similar character
(3) A person does not contravene subsection (1), (2) or (2B) if the person proves that, as at the time of the contravention referred to in paragraph (1)(a), (2)(b) or (2B)(b), the person had taken reasonable steps to prevent a contravention by the franchisee entity, the subsidiary or the worker's employer of the same or a similar character.
(15) Schedule 1, item 17, page 10 (line 35), omit "franchisee entity or subsidiary", substitute "franchisee entity, a subsidiary or an employer of a worker".
(16) Schedule 1, item 17, page 11 (lines 3 and 4), omit paragraph 558B(4) (a), substitute:
(a) the size and resources of the franchise, body corporate or parties to arrangements in the supply framework (as the case may be);
(17) Schedule 1, item 17, page 11 (line 7), omit "or (2)(b)", substitute ", (2)(b) or (2B)(b)".
(18) Schedule 1, item 17, page 11 (line 22), at the end of subparagraph 558B(4)(e)(ii), add "or".
(19) Schedule 1, item 17, page 11 (after line 22), after subparagraph 558B(4)(e)(ii), insert:
(iii) the supply framework;
(20) Schedule 1, item 17, page 11 (lines 29 to 35), omit subsection 558B(6), substitute:
Civil proceedings in relation to contravention by franchisee entity, subsidiary or worker ' s employer not required
(6) To avoid doubt, a reference in paragraph (1)(a), (2)(b) or (2B)(b) to a contravention by a franchisee entity, a subsidiary or an employer of a worker includes any contravention whether or not an order has been sought or made against the franchisee entity, subsidiary or employer under Division 2 for the contravention.
(22) Schedule 1, item 17, page 12 (lines 33 and 34), omit the heading to section 558C, substitute:
558C Right of responsible franchisor entity, holding company or indirectly responsible entity to recover
(23) Schedule 1, item 17, page 13 (lines 3 and 4), omit "of subsection 558B(1) or (2) in relation to a franchisee entity or subsidiary", substitute "of subsection 558B(1), (2) or (2B) in relation to a franchisee entity, a subsidiary or an employer of a worker".
(36) Schedule 1, item 57, page 31 (lines 14 and 15), omit the heading to clause 19 of Schedule 1, substitute:
19 Application of amendments—responsibility of responsible franchisor entities, holding companies and indirectly responsible entities
(37) Schedule 1, item 57, page 31 (lines 17 and 18), omit "or subsidiaries", substitute ", subsidiaries or employers of workers".
(38) Schedule 1, item 57, page 31 (lines 20 to 25), omit subclause 19(2) of Schedule 1, substitute:
(2) To avoid doubt, in determining for the purposes of subsections 558B(1A), (2A) or (2C) of the amended Act whether a person could not reasonably be expected to have had knowledge as referred to in that subsection, a court may have regard to conduct that occurred, or circumstances existing, before the end of the period referred to in subclause (1).
These amendments do three things. Firstly, they limit the definition of 'responsible franchisor' so that a franchisor has to have 'a degree of influence or control, not a significant degree'. Secondly, they extend the new civil liability provisions where labour hire companies are used and across the supply chain. They reverse the onus of proof to make it harder for franchisors and big companies to escape liability. So if what we are about in this bill is protecting vulnerable workers then these three areas are important. It's about a degree of influence or control, not a significant degree. It's about extending the new civil liability provisions where labour hire companies are used across the supply chain and reversing the onus of proof to make it harder for franchisors and big companies to escape liability. Labor are pleased the government has adopted our policy of accessorial liability, which will be applied to franchisors so that they can't escape responsibility for the exploitation of workers by their franchisees.
The recent example of wage fraud and worker exploitation is not, however, limited to franchising. Sadly, Australians have seen that exploitation extends to the practices of labour hire arrangements, and along supply chains. Big companies can't be allowed to avoid their responsibilities for the way in which their business practices allow, and in many circumstances require, worker exploitation to occur. As the Franchise Council of Australia argued to the legislation committee inquiry:
No evidence provided makes the case for singling out franchising when Fair Work compliance concerns are an economy-wide issue.
So even the Franchise Council, which has moved heaven and earth to try to stop this, has conceded the point that worker exploitation is an economy-wide issue. One of the great areas of exploitation is through labour hire arrangements. I think anyone who has seen the Four Corners reports about the labour hire exploitation that takes place against vulnerable visa workers in rural and regional Australia would certainly understand that this is a huge issue. If the Franchise Council can see that, then surely it's incumbent upon this chamber to recognise that this is an economy-wide issue and not simply an issue in franchising.
The Franchise Council also submitted:
Any new legislation should reflect the economy-wide nature of the employee underpayment concern. An economy-wide approach may be assisted by contemplating if the definition of 'parent' company was extended beyond parent and subsidiary to a situation where one party exercised reasonable allocation of responsibilities and significant control over another party, such as in a closely controlled supply chain or a franchise, licence or product distribution arrangement.
Similarly, the Asia-Pacific Centre for Franchising Excellence stated:
Franchising should not be singled out. The proposed amendments appear to have evolved as a reaction to recent media involving the underpayment of employees by franchisees in some high-profile franchise brands. However, it is disingenuous and patently unfair to target franchise organisations …
So not only is the Franchise Council of Australia concerned, but the Asia-Pacific Centre for Franchising Excellence—I don't know if that is an oxymoron—is raising this issue as well. They are saying it is disingenuous and patently unfair to simply target franchise organisations.
Labor's amendments mean that franchisors will not be singled out, and, because it is an economy-wide approach to prevent wage exploitation, we should deal with it on an economy-wide basis. Labor's amendments are aimed fairly and squarely at making the big economic decision-makers accountable for the contracts they enter into. These amendments address the gap in the government's response to worker exploitation by extending liability to 'indirectly responsible entities', so that where companies and businesses outsource their workforce to labour hire firms, or enter into contracts for the supply of goods and services to their businesses, they cannot escape liability for their role in the exploitation of workers by those labour hire or supply chain firms. It falls square on the principles we've just been debating: if you have control over an entity, then you must accept that you have some liability if that entity breaks the law. That's what's been happening. As a former union official, I can recount many examples of labour hire companies coming in and actually working under what was an enterprise agreement or a certified agreement at the time, and the employer turning a blind eye to that certified agreement and the contract labour company paying less. This is unacceptable. This is something that we should deal with, given the concerns of both the Asia-Pacific Centre for Franchising Excellence and the Franchise Council of Australia.
Extending potential civil liability across the supply chain is about stopping big business and companies from negotiating contracts which can only be fulfilled by underpayment of wages. It's about making the economic decision-makers take an active role and ensuring that the people who do the work to supply the goods and services are not exploited. Just because you bring someone in on a contract labour basis, it should not absolve you of your obligation to ensure that workers on your worksite, your factory, your warehouse or your farm are employed legitimately and appropriately in line with the laws of Australia. Yet we see so much of this: farmers employ a contract labour company and that contract labour company then goes on to rip workers off, and when it's exposed the farmer says, 'Oh, I didn't know anything about this. It wasn't my responsibility.' But the work is being done on behalf of that farmer. The work is being done in the warehouse that is owned by the owner. The work is being done in the factory that is owned by that factory owner—the same as the work that is done by a franchisor on behalf of a franchisee is work being done for that franchisee. These are issues of similar concern. These are issues that go to the same principles that we've just been debating. That's why we believe the responsibility should be extended to the employer or the labour hire company to ensure that that labour hire company does the right thing, and there are so many examples at the moment where they don't. It's about stopping big business and companies from negotiating contracts which, as I have said, can only be fulfilled by the underpayment of wages. The economic decision-makers must be engaged.
Currently the bill only imposes civil liability on franchisors where they have a significant degree of influence or control over the franchisee entity's affairs. We believe that this definition is too narrow. It serves to incentivise franchisors to change their models in order to be able to argue that they do not have a significant degree of influence or control. By removing 'significant', these amendments remove that incentive. These amendments also strengthen the government's bill by requiring the franchisor, holding company or indirectly responsible entity to prove that they did not know, or could not reasonably have known, that the exploitation would occur, and that they took all reasonable steps to prevent it. Reversing the onus of proof in this way sends a very strong message that worker exploitation will not be tolerated. With these amendments, the bill would have real teeth to protect workers and would ensure that employers and big companies take responsibility for their obligations under the Fair Work Act and for the impact of the economic decisions that they make.
We've seen examples of companies processing chickens and contract labour coming in under the award wage. Those companies say, 'Well, we didn't know about it.' But these companies are actually working on the premises. These companies are supposed to be working under the law of Australia. These contract companies are, in our view, the responsibility of the employers that engage them on their premises. This is the same principle that we've just dealt with and is an important principle in the context of protecting vulnerable workers. If we are fair dinkum about protecting vulnerable workers then we will go to the issues that have been exposed in the newspapers, on Four Corners, on 7.30 and by people coming and talking to me about the exploitation that's taking place. Many senators in this place would have had workers come in and tell them about the exploitation they've experienced simply because they are employees of labour hire companies.
Now, some of those labour hire companies, such as the one shown on Four Corners, have been run by criminal gangs exploiting vulnerable workers who are here on temporary visas—putting them up in overcrowded housing, with some of them being forced to provide sexual favours to get a job and get an income. This should be unacceptable in modern-day Australia—it is unacceptable at any time in Australian history, but it certainly is unacceptable now. And if an employer has labour hire companies engaged in this type of misbehaviour or illegal activity, then those companies should not simply be allowed to say, 'We didn't see it; we didn't know about it; we've got no responsibility, because it's the responsibility of the labour hire company.'
If we really want to protect vulnerable workers then these amendments will be accepted. By accepting these amendments we will make our industrial relations system better for workers who are employed by labour hire companies. It would be consistent with the submissions from the franchising operations in Australia and consistent with other submissions that we've had. It will make sure that exploitation as a matter of course in this country stops and that the employer has an obligation—whether franchisors, franchisees or labour hire companies—to protect workers.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (13:08): I have to say, it's always very interesting to sit here and listen to Senator Cameron talk about his support for vulnerable workers You would actually think, based on everything Senator Cameron says, that he would then be able to articulate everything the former Rudd-Gillard-Rudd governments did in relation to protecting vulnerable workers. Let me just remind the Senate exactly what the former Labor governments did in relation to this issue. I'd say it's going to take me all day, but it won't. In fact, it's going to take me less than one second, because they did absolutely nothing. So, despite standing here and articulating your support, Senator Cameron, when you were in government and when you had the opportunity to actually change the law to do something to protect vulnerable workers, you did nothing.
But for those who are listening to this debate, it actually gets worse. Not only did the former Labor government actually do nothing by way of policy implementation to protect vulnerable workers but they actually did the exact opposite: they ripped the guts, quite literally, out of the Fair Work Ombudsman. They ripped the guts out of them by way of both the dollars and the number of staff given to the Fair Work Ombudsman. When the Hon. Bill Shorten, the current Leader of the Opposition, was the minister, he decreased substantially the number of staff working at the Fair Work Ombudsman. That's what they did to help to protect vulnerable workers—they decreased the number of staff working at the Fair Work Ombudsman. But it gets worse. Forget about decreasing the number of staff; when in government, those opposite ripped $26 million out of the Fair Work Ombudsman. When the Leader of the Opposition, Mr Bill Shorten, was the minister responsible, he ripped $26 million out of the Fair Work Ombudsman. They ripped the guts out of the Fair Work Ombudsman by taking money away from it and reducing its staff, but they also did absolutely nothing—not by way of one positive policy—to address the issue that they stand up today and say they are so committed to.
In relation to this particular amendment, this is absolutely where Labor's complete disregard for business comes into play. The government is opposing these amendments. Labor's amendment shows that they have no regard for or understanding of how business works. This amendment means that just about any person who is in any way involved in the supply of goods or services could be liable for the underpayment. That's right: any person. Imagine if 10 people were involved in the chain. You'd better hope that you're not number 4, 5 or 6, because you may well be liable. This just reinforces that those opposite are completely out of touch with how this bill works.
Let's turn this into a real-life example so people can understand what this amendment will do. You have a nice young couple. They don't even need to be young; they could just be a couple. They save up their money to renovate their home. They may well be responsible, because of this amendment, for the underpayment of a subcontractor by another subcontractor. Worse still, there is actually a presumption of guilt against this couple. Again, that is something that the government cannot and will not accept. Let's work this example through. If you're renovating your home, as so many have done in Australia, you engage a builder who has a good reputation. Let's face it: you wouldn't want to engage a builder who has a bad reputation. That builder, as many in the building industry do, subcontracts out part of the work. For example, you're renovating your kitchen. The kitchen company, as it can do, further subcontracts work to a plumber. It makes perfect sense to me: they want the plumber to come in and do the plumbing work. The plumber then pockets a premium by underpaying a small subset of their employees. Is that wrong? Absolutely, 110 per cent! And the worker, under current law, can—and should—pursue the plumber for the payment to which they are entitled, with the assistance of the Fair Work Ombudsman should they so desire it. Under the opposition's proposed amendment, you personally would be assumed guilty of the underpayment of the employees three steps removed from you unless you could prove your innocence.
Let's take another practical example that will affect small business: a small printing business. There are plenty out there; we've all used them at one stage in our life. Under this proposal this small business owner, who just wants to run his business, pay his taxes and pay his employees, could be held liable not only for the underpayments of their own workers—which they should be held liable for and can be—but for underpayments by a courier who delivers goods to the small business, the maintenance workers who are contracted to mow the lawns out the front or the service company that comes in once a month to pick up the old toner cartridges for recycling. Not only that, the small business owner would be presumed complicit—that's right, you will be presumed complicit—in any underpayments of workers by these other entities unless you can prove otherwise. In other words, you will now have to provide proof about underpayments that you had no idea were occurring because you were so far removed down the chain. But, under this amendment, you are potentially liable.
Serious concerns have been raised in relation to this amendment by the small-business community right across Australia. If this goes through, it will literally have a chilling effect right across the Australian economy. As we know, given that small business is the biggest employer in Australia, it will have a disproportionate effect on small businesses. In terms of the work the government is doing in relation to labour hire, some time ago—as those opposite will be aware—we established the government's Migrant Workers' Taskforce. It is a cross-portfolio task force. More than that, it is chaired by Professor Allan Fels. I don't think anybody here would dispute, in any way, Professor Allan Fels's commitment to doing the right thing by vulnerable workers. Professor Fels, on behalf of this task force, will be providing the government with seriously considered policy options early next year.
The bill itself is a significant improvement in protections for vulnerable workers, including those engaged by labour hire companies. As I said, we have established the Migrant Workers' Taskforce, which is actively examining, in a very serious and considered way, the issue of exploitation of workers, including labour hire workers. Anyone who can stand here—Senator Cameron has—and say they support laws that will ensure that vulnerable workers are not exploited cannot then, in the same breath, say, 'But if our amendment doesn't get up, we will not support the bill.' Senator Xenophon has clearly articulated the benefits of this bill. This bill is not just confined to the amendment we are discussing today. There is so much more in this bill—in particular, in relation to the increase in penalties. The increase in penalties—and it is a very substantial increase—will send a very clear message to any employer out there: if you are going to underpay employees, you will be caught and you will pay the financial price, as you should.
In relation to this amendment, again, I will not stand here on behalf of the government and say that a mum and dad who are renovating their kitchen should be held liable for the underpayment of someone when they had no knowledge it was happening because they were so far removed down the chain. I will not stand here and declare war on small business in Australia. Why? Because that has already been adequately done by those on the other side and, in particular, by the Leader of the Opposition, Mr Bill Shorten. As I have said, this amendment, if passed, will have a very serious chilling effect across the Australian economy. On that basis, I ask all senators to not support the amendment.
Senator CAMERON (New South Wales) (13:19): The fundamentally crazy propositions that this minister is putting are a load of nonsense. I know, Minister, that you have had some setbacks in this bill but you should not start doing vaudeville when you're in the trouble. That is what you have just done. Having Allan Fels look at something doesn't mean that the government will implement the recommendations. If you are thinking it does mean that, get up and say so. You only have to look at the last inquiry this government had—when the Chief Scientist, Dr Finkel, was asked to look at electricity supply issues in this country—and the biggest change that Dr Finkel proposed concerning the clean energy target, which the government won't deal with because the Prime Minister, Malcolm Turnbull, is so weak, so jelly-backed, that he can't stand up to the climate change deniers. So there is absolutely no guarantee that anything Dr Fels does will end up being in legislation. The response to Dr Finkel's work is another example of this government's talking big and delivering little.
The minister also accused me of saying that Labor would not support the bill. We have not said that. What we did say was that there had to be amendments, and we have proposed a number of amendments. So you, Minister, are behaving badly and what you have just said is off the planet. Labor's amendments are intended to make the economic decision-makers accountable for the contracts they enter to. It is absolutely ridiculous to suggest that under Labor's amendments a small business would be held accountable for contraventions by big companies when they have no reasonable way of either influencing the conduct of a big business or knowing about its conduct. Extending potential civil liability across the supply chain is about stopping big business and companies from negotiating contracts which can only be fulfilled by the underpayment of wages. This is about making the economic decision-makers take an active role in ensuring that the people who do the work to supply the goods and services are not exploited. In the introducing the bill into the House Mr Dutton said in his second reading speech, in reference to extending civil liability to franchisors:
The Fair Work Ombudsman is required to act as a model litigant and will pursue prosecution only in cases where penalties are appropriate.
So the mum-and-dad renovators of Australia have nothing to worry about—Mr Dutton has made it clear. But Minister Cash comes in here, having suffered a number of setbacks, and goes on this rant about mum-and-dad renovators ending up in breach of the act. It is just nonsense. Mr Dutton also said in the second reading speech:
The regulator will also be in a position to support businesses, especially franchisors, franchisees and small businesses, to understand these changes and take any necessary simple steps to ensure that their networks are aware of their obligations under the Fair Work Act.
This is from the representing minister in the House of Representatives, who seems to understand the bill better than the minister in the Senate. What has just been put is nonsense. I repeat:
The Fair Work Ombudsman is required to act as a model litigant and will pursue prosecution only in cases where penalties are appropriate.
If that holds for the government's scheme for franchises, it hold for Labor's amendments as well. I would have thought that rather than trying to put fear into young couples carrying out a home renovation, maybe the minister would have spent a few minutes talking about Baiada, that chicken-processing company that ripped workers off mercilessly. Did we hear anything about that? Not a word. Just this rant, this raving on about how young couples carrying out home renovations are going to end up breaching the law. An absolute nonsense!
Previously the minister spoke about Labor cutting funding to the Fair Work Ombudsman. Let me tell you, if the trade union movement had decent rights of entry and did not have the impediments that this government has put in place to the unions representing the members, then you wouldn't need this massive bureaucracy called the Fair Work Ombudsman. The trade union movement could do what it's done over many years—ensure that its members, and by ensuring its members then non-members, are well looked after without a massive government bureaucracy to try and do it.
The reason that this government runs these scare campaigns is because they know what they're about. They are about fundamentally reducing the capacity of workers to get access to the trade union movement, through restrictions on right of entry, through restrictive anti-union policies and legislation like the ABCC. It's like what it tried to do when it got control of the Senate—take away workers' rights to bargain through Work Choices, forcing workers in small companies around the country to negotiate directly with their employer in an unfair bargaining position.
This is about ensuring that companies like Baiada, who set about destroying workers' capacity to get paid for the work that they're doing through these arrangements with labour hire contractors, are held responsible. That's what we have to do—make sure that vulnerable workers are protected. If this minister really was concerned about protecting vulnerable workers, then the situation that was exposed at Baiada through a combination of the trade union movement, Four Corners and the media exposing it—something would be done about it. But this minister wants to go down this stupid path of saying this will chill the Australian economy and stop young people renovating their house. I have heard a lot of stupid arguments recently, from the foreign minister, Julie Bishop, down, arguing that there is some communist control taking over the country. This just shows how crazy this government is. This government has lost the plot. If anyone wants to see why this government has lost the plot, go back and look at the Hansard of Minister Cash's response prior to my contribution. It was absolute nonsense. It was all about protecting big business; all about protecting businesses that are ripping workers off; only concerned about making sure business can get their nefarious way with ordinary workers.
Vulnerable workers are the issue. Let's deal with protecting vulnerable workers. I think that's why Senator Marshall, in his contribution, indicated that under this government there is a failure in the operation of industrial relations in this country, where companies can get away with doing what Baiada did almost unscathed, where vulnerable workers get ripped off every day on the job. It is not the prettiest job; it is not the best job in the world—processing chickens—but somebody has to do it. If you do it, you should be paid appropriately for doing that work. We should not have this minister raising the spectre of young home renovators being in breach of the law because Labor wants to make sure that those that make the economic decisions actually bear some responsibility. What a load of rubbish we just heard from the minister.
Our amendments are about doing what the Franchise Council of Australia asked us to do—that is, to look more widely at this and not target the Franchise Council themselves. These amendments will also ensure not just that vulnerable workers in franchising operations are given some protection but that workers in all arrangements across the country are given some protection. If the principle is good enough for franchising companies, it is good enough for those employers who are exercising the economic decision-making at the plant level to make sure that their subcontractors and their labour hire companies are paying workers the appropriate wages and conditions. That's what the minister should be thinking about and addressing—not just part of the economic activity of this country. As the Franchise Council itself said, 'You should not look just at us; this is a problem across the economy.' So we've taken that on board and looked at it, and we are moving these amendments so that, if vulnerable workers are being ripped off, there is accountability not only in the franchising industry but across industry to deal with those issues. That's where we are on this matter.
If the trade union movement in this country had decent rights of access and if this government were not setting about creating an atmosphere of fear and loathing towards the trade union movement, workers would be better paid and we could ensure that workers got paid penalty rates. When 700,000 workers are losing their penalty rates, the Prime Minister and the minister simply support that proposition. We are about fairness in the workplace. We are not about Work Choices, in the context of the Howard government and the antecedents of this government. We are determined that vulnerable workers should be protected. These amendments will protect workers in franchise areas and workers doing work for labour hire companies from being ripped off by companies that know what's going on.
These are important amendments, and we would certainly hope that the crossbench would apply the same principles that they've applied to the previous amendments to this bill. The principles are the same; the situation is the same—vulnerable workers are being ripped off. I would ask that the crossbench provide the same support they've given in the franchise area to this area, because the issues are no less important. The rip-offs are no less egregious. The pain and suffering for vulnerable workers is not less if you're being ripped off by a labour hire company than if you're being ripped off in the franchising industry. We would ask that some common sense apply and that the raving of the minister is ignored, that the crazy argument the minister just put up is ignored, and we get on and protect all vulnerable workers in this country.
Senator XENOPHON ( South Australia ) ( 13:34 ): I can indicate that I and my colleagues cannot support these amendments moved by Senator Cameron. We understand his concerns, but these amendments, in their scope, are incredibly broad. It is something that is being looked at by Professor Allan Fels, in terms of migrant workers and other vulnerable workers, and I have great confidence that Professor Allan Fels will be thorough and diligent and do the right thing, in terms of coming up with sensible recommendations to further protect vulnerable workers.
The problem I have with these amendments is that they are so broad, so imprecise, that they will cause litigation chaos in the small-business community and amongst subcontractors. They will have economy-wide effects. For instance, and this is not a criticism of the intent or the good intentions that Senator Cameron has in relation to this, the wording which refers to a person having 'influence or control over the worker’s affairs or the affairs of the worker’s employer'—incredibly wide, incredibly imprecise. The amendment makes reference to the worker otherwise forming part of the conduct of the undertaking of the person. To unpack that, from a drafting point of view, is so problematic. I believe that this amendment needs to be looked at appropriately. Professor Allan Fels ought to look at some of the issues raised here, and this has to be deferred to another time. There already is quite a robust framework of protections in this legislation. Let's make sure that the perfect is not the enemy of the good. I am concerned that the impact on small businesses and on subcontractors could be devastating. I believe that this will be revisited down the track.
We cannot support this amendment, but I would like to get some indication from the minister, further to discussions that have occurred in the chamber in the course of this debate, that there will be an independent review of these clauses and the sorts of issues, in terms of reverse onus, as to the effectiveness the bill. The minister has said that the coercive powers don't go far enough and that they should be all-encompassing. For that issue and for all the issues that have been fairly raised in the bill, can the minister indicate that there will be an independent review once this bill has been in operation for 12 months so that we can then have a thorough, comprehensive independent review? Will she undertake to consult with the opposition and the crossbenches as to the scope of that review so that we can have some idea that it will be something that is robust and well-regarded?
Senator CASH ( Western Australia — Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women ) ( 13:37 ): I thank Senator Xenophon for his comments and for not supporting the opposition's amendment. Yes, the government had always intended to undertake a review. I'm more than happy to commit to you that we will undertake a review within 12 months in relation to this. Consultation is always an important part of any review process.
Senator WATT (Queensland) (13:37): I would also like to speak on behalf of the opposition in support of these amendments. Last sitting I spoke on the substantive bill itself and said that I welcomed many aspects of this bill for finally delivering some increased protection to vulnerable workers, particularly those employed through franchise arrangements. I made the point in the last sitting that I did not think that this bill went anywhere near far enough. There's no better example of the need for this bill to be pushed further than the regulation of labour hire firms, particularly if we're talking about underpayments by those labour hire firms. I've spoken about the issue of labour hire and the problems it's causing in Queensland workplaces on a number of occasions in the chamber.
My experience with labour hire firms goes back further than the brief time that I've been a member of the Senate. As a solicitor many years ago, acting for employees in employment disputes, I well remember—this is going back 15 years or so, so this has been a problem for a long time—the problems that people who were employed through labour hire firms had in pinning down exactly who their employer was so. For instance, if they were unfairly dismissed, who was the entity that they were supposed to take legal action against? They'd try to take on the host employer, who had engaged a labour hire firm who then engaged them, and, of course, that employers would say, 'It's not us; we're not the employer. It's the labour hire firm.' You would then try to sue the labour hire firm, and they'd say, 'No, you're not an employee of ours; it's the host employer.' It was very difficult for employees of labour hire firms to determine who they should be taking legal action against, even when they had a really clear-cut case of being underpaid or sacked unfairly, or some other course of action that they needed compensation for.
Even in the fairly brief time that I've been a senator I have been struck by the widespread use of labour hire right across our economy and the incredible abuses that many people experience through labour hire. I should put on the record that I absolutely accept that there is a place for labour hire arrangements within the economy and within workplaces. In particular I can understand that for seasonal work, where there are peaks and troughs in workload, there are going to be times when employers need to turn to labour hire agencies or other short-term mechanisms to gain workers, because they're not going to have work for people there in six, nine or 12 months time. I also acknowledge that there are many labour hire firms that do follow employment laws, employ people fairly, pay the correct rates and respect the legal conditions that people are entitled to. But unfortunately—at least in Queensland, where I spend most of my time—we are seeing more and more instances of workers being absolutely screwed through labour hire arrangements which are designed explicitly to reduce people's pay and conditions, often below legal standards.
Currently, from what I can see, the area in Queensland where this is most rife is Central Queensland. We all know that the mining industry has gone through a downturn in recent years. When times were good and people were earning good money, employers had to turn to any mechanism they could to find workers to fill skills shortages. They were bringing in overseas labour and taking people through labour hire, as well as through direct employment. But, in the last few years, since the industry has been through a downturn, unfortunately a lot of employers, a lot of the big mining companies, are continuing to use those arrangements not simply to gain workers they can't gain through direct employment but to try to force down the wages and conditions of the people who work on their sites.
As I've mentioned before in the chamber, over the winter break this year I spent some time in the Bowen Basin, one of Australia's largest coalmining regions. It's really disturbing to hear the stories of people who are being grossly exploited under labour hire arrangements. That is having an effect not only on them and their own families but also on their communities as a whole. I've seen examples, which I've mentioned here previously, of large mining companies retrenching well over a hundred workers on a certain day, allegedly because they don't have enough work to maintain these people on a permanent basis, but then, the very same day, advertising in the local papers for people to come and work on their site, on labour hire, on far worse terms and conditions than those offered to their permanent workers. It's not as if there's a shortage of work that is leading to these people being made redundant. Clearly, labour hire is being used by these big mining companies to cut their wages bill, at the expense of the people who come and work on their site.
Again, I've personally come into contact with many people who have been engaged via labour hire not just for weeks or months but for years. They turn up to work as an employee of a labour hire company, not always getting the right wages and conditions, sometimes getting worse than what they're legally entitled to, but too scared to complain about it for fear of losing their job. Although they might not like working via labour hire arrangements and might not be getting the legal rates and conditions, it's better than nothing. They're forced to accept these conditions, even if they are below legal standards, simply to hang on to the job that they have.
Senator Cameron was talking about how some of the worst examples of labour hire abuses we've seen have been in the meat industry, and about one particular company, Baiada. Unfortunately the worst example there, again, happened in my home state, in Mareeba, in North Queensland. People were brought in from overseas on 457 or 417 visas to work. They were engaged by labour hire firms and were paid well below legal rates and conditions. For the privilege, they were shacked up in terrible, overcrowded accommodation and they turned up to work every day to find themselves even more exploited. Fortunately the meat industry union was able to take legal action and to get some redress for these people. But these kinds of things are going on over and over again.
There are a range of media organisations, most particularly the ABC, with its Four Corners program, and the Fairfax press, who have done a fantastic job in exposing these abuses. Again, we're seeing these abuses in many farming workplaces—in many workplaces across the board—often combined with the exploitation of overseas labour. Again, people are brought in with the promise of earning good money in Australian workplaces, only to find themselves hired by labour hire firms and underpaid. They are scared not only of losing their job if they complain but also of being deported back to their home country. And that's not an idle threat. There have been many instances in which people who did stand up against the labour hire firm that had hired them were actually deported. You only need to do that once or twice before people hear the message and everyone else in the workplace goes silent.
But it's not happening just in private sector workplaces, and it is not happening just in Queensland. This is a cancer that is eating into workplaces right across the country, and into the public sector as well. Just recently I met with members of the CPSU, who were talking about the expanding reach of labour hire within the Commonwealth public sector. Agencies like the tax office and Centrelink are increasingly turning to labour hire to put people on. Again, it comes with a reduction in terms and conditions. Most recently, at the spillover day that we had for the Legal and Constitutional Affairs Legislation Committee's estimates hearing, we had extraordinary evidence from the Commonwealth Director of Public Prosecutions, who said that in order to meet staffing targets that had been imposed on them by the federal government they had to—rather than employing people directly, because they could only employ a certain number of people that way—meet their additional needs by putting people on via labour hire. That way, people weren't counted as being on their payroll. That was a way of making sure that they had the extra people they needed without those people actually going on the books and being counted as direct employees.
But the sting in the tail, as it always is with labour hire, was that the people who were being engaged by labour hire, working right next to direct employees of the Commonwealth DPP, were actually earning less than the direct employees. The real kicker is that it's actually costing the Commonwealth DPP more, because they've got to pay a fee to the labour hire firms to engage people. So it's no surprise that we see wages stagnating in this country. It's no surprise that people in their workplaces, no matter where they are, feel more insecure than they ever have, when the government's own employment practices are such that employers are turning more and more to labour hire in an attempt to screw down their wages bill and keep their own employees working in more insecure conditions but at greater cost to the taxpayer.
Now, in terms of these amendments themselves, Senator Cameron has already mentioned that it's not just Labor and not just trade unions who are saying that there is a real issue in the labour hire sector and that making host employers liable for underpayments should go beyond franchising arrangements. The Franchise Council itself, in its own submissions in evidence to the inquiry on this bill, made the point that exploitation of vulnerable workers is not something that's happening only in the franchising sector. Certainly some of the worst examples we've seen are in that sector, but this is a problem that is economy wide. It is particularly a problem in the labour hire sector. That's why we think these amendments should go far beyond simply applying to employment arrangements in the franchising sector and should pick up labour hire as well. Minister Cash, in her response to some comments earlier, mounted a pretty strange scare campaign—a strange one even coming from her. She had us all worried that—
Senator Bernardi: Not as strange as your videos!
Senator WATT: They're pretty good, too. I'm glad you like my video, Senator Bernardi! Senator Cash tried to conjure up this scare campaign involving a couple—she didn't say if they were a same-sex couple or a heterosexual couple—who were doing a kitchen renovation and might be liable for underpayments made to workers in their kitchen renovation who were engaged through labour hire. Listening to her talk about this I was worried that before long we'd be seeing inspectors run on to The Block or Renovation Rescue, one of those programs, to bail up people who might be underpaying workers on their sites. We all know that's not what this bill is about. This bill is about tackling genuine labour hire arrangements where people are getting screwed and getting paid less than what they are owed. It's not about, as Senator Cash would have you think, the courier who drops stuff off to a small business. It's not about the person who brings in replacement cartridges for the printer, or the person who brings in the new water to go in the water cooler. It's not about those people. It is not about the small business being held liable for underpayments they might make. It's about businesses, whether they be large or small, being held accountable when they enter into a contract with a labour hire firm to employ people—when they try and pass on that responsibility for employment and payment to someone else—but then don't want to have any responsibility whatsoever for making sure the people who are employed are paid properly.
These amendments will go some way to making even the balance between people who are employed via labour hire firms and the host employer who actually has them working on their site. It won't go all the way, and Labor have put forward a number of other proposals which we'd like the government to take up to try to impose greater regulation on labour hire firms that are doing the wrong thing. We've now seen at least two state governments, the Queensland government and the Victorian government, require licensing of labour hire firms to make sure that they meet the legal standards, and we would very much like to see the government take up that proposal as well. In the meantime, the very least that it can do, and the very least that crossbenchers can do, is to support these amendments from Labor to make sure that people who are working via labour hire arrangements actually get paid what they're owed.
Senator CAMERON (New South Wales) (13:52): I want to take up the issue that has just been ventilated, and that is the scare campaign that Senator Cash is trying to run in relation to these amendments. I find it unbelievable that we can have a position where a minister can get up on a bill dealing with vulnerable workers and say that we are now going to have mum-and-dad renovators—young couples doing renovations—being subjected to a problem that's going to destroy the economy. I mean, this is just taking things far too far. This is about vulnerable workers. This is about this government not being prepared to take the next logical step, and that is to ensure that vulnerable workers are protected, whether they are working for a labour hire company, a franchisee or a franchisor. That's what this is about. There is absolutely no logic to what the minister has just been going on about, some scare campaign about home renovators. It just beggars belief.
We have seen some of the worst examples of workers being ripped off by labour hire companies working under the auspices of a farmer who knows that there are problems but simply turns a blind eye to those overseas workers being exploited—by the farmer or the labour hire company. This is about ensuring that everyone that's exploited gets a fair go. If it's good enough to ensure that there's no exploitation for workers in the franchising sector, it's good enough to ensure that the same principles apply across the economy for workers in other sectors of endeavour across this country.
I just noticed that the case involving Bruce Billson, the former cabinet minister, has been put to the committee in the lower house to look at whether he breached parliamentary standards by accepting funding from the Franchise Council while he was still a member of the government. I think there's a complete disregard from those opposite for doing the right thing when you can have a former cabinet minister accepting a job and being paid by the Franchise Council of Australia while he was still a member of parliament. That's what we've seen, and we see now that the Privileges Committee in the House of Representatives are having a look at that. Is it any wonder that Senator Cash is in there opposing aspects of our amendments that go to protecting vulnerable workers in this country? Is it any wonder, when her former cabinet colleagues are out there trying to stop workers who are in vulnerable situations from being looked after by appropriate regulations and appropriate laws in this country?
You never hear Senator Cash getting up and running an argument on behalf of exploited workers. It's always the fault of the trade union movement. It's always the workers' fault; it's never the fault of business. It's never the fault of those businesses that are handing millions and millions of dollars over to the coalition for their election campaigns. It's never their fault; it's always the worker. If you are unemployed, it's your fault you haven't got a job, even though there's no jobs out there for many unemployed workers. We know the situation with this mob: they are absolutely opposed to having decency in the legislative processes in this country.
It was only when it became clear that the 7-Eleven and Caltex situations could not be tolerated that they moved to do anything about them. They had four years to bring legislation to this parliament to try to prevent vulnerable workers being ripped off, but did they do anything? No, they didn't. They didn't do it, and it was Four Corners—it was the media—that was out there exposing workers being ripped off egregiously by employers in this country. It was only then that they were forced to take a stand and were forced to take anything to the parliament. They do not care, in my view, about looking after workers' rights in this country. That's why we had Senator Abetz, when he was the opposition—
Senator Abetz: Thank you for the recognition.
Senator CAMERON: Welcome, Senator Abetz. Senator Cash is following in the footsteps of Senator Abetz. She would probably have been better leaving Senator Abetz there, because Senator Abetz is known for his oppositional views on unions and workers. We now have Senator Cash following in exactly that same mould, trying at every opportunity to attack the trade union movement and at every opportunity to attack workers' rights. When the Fair Work Commission takes away penalty rates, what do they do? They just stay mum. In fact, they go out and they support—
Senator Abetz: What do you do when Bill Shorten does it? What do you do when Bill Shorten takes away penalty rates?
Senator CAMERON: Senator Abetz is getting quite carried away now. Senator Abetz, I don't mind you yelling at me. You've done enough yelling at your colleagues since you got knocked off. That's okay. You can yell at me all you like. You can take all your bile and all your spite out on me; it won't worry me. It will not worry me one bit. Maybe one day you'll stand up here and support vulnerable workers. Maybe one day you'll stand up here and actually support workers' rights in this country, because Senator Cash won't do it. She's following in your footsteps to attack vulnerable workers in this country, to make sure vulnerable workers don't get protections that they should get—even when you've got a former cabinet minister now being referred to the Privileges Committee in the House of Representatives because he was taking money from the Franchise Council while he was still a member of parliament. It just shows you what a rabble this government is.
Progress reported.
QUESTIONS WITHOUT NOTICE
North Korea
Senator WONG (South Australia—Leader of the Opposition in the Senate) (14:00): My question is to the minister representing the Minister for Foreign Affairs, Senator Brandis. Yesterday the North Korean regime undertook its sixth nuclear test, which it claims was an advanced hydrogen bomb. Obviously North Korea's continued nuclear testing is deliberate, dangerous and provocative. Can the minister update the Senate on this event?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:00): Thank you, Senator Wong, for that very important question. I can confirm that on Sunday, 3 September the North Korean regime claimed to have conducted a successful test of a nuclear device. The seismic event of approximately 6.1 magnitude is consistent with a nuclear device of significantly higher yield than previously tested by the regime. It was detected at a site where previous nuclear tests have been conducted. North Korea has subsequently claimed this event was the successful test of a hydrogen bomb. This would be the sixth illegal test conducted by Pyongyang. This action represents a serious escalation of tensions in the region. Australia is working with our regional partners to determine the precise nature of the test conducted by North Korea.
Australia utterly condemns this flagrant defiance of United Nations Security Council resolutions, which ban nuclear weapons development and testing by Kim Jong-un's regime. This nuclear weapons test is designed to advance North Korea's illegal capabilities and test regional and global resolve. North Korea continues to pose a completely unacceptable threat to global peace and stability. It must instead focus its resources on the welfare of its impoverished people. All nations need to fully implement existing UN Security Council resolutions, including the latest, resolution 2371, which further limits the North Korean regime's access to finance through exports. The collective approach we share with our allies and partners has not changed. We are even more determined to stand firmly against this pariah regime and achieve an acceptable resolution to this situation.
The PRESIDENT: Senator Wong, a supplementary question.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (14:02): I thank the leader of the government for that answer, and I ask a supplementary question. This weekend's test came only a few days after North Korea fired a ballistic missile over northern Japan. Can the minister provide an update on how Australia is working with our partners in North Asia to protect peace and stability in the region?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:03): Yes, I can, thank you, Senator Wong. Australia implements a sanctions regime aimed at limiting North Korea's ability to develop weapons of mass destruction. Australia does so in collaboration with our regional partners and indeed with the global community. We deliver a very clear message to North Korea: your interests are best served by ceasing your nuclear and ballistic missiles programs and engaging positively with the international community. Like our regional partners, we say that North Korea must end its provocative behaviour, and we continue to work with the United States, the Republic of Korea, Japan, China and our other friends and partners to ensure the strongest possible response to North Korea's defiance of international norms. We have repeatedly said we are committed to the path of diplomatic and economic pressure to resolve the crisis, and we will continue to work with those partners to change North Korea's behaviour.
The PRESIDENT: Senator Wong, a final supplementary question.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (14:04): In light of that answer, I ask: what measures are the government taking to support the global community's unanimous resolve to reduce tensions and resolve conflicts on the Korean peninsula?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:04): Thank you, Senator Wong. Australia is participating in the UN Security Council resolutions and supports the resolutions demanding the end of North Korea's ballistic and nuclear programs. We are participating in the sanctions regime adopted on 5 August which banned whole export sectors—coal, iron, iron ore and seafood—from the North Korean economy. These are by far the toughest sanctions yet and will be fully implemented by all countries, including Australia, as soon as possible. When fully implemented, the sanctions will place unprecedented pressure on the North Korean economy and significantly increase the costs on Pyongyang to cease its illegal activities and freeze and eventually abandon these programs. We welcome the robust response from China to this provocation and we call on China to put its words into action and use its unique leverage over Pyongyang. (Time expired)
National Security
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (14:05): My question is to the Minister for Defence, Senator Payne. Can the minister advise the Senate how Australia is increasing its Defence engagement with its partners and allies in the Indo-Pacific region?
Senator PAYNE (New South Wales—Minister for Defence) (14:05): I thank Senator Fawcett for his question. The strong cooperation that we have and that we continue to build with our partners and allies across the region is indeed crucial for the safety and security of Australia and for regional stability and security. This morning I spoke with my counterpart in Japan, Minister Onodera, to discuss North Korea's ongoing destabilising behaviour, including, of course, the claimed nuclear test yesterday and the 29 August ballistic missile launch that overflew northern Japan. Australia and Japan have both unequivocally condemned the illegal tests and call further upon all nations to implement the UN sanctions against North Korea. It is vital that Australia works cooperatively with its partners and allies to address the security challenges in the region. We are stronger when we work together. Indeed, in the 2016 Defence white paper we increased funding for international engagement because we recognised the need for our international partnerships to more effectively address common threats. It was never more important than we have seen in recent days and weeks.
As part of this increased engagement, in the last fortnight I visited Singapore, Thailand, Laos and Vietnam to share our views on the region and discuss how we can work together to address them. Each of the ministers with whom I met also shared their concerns about not just the destabilising behaviour of North Korea but also the increasing challenges to the rules-based global order and the rising threat of terrorism in our region, well illustrated by the events in the southern Philippines. Australia is strongly committed to engaging broadly and to resisting efforts to undermine the current rules-based order. Only through unity of purpose on these issues will Australia and our partners be able to sustain a system that benefits all nations and builds both regional stability and prosperity.
The PRESIDENT: Senator Fawcett, is there a supplementary question?
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (14:07): Can the minister advise how else Australia is engaging with our region to improve security cooperation?
Senator PAYNE (New South Wales—Minister for Defence) (14:07): On Wednesday this week I will travel to the Republic of Korea to meet with Prime Minister Lee Nak-yeon and my counterpart, Song Young-moo, to discuss the security situation on the Korean peninsula and further strengthening the Australia-Republic of Korea defence relationship. It's fair to say that Australia and the Republic of Korea are close partners that share a long history of security cooperation. Like Australia, the ROK is a US ally, a democracy, a like-minded middle power and one of our key economic partners. While I am in Korea, I will deliver the key note address to the Seoul Defence Dialogue, which is a major regional forum for fostering understanding and cooperation on regional and global security issues. We strongly support South Korea and the United States as they work to address the challenges of North Korea. We are supportive of efforts to forge regional and multilateral solutions to enhance security across the Indo-Pacific and to deal with the threats that North Korea poses to regional security. (Time expired)
The PRESIDENT: Senator Fawcett, is there a final supplementary question?
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (14:09): Can the minister advise how Australia is working with its partners in the region to combat the risk of terrorism?
Senator PAYNE (New South Wales—Minister for Defence) (14:09): Following my visit to North Korea, I am travelling to the Philippines to meet with my counterpart, Secretary Delfin Lorenzana. The siege of Marawi city by Daesh-aligned forces poses a threat to Australia's interests and to regional security. As Daesh comes under increasing pressure in Iraq and Syria, Australia will continue to work with our partners and allies across the region to prevent foreign fighters from spreading their toxic extremism in the Indo-Pacific.
The Australian Defence Force's AP-3C Orion aircraft continues to provide surveillance to the Armed Forces of the Philippines as part of Australia's whole-of-government efforts to counterterrorism in the region. This contribution builds on our extensive program of regional counterterrorism capacity building and engagement—an issue on which I also engaged in my visits in the previous fortnight. We continue to review our commitment to the Philippines. We have offered further support, and this will form the basis of my discussions. (Time expired)
MINISTERIAL ARRANGEMENTS
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:10): I know this is a little unusual, but I've now been provided with a script for the ministerial arrangements. I apologise to the Senate that I didn't have it to hand when we commenced at 2 pm. I seek leave to read the statement.
Leave granted.
Senator BRANDIS: I thank the Senate. I advise the Senate that Senator Ryan will remain absent from question time for the duration of the September sittings on medical leave. In Senator Ryan's absence, Senator Cormann will continue to represent the Special Minister of State, Senator Fifield will represent the Minister for Social Services and Senator Payne will represent the Minister for Human Services. Senator Payne will be absent from question time on Wednesday, 6 September and Thursday, 7 September. In Senator Payne's absence, I will represent the Minister for Defence, the Minister for Defence Industry, the Minister for Veterans' Affairs, the Minister for Defence Personnel and the Minister Assisting the Prime Minister for the Centenary of Anzac. Senator Cash will represent the Minister for Human Services in Senator Payne's absence. Senator Fierravanti-Wells will also be absent from question time this week on overseas ministerial business. In Senator Fierravanti-Wells's absence, Senator Sinodinos will represent the Minister for International Development and the Pacific on Monday, 4 September, Wednesday, 6 September and Thursday, 7 September. Senator Sinodinos will be absent from question time on Tuesday, 5 September.
Senator Wong interjecting—
Senator BRANDIS: Don't worry, Senator Wong, I'll be here all week! In Senator Sinodinos's absence, Senator Birmingham will represent the Minister for Industry, Innovation and Science, the Minister for Trade, Tourism and Investment and the Minister for International Development and the Pacific. I thank the Senate.
QUESTIONS WITHOUT NOTICE
Deputy Leader of the Nationals
Senator POLLEY (Tasmania) (14:12): My question is to the Minister for Regional Development, Senator Nash. When did the minister first become aware of the possibility that she may be entitled to British citizenship by descent?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:12): Those time lines have been very clearly articulated by myself and by Senator Brandis through the Senate estimates process. I became aware of the issue, the government then sought further legal advice and I made a statement in the chamber on the Thursday evening.
The PRESIDENT: Senator Polley, a supplementary question.
Senator POLLEY (Tasmania) (14:12): What finally prompted the minister to check whether she was entitled to British citizenship?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:12): I have made a very clear statement in this place around the processes that relate to the issue of my citizenship. I have indeed, since that time, renounced my citizenship. This had been made very clear through my statement and through the processes, and I have been very open and transparent in the arrangements that have been in place for this. I would expect that those on the other side would also be open and transparent. I have great respect for the Australian people, and I have made sure that, throughout this entire process, I have been very clear, very open and honest about the circumstances of that arrangement.
The PRESIDENT: Senator Polley, a final supplementary question.
Senator POLLEY (Tasmania) (14:13): Given that the issue of citizenship has been canvassed widely in public discourse since July, why had the minister not turned her mind to the possibility earlier?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:14): Again, I'm a little surprised, perhaps, that the senator opposite hasn't followed a little more closely the statements that I have made and the government has made on this issue. I have been very clear. Indeed, that statement indicates the history as it lays out in relation to my family and in relation to my Scottish father. At the first opportunity, I advised the Senate of those circumstances and, again, I'm a little disappointed that the senator hasn't made more of an effort to find out those circumstances.
Energy
Senator DUNIAM (Tasmania) (14:14): My question is to the Minister for Education and Training, representing the Minister for the Environment and Energy, Senator Birmingham. Can the minister update the Senate on the actions the Turnbull government is taking to put downward pressure on power prices?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (14:15): I thank Senator Duniam for his question, and I know his strong interest in relation to the cost of living pressures that many Australians face and that many Australian businesses face, including in his home state of Tasmania, in terms of accessing secure, affordable and reliable energy. The Turnbull government is taking unprecedented action right across every factor of the energy supply chain to drive down prices. Across networks, across generation and across retailers, we are delivering the action that will put downward pressure on power prices.
In relation to networks, which account for around 50 per cent of energy bills in Australia, we have legislation in the parliament being debated today to abolish the ability of networks to game the system through the limited merits review process, which to date is estimated to have cost consumers around $6.5 billion. That is $6.5 billion on power bills around the country that can or should have been avoided, and our reforms will make sure that that system works far more effectively in terms of the network regulation in the future.
In relation to generation, which comprises around 30 per cent of household energy bills, our domestic gas security mechanism will ensure adequate supply for the domestic market and, indeed, it has already seen a fall in the spot price of gas over recent months. In the generation front, we are undertaking further investment such as that in the Snowy 2.0 scheme, which will see around 350 gigawatt hours of energy delivered—enough to power at full capacity for more than seven days.
Senator Wong interjecting—
Senator BIRMINGHAM: That's far more, Senator Wong, than any of Jay Weatherill's diesel generators can generate! We are putting real pressure on the retail component—12 per cent of the bills: action to ensure consumers in every household across Australia can manage to get the best deal on their retail price in the future. (Time expired)
The PRESIDENT: Senator Duniam, a supplementary question.
Senator DUNIAM (Tasmania) (14:17): I thank the minister for his answer. Can the minister further apprise the Senate of the commitments the Turnbull government has secured from electricity retailers?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (14:17): The truth is that 50 per cent of Australian households have not moved retailers or contracts in the past five years, even though for many of them savings could be as high as $1,500 off their electricity bill. That is why last week the Prime Minister and Mr Frydenberg worked through with energy retailers to secure additional commitments to ensure those consumers, those households, get the best deals. Those retailers will now write to one million customers who have come off discounts and a further one million customers who are on standing offers, all of them by Christmas, meaning two million Australian households stand to benefit by getting a better deal on their energy bill by the year's end.
Opposition senators interjecting—
Senator BIRMINGHAM: I know those opposite don't seem to care, Mr President, but on this side I know Senator Duniam and everybody else believes that two million Australian households accessing cheaper electricity is a great thing. It is something to do everything you can possibly seek to deliver. While they won't do that hard work and they don't care, we are determined to ensure that every Australian household gets the best possible deal on their energy contracts.
The PRESIDENT: Senator Duniam, a final supplementary question.
Senator DUNIAM (Tasmania) (14:18): Is the minister aware of any alternative approaches?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (14:18): We know that those opposite have turned a blind eye to energy issues and particularly to the spiralling costs in the energy sector. There was a real call-out last week, when Mr Butler, the shadow energy minister, admitted that Labor was warned about the impact on the gas export market and the way it was operating. They were warned that there would be higher prices. They were warned that there would be tighter supply. But, of course, they did nothing. It has taken the Turnbull government to address these issues, to take action. We see the irrationality of the Labor Party's energy policies writ large in my home state of South Australia, where this summer we are going to see Jay Weatherill and the state Labor government fire up diesel generators to keep the renewable energy in the system going. That, of course, is the madness of the policies that those opposite propagate, which have driven prices up, driven reliability and affordability down and created the type of circumstance that hurts Australian households and businesses. (Time expired)
North Korea
Senator DI NATALE (Victoria—Leader of the Australian Greens) (14:19): My question is to the Minister for Defence, Senator Payne. Yesterday we learnt that North Korea carried out its sixth nuclear test, involving what it claims is a hydrogen bomb meant for an intercontinental ballistic missile. This comes after weeks of escalating and frightening rhetoric from both President Kim Jong-un and President Trump. The threats to North Korea are clearly not working. Indeed, they seem to be having the opposite effect. Despite this, the Turnbull government has doubled down and continues to back the dangerous US President as he continues to escalate tensions. Minister, please explain how the Turnbull government's reckless decision to support Donald Trump's policy of escalation leads the world away from the path of war.
Senator PAYNE (New South Wales—Minister for Defence) (14:20): I thank Senator Di Natale for his question. What the senator fails to appreciate is that a significant proportion of the sanction measures which have been adopted most recently unanimously by the UN Security Council are only coming into full operation now. They are very comprehensive and important sanctions that must be given the opportunity to work. In engaging in discussions with our allies the United States, with Japan and with South Korea we are acutely focused on the potential impact that the regime's behaviour has not just for the region, not just for our own countries but indeed for the world. Every diplomatic measure, every measure that can be pursued through the UN Security Council, must be pursued and pursued to its fullest degree. That is the position which the government has taken.
At the same time, the Prime Minister has made it quite clear that the US and Australia stand as the strongest of allies on this issue. We understand that we have to make it extremely clear as allies and as observers of the rules-based global order, as observers of international law, that the behaviour of the regime in North Korea is illegal, is provocative and is destructive to regional stability and security, indeed international security and stability, and that is the very clear approach that the government, the Prime Minister, the foreign minister and I have taken.
The PRESIDENT: Senator Di Natale, a supplementary question.
Senator DI NATALE (Victoria—Leader of the Australian Greens) (14:22): We know that Australia has seen fit to pre-emptively offer our military support to the US in a war with North Korea, but we have done more than that—we recently joined the US in war games on the Korean peninsula. Can the minister explain in what scenario we would avoid the loss of millions of lives on the Korean peninsula if the US and its allies pursued a military solution to the North Korea problem?
Senator PAYNE (New South Wales—Minister for Defence) (14:23): Mr President, I'm not sure how the supplementary question relates to the original question but, notwithstanding consideration of that basic rule of Senate procedure, I would observe that the exercise to which the senator refers is an exercise of many years standing and is one in which Australia has participated before. If the senator wishes to engage in the same sort of rhetoric that the regime in North Korea engages in, which is to say that exercises are illegal and unlawful and much worse, then that is a matter for him and his political party. The more sensible observers, the more sensible commentators, are trying to deal with this issue in a reasonable, rational and considered way. This includes Australia and our allies. I spoke to the Japanese defence minister this morning, and I will be meeting later this week our allies in South Korea. If the Greens and Senator Di Natale choose not to do that, that is a matter for them.
The PRESIDENT: Senator Di Natale, a final supplementary question.
Senator DI NATALE (Victoria—Leader of the Australian Greens) (14:24): 'Reasonable' and 'rational' are not words that we would normally attribute to President Trump. Indeed, I would say he is somebody who is deeply dangerous, somebody who is putting us at risk. After close to a year of overwhelming evidence, hasn't the time come for us to unshackle ourselves from the US alliance?
Senator PAYNE (New South Wales—Minister for Defence) (14:24): In fact, the time has come for us to take the issues we are facing in relation to the North Korean regime very seriously and not to engage in the sorts of rhetoric Senator Di Natale is pursuing. The time has indeed come for us to ensure that with the international community, in the strongest possible way and as broadly as possible, we seek the application of the sanctions supported by the UN Security Council and that for countries where it is appropriate, such as Australia, those autonomous sanctions that we have adopted be applied and enabled to run their course as well as they can. We must ensure that we exercise all those options, because, as I have said in the chamber before, to do otherwise would risk catastrophic outcomes in relation to this particular engagement.
Deputy Leader of the Nationals
Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (14:25): My question is to the Minister for Regional Development, Senator Nash. Why has the minister decided not to step aside from her portfolio responsibilities?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:26): The government has received very strong legal advice on this issue. On that basis, the Prime Minister has determined that it is appropriate that I stay on as a minister. I would say that I find it extraordinary that when those opposite could come in here and ask questions that people out there across the country, particularly in regional Australia, are interested in they are not taking the opportunity to do so.
Let me tell you, when I'm out in my communities, when I'm out in regional Australia, what people are talking to me about is not section 44; they're talking about jobs, about whether or not their grandchildren are going to be able to get jobs, about energy prices, about the cost of living, about whether or not they can get in to see a doctor, about whether or not they feel safe, about whether or not they think that the circumstances for them in their homes provide safety, about national security. They're talking about the things the government's done, like delivering the inland rail. It took this coalition government to deliver the inland rail—$8 billion. They're saying, 'Thankyou very much' to the coalition government for the $500 million we're seeing going out for regional development. They're saying, 'Thankyou very much' to the coalition government for fixing competition law and getting the effects test in place. And they're saying thankyou to the coalition for fixing country-of-origin labelling. They are particularly saying thankyou to the coalition government for taking the lead on the issue of energy so ably spoken about by Senator Birmingham just previously, because that's what's important to the Australian people. They're not talking about section 44; they're talking about all of those issues, and Labor is showing complete disrespect for the Australian people, because they simply don't understand. (Time expired)
The PRESIDENT: Senator McAllister, a supplementary question?
Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (14:28): Has the minister sought advice about varying ministerial decision-making processes in order to avoid the risk of their being challenged while her eligibility as a senator is being resolved by the High Court?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:29): As the senator is well aware, this is a matter that is before the High Court at the moment, and those processes will run their course.
The PRESIDENT: Senator Farrell, a point of order?
Senator Farrell: There was a very direct question to the minister. On previous occasions, Mr President, you have asked us to be direct, and we were. We've asked the minister a direct question about the variation of ministerial decision-making processes while this matter is being considered by the High Court. Can you please direct the minister to answer the question?
The PRESIDENT: I can't direct the minister, but I will remind the minister of the question that was asked.
Senator NASH: I can indicate, even though it was only a few seconds before those opposite stood to their feet, that the proper processes have been followed and that all of my decisions that I make as a minister were considered appropriate.
The PRESIDENT: Senator McAllister, a final supplementary question?
Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (14:30): I note that the minister has failed to answer my question about whether or not she has sought advice about ministerial decision-making processes during the period when her eligibility is being resolved. I ask again: has she sought advice and, if not, on what basis can she assure us that her decisions will be valid?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:30): Those opposite would be well aware that, as I've indicated before, this is a process that is now before the High Court. I have been—
The PRESIDENT: Point of order, Senator Wong?
Senator Wong: The point of order is on direct relevance. The issue of eligibility is before the High Court. The issue of the validity of ministerial decision-making is not a matter that is being referred to the High Court. The minister has been asked a direct question on a number of occasions. The question is whether advice has been sought in relation to variation of ministerial decision-making processes. She ought to answer that question; she continues to avoid it.
The PRESIDENT: I will remind the minister of the question that has been asked.
Senator NASH: I did indicate to those opposite that the proper processes had been followed. If they would allow me to stand on my feet for more than a few seconds, perhaps I could elaborate on that for them, although it was indicated in the previous answer that I gave that advice has been sought and it is solid. I have indicated to the chamber that the decisions that I as a minister have made have been well considered and appropriate, and they will continue to be.
Indigenous Affairs
Senator ROBERTS (Queensland) (14:32): As a servant to the people of Queensland and Australia, including all Cape York communities, my question is to Senator Scullion. I have just come back from a nine-day road visit to the cape, visiting all communities except Aurukun, where a planned visit was postponed due to sorry business after two deaths in the community. I listened to people across the cape and learned much about what is lacking in the area and I felt the enormous commitment locals of all races have together to taking opportunities for regional development.
Senator Scullion, as Minister for Indigenous Affairs, are you aware that many traditional owners or custodians across the cape feel left behind by the Indigenous Affairs hierarchy—that is, the Commonwealth funded and state funded agencies and bodies? Are you aware that people are crying out for locally driven solutions to social and economic challenges because real, practical outcomes are not possible under current programs, as shown in the appalling results in the latest Closing the gap report and in the lack of practical resources for seizing community opportunities?
Senator SCULLION (Northern Territory—Minister for Indigenous Affairs and Leader of The Nationals in the Senate) (14:32): I thank the senator for his question and his interest in this matter. It was good of him to actually visit remote areas of Australia. I think it was last week that I met and spoke to representatives of every single traditional owner group on the cape. They met at Djarragun, not far from Cairns, and their particular matter was about bringing together a new governance arrangement for the entire cape so the 13 prescribed body corporates would be completely represented. They didn't do that only because of governance arrangements; they also did it because they believe it gives them self-government, if you like, and a way that they can make decisions across the board that they haven't been able to make before.
You may not be aware, Senator Roberts, but there has recently been a native title claim over the cape that basically fills in the gaps—all 13 prescribed body corporates fill that area. There was clearly a decision, I'm happy to report, that they will now be moving towards having a regional council, instead of the Land Council, that represents all those traditional owner interests across the cape. I have to say that I have rarely been as excited as about the proposal that was put to the government. It's not a matter for me; they were just simply informing me of the things that they intend to do. So, the Indigenous people of the cape, the Aboriginal people of the cape themselves—and there were some people from Torres Strait there, as well—have decided on regional governance that is without precedent since Federation. It is going to be able to utilise the synergies; it is going to be able to take in the local government bodies—everyone was there. I can assure you that, in terms of empowerment in the cape, they cannot be in any safer hands—the safest are theirs.
The PRESIDENT: Senator Roberts, a supplementary question?
Senator ROBERTS (Queensland) (14:35): Minister, as you said you've just returned from Cairns, where you met with Noel Pearson and members of the Cape York Land Council at the same time I was on the ground in the cape. Are you aware that many traditional owners or custodians of the cape are feeling their native title interests are not being adequately represented by their regional land council, and would you be interested in discussing this further to ensure funds and resources are getting to everyday people across the cape?
Senator SCULLION (Northern Territory—Minister for Indigenous Affairs and Leader of The Nationals in the Senate) (14:35): Just a correction: I didn't meet with Noel Pearson when I was in Cairns. I met with the representatives of 13 prescribed body corporates, which are the traditional owner groups of every element of the cape. There are always going to be groups in the fringe that don't agree necessarily. Let's face it, if we in this place had to get 100 per cent, I don't think we'd ever get a parliament together. Just like in any organisation there are dissenters. I meet with those dissenters regularly, but, certainly, if there are some people I haven't already met with whom you particularly want me to meet with, I would be delighted to do so. But I don't think it's reasonable to say that the funds that are being provided and the advice that's being provided, either by the Cape York Land Council or by the 13 PBCs, doesn't represent the people of the cape.
The PRESIDENT: Senator Roberts, a final supplementary question?
Senator ROBERTS (Queensland) (14:36): Are you aware, Minister, that several traditional owners or custodians of parts of Cape York have written to their land council requesting to be excluded from the current Cape York United Number 1 claim and have written to the government to request funding to pursue their native title interests, independent of their land council, which is something that's technically afforded to them? They have had no response from your department, nor from the Attorney-General's Department nor from the Cape York Land Council. Why not?
Senator SCULLION (Northern Territory—Minister for Indigenous Affairs and Leader of The Nationals in the Senate) (14:37): This is a matter primarily for the Cape York Land Council. I am aware that a letter has been sent to the Attorney, and I understand my department has received a copy of that. These are matters that are usually determined by the native title tribunal. As I said, it is not uncommon for a few people to disagree—remember, I spoke to 300 traditional owners who represent the cape. This matter, I know, is a bit of a focus for those people who are outside of that process. I am not sure where we're up to with either the Attorney-General's Department or my department, but, in regard to my department, on notice I'll attempt to provide answers to the senator on the matters in that letter.
Workplace Relations
Senator REYNOLDS (Western Australia) (14:37): My question is to the Minister for Employment, Senator Cash. Is the minister aware of any recent reports of deals between registered organisations and large companies that actually lower penalty rates for workers?
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (14:38): Unfortunately, Senator Reynolds, I am, but it probably comes as no surprise to you. We all saw reports today that workers at Big W were employed on, lo and behold, an enterprise agreement. But, guess what? It was negotiated by the SDA—a union—and the AWU, the former union of the current Leader of the Opposition, Mr Bill Shorten, and guess what it did? It significantly disadvantaged workers who worked on a Sunday. These workers are receiving $7.74 per hour less than the relevant award rate, and those who work a full Sunday shift—get this—need to work more than 50 hours during the week just to make up for what they've lost on a Sunday as a result of the deal struck for them by the union that was allegedly meant to represent them. Hypocrisy is thy name when it comes to unions negotiating penalty rate deals with big employers.
But at the same time—and this is probably why there is silence on the other side—we have a massive scare campaign being run by those on the other side in relation to the independent Fair Work Commission, set up by those on the other side; the president of the independent Fair Work Commission, appointed by those on the other side; conducting a process in relation to penalty rates, put forward by those on the other side; and making a decision that in a small way benefits small business. Those on the other side—again, dead silence today, colleagues—are very, very quiet when their union mates do deals with big businesses to lower or abolish the penalty rates of low-paid workers in this country. (Time expired)
The PRESIDENT: Senator Reynolds, a supplementary question.
Senator REYNOLDS (Western Australia) (14:40): Can the minister also advise the Senate how these agreements compare to other wage-setting arrangements relating to penalty rates?
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (14:40): Labor and the unions want it both ways. They want to be able to negotiate away penalty rates. In that respect, obviously, can I just remind colleagues that, when Mr Shorten was secretary of the AWU, workers at Clean Event were paid $10 less per hour than they would've been under the award—but, again, I think they were Mr Shorten's brilliant negotiating skills on display there. But those on the other side and unions want to have it both ways. They want to be able to negotiate away penalty rates for those working on a Sunday; however, when the independent Fair Work Commission makes a decision, based on many years of taking evidence, a considered decision under the process put forward by Labor, they have the audacity to stand up and say, 'That is not good enough.' They will always stand for big business and big unions doing deals to, quite frankly, screw employees but they will never stand for small business.
The PRESIDENT: Senator Reynolds, a final supplementary question.
Senator REYNOLDS (Western Australia) (14:41): I thank the minister for her response. In light of her responses, can she also advise the Senate why it's important that such arrangements are subject to parliamentary scrutiny?
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (14:41): We've seen some very important evidence given to the Senate Education and Employment References Committee about the deals that were done between the SDA, the AWU and big employers to undercut penalty rates. The inquiry heard evidence about deals made between the unions and McDonald's, Coles, Woolworths, KFC, Domino's, Hungry Jack's and David Jones, amongst others, that cut penalty rates on Sunday. It's been confirmed that the supposedly higher base rate for the weekday work is not enough to compensate for the loss of pay on a Sunday.
Senator O'Neill: This is a gross misrepresentation of the better off overall test. What a joke! They are among the highest paid retail workers in the world.
Opposition senators interjecting—
Senator CASH: In other words—despite the calls coming from those on the other side—employees who are subjected to deals done by the union and big business are actually worse off under the union that is allegedly meant to represent them.
Deputy Leader of the Nationals
Senator MOORE (Queensland) (14:42): My question is to the Minister for Regional Development, Senator Nash. I refer to the minister's statement to the Senate on 17 August, last sitting week, in which she advised the Senate:
… the PM has indicated to me that he sees no reason for me to stand aside from my portfolio responsibilities.
Can the minister confirm it was the Prime Minister's decision that she should remain a cabinet minister while the question of her eligibility was resolved by the High Court?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:43): I've been very clear that the Prime Minister has asked me to stay on in my capacity as minister.
The PRESIDENT: Senator Moore, a supplementary question.
Senator MOORE (Queensland) (14:43): Thank you, Minister, and we have got that on record. Did the minister then offer to the Prime Minister, after this offer was made to her, to stand aside from her portfolio responsibilities?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:44): I've been very clear in my previous answer. The Prime Minister asked me to stay on. There were no further conversations from that around that issue.
The PRESIDENT: A final supplementary question, Senator Moore.
Senator MOORE (Queensland) (14:44): I didn't try a point of order, Mr President, but I should have. The Deputy Prime Minister has also refused to stand aside from his portfolio responsibilities while the High Court resolves questions about his eligibility under section 44. Did the minister discuss her position with the Deputy Prime Minister before making a decision as to whether she would step aside from her portfolio responsibilities? Again, I ask: did the minister offer to stand aside when the Prime Minister made that statement?
Senator NASH (New South Wales—Deputy Leader of The Nationals, Minister for Regional Development, Minister for Local Government and Territories and Minister for Regional Communications) (14:44): I can indicate to the chamber that the Prime Minister and the government have received very strong legal advice on these matters.
The PRESIDENT: A point of order, Senator Wong?
Senator Wong: It is on direct relevance. The minister hasn't been asked about the legal advice. She hasn't been asked about the referral. She's been asked about whether or not—
Senator Ian Macdonald: This is not a debate!
The PRESIDENT: Order on my right!
Senator Wong: I beg your pardon!
Senator Ian Macdonald: This is not a debate!
The PRESIDENT: Order on my right! Senator Macdonald!
Opposition senators interjecting—
The PRESIDENT: Order on my left, as well! Point of order, Senator Macdonald?
Senator Ian Macdonald: Mr President, you continue to allow senators to make statements and arguments in supposedly raising a point of order. Now, this senator is clearly out of order in raising an argument when she should be raising a point of order, and I ask you to bring her to account.
The PRESIDENT: There is no point of order. I call Senator Wong.
Senator Wong: The question relates only to a single issue, and that is whether or not the minister discussed her position with the Deputy Prime Minister before making a decision as to whether she would step aside. I ask her to be directly relevant.
The PRESIDENT: Senator Wong, I will ask the minister, and remind her of the question. But I just would make the observation that this is, I think, the third or fourth occasion now that the minister has been interrupted only a matter of seconds into her answer, and I think that has been a little bit unfair to the minister. But I will remind the minister of the question.
Senator NASH: I have a range of discussions with the Deputy Prime Minister on a number of matters. In relation, directly, to the question, the government has very strong legal advice on this matter. The Prime Minister has asked both the Deputy Prime Minister and me to remain in our ministerial roles, and we will continue to do that.
National Innovation and Science Agenda
Senator HUME (Victoria) (14:46): My question is to the Minister for Industry, Innovation and Science, Senator Sinodinos. Can the minister apprise the Senate of how the Turnbull government is helping to position Australia at the forefront of quantum computing, and to seize the opportunities and jobs that quantum computing can bring?
Senator SINODINOS (New South Wales—Minister for Industry, Innovation and Science) (14:46): The Australian government is leading the global pack in the development and commercialisation of groundbreaking quantum computing technology in Australia. On 23 August, I was delighted to launch a new $83 million Australian quantum computing company, called Silicon Quantum Computing. As part of our National Innovation and Science Agenda we as a government are investing over $25 million over five years in this company, in partnership with the University of New South Wales, Telstra and the Commonwealth Bank. We anticipate that the new company will catalyse the development of silicon quantum computing technology and a related innovation ecosystem right here in Australia. The company aims to be the first in the world to build a functional quantum computer chip using silicon—the first step in building a fully fledged quantum computer.
Quantum computers are expected to exceed the combined power of all the computers currently on earth. They will allow us to solve problems in mere hours that would take digital supercomputers longer than a lifetime to achieve. This will redefine industries across the economy and create vast new job opportunities for Australians. Governments around the world are investing vast sums of money in quantum technologies and platforms, and I'm pleased to say that, by backing Silicon Quantum Computing, not only are we positioning Australia as a strong competitor in the global quantum computing race; we're setting up our country to win it, bringing us unparalleled new job opportunities and growth.
The PRESIDENT: Senator Hume, a supplementary question.
Senator HUME (Victoria) (14:48): Can the minister also outline how the establishment of the Silicon Quantum Computing company demonstrates the Turnbull government's commitment to promoting collaboration between researchers, industry and government?
Senator SINODINOS (New South Wales—Minister for Industry, Innovation and Science) (14:48): I forgot to thank the honourable member before for her question and her interest in all of this. The Silicon Quantum Computing company is a great example of government coming together with businesses and researchers to build a future industry for our country. In addition to our investment of $25 million, the University of New South Wales is contributing a further $25 million, with the Commonwealth Bank and Telstra providing $10 million each. The New South Wales state government recently pledged $8.7 million to the company.
At the centre of the National Innovation and Science Agenda is the development of a collaborative ecosystem in Australia, bringing together research, ideas and entrepreneurship to create Australian jobs. When I became minister, I said I wanted to make collaboration a hallmark of my efforts in the portfolio. The establishment of the Silicon Quantum Computing company is yet another example of our government delivering on that commitment.
The PRESIDENT: Senator Hume, a final supplementary question.
Senator HUME (Victoria) (14:49): I thank the minister for his very encouraging answer. How does the Turnbull government's investment in quantum computing complement the other work that has already been completed as part of the National Innovation and Science Agenda?
Senator SINODINOS (New South Wales—Minister for Industry, Innovation and Science) (14:49): In addition to our investment in quantum computing, the Turnbull government has substantially completed the implementation of our National Innovation and Science Agenda. We've established new tax incentives for early-stage investors. We've changed the rules surrounding venture capital limited partnership. We've launched the $200 million CSIRO Innovation Fund to support new spin-off companies from Australian research institutions. We've established the $500 million Biomedical Translation Fund to commercialise medical discoveries. We've launched the Cyber Security Growth Network to help our businesses take advantage of a growing international market. We've set up a digital marketplace to make it easier for small to medium enterprise to compete for Australian government IT contracts. We're supporting Australians, particularly schoolchildren, to develop the skills they need for the jobs of the future, targeting digital literacy and encouraging participation in science, technology, engineering and maths. And there's more to come.
Australian Constitution
Senator SIEWERT (Western Australia—Australian Greens Whip) (14:51): My question is to the minister representing the Prime Minister, Senator Brandis. The Referendum Council delivered its first final report to the Prime Minister and the Leader of the Opposition on 30 June. The report encompassed the outcomes of 12 regional dialogues, and the constitutional convention of over 250 Aboriginal and Torres Strait Islander leaders, held at the foot of Uluru. The outcome of the convention was the Uluru Statement from the Heart, which calls for the establishment of a first nations voice enshrined in the Constitution and seeks a makarrata commission to supervise the process of agreement making between governments and first nations and truth telling about our history. When is the government going to formally respond to the final report of the Referendum Council? And does the government have a timetable for progressing constitutional amendment?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:51): Thank you very much, Senator Siewert. That's a very important question that you ask. As you know, the Prime Minister and the Leader of the Opposition have now received the final report of the Referendum Council, which the government is carefully considering. We intend to work with the parliament towards shaping a proposal that is most likely to succeed at a referendum. The government is committed, in principle, to the constitutional recognition of Aboriginal and Torres Strait Islander peoples, but we are aware—and I don't think this is controversial—that a bipartisan approach is crucial for success. Changing Australia's Constitution would allow us to acknowledge the integral place of Aboriginal and Torres Strait Islander peoples in the life of this nation. A successful referendum would be a significant and enduring act of reconciliation.
You asked me about the next steps. As I said, the report is currently being considered by both the Prime Minister and the Leader of the Opposition. Of course, there will be a range of views on the best way to proceed, but what is important now is for parliament to consider these matters and agree on a way forward. History teaches us that a bipartisan approach is needed for referendums to be successful. The government's priority will be to work with the opposition and the crossbench to identify that proposal which has the greatest chance of success. Both the Prime Minister and the Leader of the Opposition have stated that any proposal for constitutional change must reflect the wishes of Aboriginal and Torres Strait Islander peoples, be achievable and have near-universal support to progress to a referendum. In taking that view, they reflect the views offered some time ago by the expert panel.
The Referendum Council undertook a six-month consultation process, as you know, comprising first nations, regional dialogues, public submissions and digital consultations. (Time expired)
The PRESIDENT: Senator Siewert, a supplementary question.
Senator SIEWERT ( Western Australia — Australian Greens Whip ) ( 14:54 ): I thank the minister for his answer, but I notice he didn't answer the actual question, and that was: when is the government going to respond? Does the government support the objectives of the Uluru statement—specifically, the establishment of a first nations voice in the Constitution and the establishment of a makarrata commission?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:54): The development of treaties or agreements and constitutional recognition are not incompatible processes. Both can be steps towards recognising Indigenous peoples and towards recognition. As you know, and as you observe in your supplementary question, the Uluru convention did propose a makarrata commission to facilitate agreement making between governments and first-nations people. But this is a proposal that obviously has very, very serious implications that need to be thought through very carefully. The government is aware of the work that's happening in some states and territories on this issue as well, and we are considering the matter, as I said in answer to your principal question. It is important that we get this right, and getting it right and progressing to a successful and unifying conclusion does mean carefully considering the report and bringing as many people as possible with us.
The PRESIDENT: Senator Siewert, a final supplementary question.
Senator SIEWERT (Western Australia—Australian Greens Whip) (14:55): Does the government acknowledge that the proposal for a 'voice to parliament' is the only proposal that meets one of the Referendum Council's four principles—namely, that the council's recommendations must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:55): Senator Siewert, I think it's unwise to be too prescriptive about that matter, as a matter of fact, and that is why I emphasise that the government is considering the matter very carefully. What we have in mind is bringing this process to a successful conclusion. In the course of quite a long process now, which has included, among other things, the expert panel's report, a parliamentary select committee over two parliaments and the Referendum Council, a variety of different views and approaches have been explored. Ultimately, it is for the parliament to decide which way forward is the best. As I said in answer to your primary question, I see no practical possibility of that being done unless there is bipartisanship, which is why the government has been working with the opposition, whose contribution we acknowledge, and wants to work with the crossbench as well to enable a final and acceptable model to be adopted.
Attorney-General
Senator WATT (Queensland) (14:56): My question is also to the Attorney-General, Senator Brandis. In an article in today's The Daily Telegraph entitled 'Sex pest law view isolates Brandis', it is reported that three ministers have leaked against the Attorney-General, revealing that he argued against laws banning paedophiles from travelling overseas. Does the Attorney-General wish to correct the record?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:57): I'm aware of a report. I don't discuss, either privately or publicly, what happens in cabinet.
The PRESIDENT: Senator Watt, a supplementary question.
Senator WATT (Queensland) (14:57): In response to the leaks, a spokesman for the Attorney-General said, 'It is not appropriate or lawful to comment on cabinet discussions.' Which of the Attorney-General's three cabinet colleagues are willing to break the law to leak against him?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:57): Senator Watt, your question contains a premise that I don't accept, nor do I accept the report, which is full of inaccuracies.
The PRESIDENT: Senator Watt, a final supplementary question.
Senator WATT (Queensland) (14:58): You could, of course, correct those inaccuracies. I refer to the Attorney-General, who has previously said, 'Good governments do not suffer cabinet leaks.' Given the most recent cabinet leak, will the Attorney-General admit that the Turnbull government is a bad government?
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:58): Senator Watt, if I said that in the past, I'm sure it was true. Senator Watt, I adhere to everything that I've said in the past on this and other matters, but, as I pointed out to you in answer to your first supplementary question, the premise of your question is based on an article which, itself, is full of inaccuracies.
Education
Senator PATERSON (Victoria) (14:58): My question is to the Minister for Education and Training, Senator Birmingham. Will the minister update the Senate on the Turnbull government's trial of an innovative learning app to help boost curiosity and skills in science, technology, engineering and maths among preschoolers?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (14:59): Mr President, we know, and I think all senators in this place hopefully appreciate, that some of the fastest growing job opportunities in Australia require STEM skills across the science, technology, engineering and mathematics disciplines. That was certainly recognised in the Turnbull government's National Innovation and Science Agenda. That's why yesterday I was pleased to announce, as another plank of that agenda being rolled out, that there are some 100 preschools across Australia that will trial a new $6 million program that the Turnbull government is supporting to introduce some of our youngest learners to science, technology, engineering and mathematics learnings. This new program will help those children to explore new ideas in STEM that will in turn boost their own personal literacy and numeracy capabilities. It's called ELSA, and it ensures that early learning for young Australians in science is available. It is being kicked off as part of National Literacy and Numeracy Week here in 2017.
As the pilot rolls out to 100 schools that have been chosen to undertake a trial next year in 2018, I look forward to seeing how those preschools embrace the opportunity to develop the numeracy skills and scientific curiosity that will build school readiness in our youngest learners. With that school readiness, it will also hopefully inspire them to be able to go further in their learning of science and technology disciplines. Preschools may not have specialist science or maths teachers, but the resource that is being deployed in this pilot is one that can be accessed appropriately by all early childhood educators. It will bring fun, play-based learning to those preschoolers by introducing them, at the right level, to the science disciplines and maths—developing their knowledge, enhancing their interest and curiosity, and ensuring that, in future, we have school-ready preschoolers who go to school with a strong interest to pursue those STEM discipline well into their future.
The PRESIDENT: Senator Paterson, a supplementary question?
Senator PATERSON (Victoria) (15:01): Will the minister apprise the Senate of the progress of another innovative early learning program, Early Learning Languages Australia?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (15:01): The ELSA program is built on and expanding on the success of another program, ELLA—Early Learning Languages Australia—which helps to engage preschoolers in languages other than English. We have now seen some 1,800 preschools across Australia choose to engage in the ELLA program, helping more than 60,000 young Australian children to access different languages. Assessment by Deloitte Access Economics and Swinburne University of Technology shows that ELLA is delivering outstanding results already. Around two-thirds of parents and guardians have observed their child using parts of the target language in their home environment. They are taking their learnings of different languages from preschool home with them. This is lifting the expectation and ambition of parents to be able to access and engage their children to continue to learn other languages in future, and 87 per cent of educators expect children to continue with their interest in languages as a result of this exposure. (Time expired)
The PRESIDENT: Senator Paterson, a final supplementary question?
Senator PATERSON (Victoria) (15:02): Can the minister inform the Senate how the government is applying best practice in early learning programs?
Senator BIRMINGHAM (South Australia—Minister for Education and Training) (15:02): I thank the senator for the question. Evidence shows that around 30 per cent of Aboriginal and Torres Strait Islander children under 14 do not speak English well, competently or at all. So as part of this year's budget, we also announced an expansion of this model of learning to particularly focus on early language learning for Indigenous children. This ELLIC trial will aim to improve English literacy outcomes for ATSI children for whom English is a second or subsequent language. It will build on the success of ELLA and will provide an opportunity for children in remote Indigenous communities in particular to be exposed in different ways to the English language with the support in their Indigenous languages. Around 20 preschools across Australia will trial ELLIC, and they will have the opportunity for it to be built in native Indigenous languages, providing that exposure of English language learning to help children who otherwise struggle when they get into the school years due to a lack of English in the early years of their lives.
Senator Brandis: Mr President, I ask that further questions be placed on the Notice Paper.
QUESTIONS WITHOUT NOTICE: ADDITIONAL ANSWERS
National Security
Senator PAYNE (New South Wales—Minister for Defence) (15:03): I have a very minor correction to make following an answer I gave earlier today. I believe that in the answer to my second supplementary question from Senator Fawcett I indicated I was travelling from North Korea to the Philippines. I intended to say South Korea to the Philippines.
QUESTIONS WITHOUT NOTICE: TAKE NOTE OF ANSWERS
Deputy Leader of the Nationals
Senator MOORE (Queensland) (15:04): I move:
That the Senate take note of the answers given by the Minister for Regional Development (Senator Nash) to questions without notice asked by Senators Polley, McAllister and Moore today relating to her status as a senator and a minister.
When the minister came in at the dying hours of the last sitting session and made her statement about the situation around citizenship, she must have been aware that there were going to be questions asked in this place. That would be no surprise to her.
Today, in question time, a number of questions were raised that had nothing to do with the actual issue of citizenship, because that's not our role. Indeed, as the minister quite rightly said, that is now an issue for the High Court. But what we needed to know and what we were asking about was the process that took place around the disclosure of the minister's situation with the Prime Minister and the Deputy Prime Minister and about exactly what would happen, what would be the process into the future, while this issue was referred to the High Court and there was uncertainty.
In her answers, there were two key points to a range of questions put to her, though she wasn't keen to answer any. Of the two key answers that came up, one was that strong legal advice indicated that the minister was able to continue in her position. Indeed, there was nothing to be seen here; there were no questions to be asked. I think that was the response we got. We have a long history in this place of being told by governments that they have strong legal advice. There is no history of that strong legal advice being tabled, and that would be a really straightforward process. If there is strong legal advice on why a position has been taken and there is interest in that, and I think there is, it is a straightforward position for that legal advice to be tabled. I know that governments of all flavours do not often share legal advice, but there is nothing to say they can't. In this case, as the minister has said clearly, a number of times, to questions today, the government has strong legal advice. What the parliament does not have is that strong legal advice.
The other argument that the minister put forward was that there are lots of other more important things that we should be asking questions about and that the community is just not interested in these issues around citizenship. I disagree. Whilst I know that the issues around the Constitution and constitutional law do not raise amazing passion across all areas of the community—this is a time when I really do miss having Russell Trood in this place, because this was the kind of issue that he would have passion about and would like to discuss; he is not here, but I know he is listening—what the community wants is consistency. This issue has been going on for weeks and weeks. While Senator Nash believes that the community is not particularly interested in these issues around citizenship, the media certainly are. They have been running stories on these issues around the Constitution and the constitutional entitlement of people to be in this place for weeks and weeks on a daily, in fact, in some cases, on an hourly basis. What the community wants to know is how we can get this right. They also expect some consistency in the way that these issues are handled in this place, in their parliament.
We have been asking a range of questions. When there were questions about the citizenship of Minister Canavan, a decision was made that he stand aside. Our questions are about consistency. If questions around citizenship that look at the eligibility of Minister Nash and also the Deputy Prime Minister—questions around their citizenship and their entitlement to be here—are now going to be taken to the High Court, why is it that the strong legal advice for them is different from whatever the strong legal advice was for Minister Canavan, which was very early in this process? We do know that, in other cases, senators have resigned from this place and are no longer with us. I don't know what the strong legal advice was in those cases. I think we have a responsibility as a parliament to have answers to these questions. I think we have a responsibility as a parliament to make sure that the community understands that there are issues being raised, there is a process being followed and there is a consistency in the way that people who are caught up in this process will be treated and will behave in the parliament while we are waiting for the result. (Time expired)
Senator DUNIAM (Tasmania) (15:09): I, too, am rising to take note of the answers given today by Senator Nash to the questions outlined by Senator Moore. Watching question time today and listening to the answers that were provided by the minister, which didn't satisfy the opposition, I think those opposite are all about insider politics, all about the Canberra bubble—and we heard it from Senator Moore just then. I recall that in one of her answers Senator Nash pointed out that if you go down the main street of Burnie in Tasmania or any other regional community people aren't asking one another about what's going on with section 44. Indeed, they're talking about things like power prices and jobs—about whether their kids are going to have a job. That was a point made by Senator Nash, but Senator Moore just then said, well, this section 44 issue is so important because—get this—the papers are running it. That's the test that's applied here for the issues the Australian Labor Party, the opposition, want to pursue in question time—not the issues their constituents raise, not the issues that are actually burning in the minds of people who can't afford to pay their power bills, who are worried about their kids getting jobs and about their futures in the communities in which they live.
I sense, though, that a lot of the answers frustrated the opposition and didn't accord with what they wanted to hear. They wanted that gotcha moment—again, all about getting a headline tomorrow. That's how things operate inside the Canberra bubble. A number of things have already been put on the record, and I refer again to a statement which I know has been pointed to in this debate a number of times by the Attorney and by Senator Nash. Last sitting Thursday Senator Nash clearly outlined quite significantly and in some detail the steps she went to in coming to the conclusion that she did before she informed the Senate of the situation she found herself in. That detail is all there. The following day, 18 August, the Legal and Constitutional Affairs Legislation Committee examined this matter in quite some detail. I note that under questioning from Senator Watt, who isn't here at the moment, even more detail was put on the record about precise times that correspondence on this issue was received and when action was taken, clearly demonstrating exactly why the action was taken when it was—blowing a massive hole in this argument that people were sitting around hoping that no-one would notice and clearly demonstrating that we did things when we needed to based on the advice that we were provided with.
What this demonstrates above all else, though, is that the opposition are out of touch. It's all about trying to score a few political points while they're up here in Canberra, rather than working with government or the crossbenchers on improving legislation. There was not a question on that sort of stuff today. There was a little bit of serious stuff at the beginning, when we were talking about the grave situation our nation faces with regard to the Korean peninsula. But straight after that, any seriousness went out the window, and it was on to this insider political behaviour, which is exceptionally disappointing.
In another question from Senator Moore, she referred to a quote from Senator Nash's statement, trying to assert that she said the Prime Minister had made the decision. But missing from Senate Moore's question was the fact that Senator Nash indicated to the Senate that the Prime Minister's indication was on the basis of the Solicitor-General's advice—a fairly salient fact in how the Prime Minister reached the conclusion that he did and took the action that he did. In terms of tabling legal advice, as far as I am aware, legal advice often has attached to it legal professional privilege. It's one of those things that people don't table; they don't wave it around while things are yet to go before the courts. That is an age-old practice and convention. I'm not sure why it'd be different today, just to suit people's curiosity.
But the other thing we have to think about here is: what about those on the other side, who refuse to provide clear evidence that they are not falling foul of the Constitution, such as the member for Braddon, Ms Justine Keay? I've called, on public record, time and time again for her to produce her documentation. I commend Tasmanian Labor Senator Lisa Singh, who did just that. I don't know why people like Ms Keay, the member for Braddon, can't do the same thing. We've got to apply a consistent standard here. (Time expired)
Senator PRATT (Western Australia) (15:14): I also rise to take note of the answers given by Senator Nash to the questions asked by Senators Moore, McAllister and Polley. In every instance, Senator Nash has failed to be accountable to this place in answering questions. It points to the deep crisis within government and an extraordinary set of double standards that go to the heart of the integrity of this government. Senator Canavan did the right thing and stood aside from his ministerial responsibilities once doubt was cast on his citizenship. It was clearly recognised by him and others that it was an important step to take and the right thing to do. As Professor George Williams, the constitutional expert, said:
The wisest course is for them to refrain from making decisions or to step down pending the outcome of the High Court hearing.
Now, it is all very well for the government to talk about, 'The situation's fine; everything is as normal because we've got legal advice.' But, should Senator Nash continue to exercise her responsibilities, the Australian people deserve accountability and an explanation of the grounds and reasons for her doing so. There have been no reasons given other than the mere fact of legal advice per se; Senator Nash has failed in every instance to provide an explanation to this place. It calls into question whether Senator Nash will need to defer decisions, delay decisions or delegate decisions to other people while doubt is cast over her eligibility to be in this place.
I can only surmise as to some of the reasons why Senator Nash has allowed herself to be used in this way and to set such an appalling double standard not befit of this place. Had Senator Nash done the right thing and stepped aside from her ministerial responsibilities, it would have called into question the decision of our Deputy Prime Minister, Mr Barnaby Joyce, and his failure to also step aside. So, here we have the ministers within the National Party completely in disarray and beset by their own incompetence as a party and their failure to do due diligence when their candidates are nominated for election. It calls into question their competence, and illustrates the hypocrisy of the National Party and the government in allowing these double standards to exist.
Senator Nash may well say that there are other issues that we would like to be discussing as a nation, such as jobs, health and employment, et cetera. Indeed we would and indeed we do. But it is simply not acceptable that we are asked, as a nation, to place trust in a minister who is making decisions on these very things—the things that affect jobs and the things that affect regional development and employment—when those decisions could be called into question in the future because of her potential ineligibility to be a member of this place. The minister has provided no assurance that her ministerial decisions will not be invalidated if her own status as a senator is found to be in breach of section 44. Perhaps Senator Nash is selling out every principle of good governance because she is trying to avoid setting a precedent that would see the Deputy Prime Minister also need to step aside. I can only presume from Senator Nash's answers this afternoon that she is continuing to make decisions and participate in decisions that could be called into question in the future. Her failure to provide answers on these very serious matters to the Senate this afternoon is a serious issue.
Senator SESELJA (Australian Capital Territory—Assistant Minister for Social Services and Multicultural Affairs) (15:19): I don't often disagree with my Liberal colleagues. Senator Duniam talks about the Canberra bubble. I make the point that it is a fly-in fly-out bubble, to the extent that there is one. It is not a result of the hardworking residents of the ACT.
Can I go to the issues that have been raised. Before I go into some detail about Senator Nash and the position she's outlined, which has been widely canvassed, including by the Attorney-General on the record recently in committee, I would say, on my own behalf and on behalf of the government, that when we talk about Minister Nash we are talking about a fine minister, a fine representative of regional Australia and of New South Wales. I think that anyone who has dealings with Minister Nash knows not just that she is a thoroughly competent and hardworking minister and representative but an honest and decent representative. That is something absolutely worth putting on the record, as we have the opposition trying to in some way call that into question with their line of questioning.
Minister Nash has outlined the process she went through on being advised over questions around her citizenship. She has acted absolutely properly and thoroughly, dealt with it on the best advice and put this issue to the High Court in the proper way. It's fair to say that not everyone has taken that approach. We heard from Senator Moore and Senator Pratt just then saying, 'Table the legal advice.' That's fascinating in the context, and it seems almost designed to go after one of their colleagues, Senator Gallagher, who today we heard talking about the fact she had legal advice on her Ecuadorean citizenship. I'm not aware of that legal advice being made public. I'm not aware of it being tabled. So, again, we have the hypocrisy of the Labor Party saying Minister Nash should table her legal advice but there is no need for that kind of transparency from Senator Gallagher in relation to her Ecuadorian citizenship. Senator Gallagher's legal advice may well be very strong—we can only take her word for it, not having seen it—but there is a fair dose of hypocrisy here from Labor senators in calling for the tabling of legal advice when one of their own, who is not subjecting herself to consideration by the High Court, is not putting on the public record the legal advice she relies on to say that she is not a citizen of Ecuador, or indeed tabling it in this place. Senator Gallagher has referred to legal advice but not, I note, to advice from the Ecuadorean embassy. That's obviously a matter for her, but I won't take the hypocrisy from the Labor Party on this issue and say, 'Minister Nash has to table her legal advice, when she is going to be subjected to the High Court's judgement on this issue, but Senator Gallagher does not have to do the same.'
I go that point of hypocrisy when it comes to Bill Shorten. Bill Shorten has been out there on this issue saying—
The DEPUTY PRESIDENT: Senator Seselja, I remind you to refer to people in the other place by their correct title.
Senator SESELJA: Thank you, Deputy President. I do refer to the hypocrisy of the Leader of the Opposition, Bill Shorten, on the issue of disclosure. Bill Shorten has never been one for disclosure. Whether it be secret payments he was getting when he was negotiating workplace deals—donations, at a time when he was negotiating workplace deals, that weren't declared until eight years later—or whether it be Bill Shorten's citizenship documents, he has not been—
Senator Wong: Point of order: the senator may not be aware that Mr Shorten has now tabled his documents in the other place.
The DEPUTY PRESIDENT: It's not a point of order, Senator Wong. Again, Senator Seselja, I believe it's Mr Shorten.
Senator SESELJA: I think I referred to him as the Leader of the Opposition.
The DEPUTY PRESIDENT: Just the once.
Senator SESELJA: Certainly Mr Shorten, or the Leader of the Opposition, has not been big on transparency, so when it comes to the hypocrisy we've heard—they want us to table legal advice but they won't table legal advice; they want it to be one standard for us and another standard for them—I'd say that Minister Nash has outlined the process and has followed good process every step of the way. She has been thorough and transparent and has put herself in the hands of the High Court, as is right and proper in these circumstances, and I endorse the minister's actions right across the board.
Senator KITCHING (Victoria) (15:24): The dual citizen fiasco has reminded me of two instances: one from popular culture and one from history. The first one is the Death Star of Star Wars fame crashing and burning. That is what this government is doing. The emperor is dead, Darth Vader is dying and the Death Star is crashing—that's this government. The second instance is that I was reminded of a speech given by Oliver Cromwell on the dissolution of the Long Parliament in April 1653. It is quite a famous speech and I thought these words applicable today to the instance we have with this government. He said:
Ye are grown intolerably odious to the whole nation; you were deputed here by the people to get grievances redress'd, are yourselves gone! So! Take away that shining bauble there, and lock up the doors.
In the name of God, go!
I will come back to the comments made by Senator Duniam and Senator Nash in relation to the Australian public being not interested at all in whether our parliamentarians and ministers are duly elected, appointed and sworn in, because of course the Australian people are interested in that. They would like to think there is some level of competence in the government.
I want to go to two issues. The first is consistency in approach. As has been raised, Senator Canavan did resign, so what was the advice in relation to why Senator Nash and the Deputy Prime Minister have not resigned their ministerial responsibilities? I, secondly, want to really focus on the breaches of not only section 44 but also section 64 of the Constitution. Just so we are clear, section 44(i) says any person who:
… is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
On dual citizenship, people have referred themselves to the High Court, and that is very good, but what was the advice that was sought and where did it come from? How was the Attorney-General involved in that? Did it come from the Solicitor-General? We are not very clear on that. Senator Seselja says, 'No-one has to proffer their own legal advice if they don't want to.' But, again, I would make the point that the Australian people have the right to know. Given this is such a serious issue and given we may well have a cabinet that is not formally or lawfully appointed, I think that advice should be tendered and made public. I also think that some of this advice is going to become clear when the High Court meets next month.
Senator Nash in her answer referred the Senate to her statement—and what a statement full of holes it is. One could say it was a pithy statement, but that would be painting it in a light it doesn't really deserve. It's about seven paragraphs long, and it doesn't really go into any detail at all. You can find it on fionanash.com.au. It's on the first page. I think most people would agree that it doesn't really go to the questions of such gravitas that are being asked. If Senator Nash did receive advice saying that she should stay on, what was the advice given to Senator Canavan? What was the advice from the Solicitor-General?
What was the advice around section 64? Did the Attorney-General seek advice on section 64? I will read that section into the record. Section 64 is titled 'Ministers of State'. I will go to the particular part headed 'Ministers to sit in Parliament'. It says:
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
Simply put, section 64 refers to the appointment of ministers and requires that they be members of parliament. This section underlines the principle of responsible government. Ministers are elected representatives and are accountable to the parliament. (Time expired)
Question agreed to.
North Korea
Senator DI NATALE (Victoria—Leader of the Australian Greens) (15:30): I move:
That the Senate take note of the answer given by the Minister for Defence (Senator Payne) to a question without notice asked by Senator Di Natale today relating to North Korea.
It is remarkable that we have had so much time dominated in this chamber by questions of eligibility of senators to sit in the Senate when, in fact, what we are witnessing across the other side of the world are tensions that could lead us to a nuclear conflict. Let's be very clear about what's going on here. We have Donald Trump, an unhinged and dangerous president, whose rhetoric has led us to the point of North Korea's sixth nuclear weapons test, with no sign whatsoever they will back down. Kim Jong-un was never going to back down in the face of Donald Trump's bluster. All of his talk of 'fire and fury', his notions that the time for talk was over, that he wouldn't rule out detonating a nuclear weapon—all that's done is serve to goad North Korea. We have one dangerous and unhinged world leader goading and provoking another more unhinged and even more dangerous world leader. I've said it before: Donald Trump is hot-headed; he is a loose-fingered leader; he is a man who has such little self-control that he could easily start a conflict—a war, indeed—with a tweet. We are seeing the world edging closer and closer to a needless and devastating war.
Donald Trump has backed himself into a corner, and because of the actions of the Liberal Party prime minister we are right there with him. Over the weekend Donald Trump threatened a massive military response, but North Korea is not backing down. We know that North Korea regularly threatens the US and its allies, so what is the strategy here? What is the end game? Where is it going? The US either has to respond militarily or has to back down. They are the only alternatives, and here we have the prime minister of this country deciding that either of those paths is sensible. Clearly, they're not.
What Australia must now do is force Donald Trump to take his medicine, to back down and call for dialogue—not back him in. Where we have other world leaders urging restraint, urging caution and calling for diplomatic solutions, we have Malcolm Turnbull offering uncritical support for this mad man's strategy. We have pre-emptively committed our troops to whatever war with North Korea. We have written another blank cheque. We are participating in the highly provocative Ulchi-Freedom Guardian war games with the US in South Korea. Let's be clear about what that is. It is a massive 10-day military exercise with tens of thousands of troops and explosions loud enough to be heard north of the border. It's a clear signal to North Korea, but not one that they are listening to.
Because of the actions of the Prime Minister, the Turnbull government has made itself part of the problem. It is now so obvious to anybody who is paying attention that Donald Trump is a deeply dangerous ally who is taking us headlong into a conflict. We need to recognise that people in this chamber had been saying this before he was elected. Now that he has the capacity to be able to inflict carnage on the world's population, we are seeing a retreat from those voices who previously expressed concern about the leadership of Donald Trump.
It is high time for the coalition government, and indeed the ALP, to begin acting in the interests of all Australians, not to mention the interests of people on the Korean peninsula. The US alliance is making us less safe. Let us a acknowledge that cold, hard reality: it is making us less safe. It's time to rip up the US alliance and start again—to renegotiate the terms of our relationship with the US. If we did that right now, we might actually give Trump pause for thought and we would certainly make Australia and, indeed, the world a much safer place.
Question agreed to.
CONDOLENCES
Everingham, Hon. Dr Douglas Nixon
The PRESIDENT (15:35): It is with deep regret that I inform the Senate of the death on 24 August this year of the Hon. Dr Douglas Nixon Everingham, a former minister and member of the House of Representatives for the division of Capricornia, Queensland, from 1967 until 1974 and again from 1977 until 1984.
Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (15:35): by leave—I move:
That the Senate records its deep sorrow at the death on, 24 August 2017, of the honourable Dr Douglas Nixon Everingham, former Minister for Health and Member for Capricornia, places on record its gratitude for his service to the Parliament and the nation, and tenders its profound sympathy to his family in their bereavement.
Douglas Everingham, or Doug as he was always known, was born on 25 June 1923 at Wauchope on the North Coast of New South Wales. As a young boy, Doug showed early signs of academic promise. He won a scholarship to Fort Street High School in Sydney and later to The University of Sydney, where he studied medicine. It was during his university days that a fellow student, one Lionel Murphy, first sparked Doug's interest in left-wing politics, encouraging the young medical student to join the Labor Party. This was a marked departure from the politics of his conservative Christian upbringing, and helped to sow the earliest seeds for what would be a noteworthy career in federal politics.
Doug Everingham graduated as a doctor in 1946 and moved to Queensland to complete his internship at Rockhampton Hospital. It was there that he met Beverley Withers, a young nurse whom he married in 1948 and with whom he would have two daughters and a son. For Doug, it was the beginning of a life-long affinity for the communities of Central and North Queensland. Although his early medical career took him back to Sydney, by 1956 he had returned with Beverley to his wife's home town and had established a family medical practice.
Doug Everingham's first foray into politics came in 1963 when he ran, unsuccessfully, as the ALP candidate for the safe Country Party seat of Dawson. His opportunity arose four years later following the death of his friend George Gray, the member for the neighbouring seat Capricornia. Doug Everingham nominated for Labor Party preselection to stand as the Labor candidate at the by-election. From a field of eight preselection contenders, he emerged as the victor.
The Capricornia by-election on 30 September 1967 was a significant by-election at its time. Following the Corio by-election that had occurred three months earlier, it sealed the control over the Labor Party of the recently elected federal leader Gough Whitlam, who would become the party's 11th leader by a close ballot on 9 February of that year, following the landslide election victory of the Holt government in November 1966. The effect of the Corio and then the Capricornia by-elections was to consolidate Whitlam's control of the Labor Party and his vision of a future direction from the days when the party was led by Arthur Calwell.
The by-election itself did not pass without controversy. Doug Everingham was a keen polemicist and an outspoken advocate of left-wing causes. His letters to newspapers were as prolific as they were provocative, much to the consternation of the leadership of the Labor Party. We all know colleagues in our own political parties whose exuberant zeal sometimes causes us concern. There was, perhaps, good reason why the Labor Party were concerned at the tone of some of Dr Everingham's correspondence. During the course of the campaign it emerged that in April of 1967 he had penned an article for the Communist Party of Australia's magazine, Discussion, exploring the common ground shared by communists and humanists. In the midst of the Cold War, when public debate over Australia's involvement in Vietnam was beginning to intensify—but, as I say, only less than a year after the Holt government was re-elected with a resounding majority—this evidence of his supposed pro-communist inclinations, notwithstanding that they were concealed in the blandly named journal Discussion, was seized upon by both the Liberal Party and the DLP.
Gough Whitlam's former speechwriter, Graham Freudenberg, in his famous biography of Whitlam, A Certain Grandeur, recalled his account of the Capricornia by-election. In his recollection, Doug Everingham's choice at the preselection was against the express wishes of Mr Whitlam, who had personally intervened unsuccessfully on behalf of another contender. But in the face of sustained criticism Doug Everingham remained unrepentant: 'I write to all sorts of way-out journals,' he reflected afterwards—'or at least I did. If I had known what was going to be said about the article during the Capricornia by-election, I would have been more prudent and put a pen name, like Mr McMahon, on it.'
In spite of the controversy that this episode aroused, Doug Everingham won the by-election convincingly, with a swing of more than one per cent to the Labor Party, defeating the Liberal Party's Frank Rudd, who happened to be his brother-in-law. As Freudenberg writes, 'What the southern experts, both Liberal and Labor, did not know was that Everingham, who had treated hundreds of patients in the Rockhampton area free of charge, was widely respected for his integrity and even loved for his humanity,' so that when the federal Treasurer, William McMahon, influenced by poor advice and worse champagne, spoke at a Liberal Party in Rockhampton of the dangers of 'atheistic communism'—which was taken to be a thinly veiled swipe at Dr Everingham's atheism—both the Anglican and the Catholic bishop issued statements defending Everingham as their friend and 'a better Christian than many claiming the name'.
After his successful election in September 1967, in his maiden speech and in many speeches thereafter, Doug Everingham spoke passionately about the need for affordable health care and of the then novel policy of complete health insurance for all Australians. He also spoke extensively in condemnation of Australia's involvement in Indochina, partly in tribute to his friend and predecessor George Grey, who during his time as the member for Capricornia had been particularly outspoken on matters concerning foreign policy. Doug Everingham was re-elected as the member for Capricornia at the general elections of 1969, 1972 and 1974. With Labor's return to power at the 1972 federal election, he was appointed Minister for Health in the Whitlam government. His three years in that role saw among the most significant reforms to health policy in Australian history. As well as making a very significant contribution to the implementation of Medibank and the widespread expansion of Australia's public hospital system, Dr Everingham was particularly proud of the central role he played in the establishment of the Australian School Dental Scheme, which he described as potentially one of the most important achievements in public health in Australia. Tragically, Doug's career of significant achievement was punctuated by a personal tragedy with the death of his son Stephen in a motor accident outside Brisbane in 1972.
Although Doug Everingham's parliamentary service is understandably best remembered for his accomplishments in the health portfolio, his political interests spanned an extensive and at times eccentric array of issues. A humanist and a pacifist, he was a committed proponent of one-world governance and remained long after his retirement from parliamentary life one of Australia's highest profile critics of water fluorination. He also gained fame as an ardent campaigner for radical spelling reform, on one occasions opining in the Courier Mail that he thought there to be no good reason known to dictionary makers why the spelling norms of Dr Johnson or Will Paxton have been clamped, as if forever, on our living language.
In other policy arenas, posterity has proved kinder to Doug Everingham's lifetime of advocacy than in relation to his critique of fluorination. A vocal critic of smoking, he led the push within the Whitlam cabinet to curtail tobacco and alcohol advertising and was known during his time in parliament to affix anti-smoking stickers to the cigarette vending machines which, in those more indulgent times, populated many a corridor around Parliament House.
He lost his seat to the briefly named National Country Party at the double dissolution election of 1975, which saw the end of the Whitlam government, but he subsequently wrested back control of Capricornia two years later, at the 1977 election. He retained the seat until his retirement from elected office in 1984. During those years in opposition, Doug Everingham served as opposition spokesman on Aboriginal affairs in northern Australia from December 1977 until March 1980 and as opposition spokesman on the Australian Capital Territory and veterans' affairs from March 1980 to November 1980. He then left the front bench. In 1982, he served as parliamentary advisor to the United Nations General Assembly.
A person of immense character and commitment and a pleasing tincture of eccentricity, Doug Everingham was truly a man ahead of his time. His progressive ideals helped to build so many parts of modern Australia, most particularly its universal healthcare system, to which Australians of all political persuasions today subscribe. His achievements in public health policy, and health insurance in particular, will stand as his monuments. On behalf of the government, I offer our gratitude for his service and our condolences to his family.
Senator WONG (South Australia—Leader of the Opposition in the Senate) (15:46): I rise on behalf of the Labor opposition to acknowledge the passing of former minister and member of the House of Representatives, the Hon. Dr Douglas Nixon Everingham, who passed away last week. As Mr Shorten said, today the Labor family salutes the life of a faithful son. I convey our condolences to the family and friends of Dr Everingham.
In the condolence for Rex Paterson last year, I described him as a quintessential member of a great Labor generation. Doug Everingham is another one who fits this description. Like his fellow Queensland representatives, he was one of those who paved the way for the election of the Whitlam government and brought to it expertise as well as firm ideological views. He would serve in Whitlam's cabinet for the life of that government, returning after a brief hiatus to continue to serve in the opposition that followed as well. Like those with whom he served, his achievements and legacy stand as a monument to the fundamental progressive change implemented by that government for the benefit of the Australian nation.
Doug Everingham was not always a Labor man. He disclosed in his first speech that it was the less belligerent approach to class differences and the insanity of extremism on the Right of politics that led to him changing his voting from the Liberal Party to the Labor Party at university. Born in New South Wales in 1923, he completed his medical qualifications in that state but would eventually permanently settle in Queensland with his family. As a medical professional, he was able to bring the skills and experience gained as a family doctor and in public and private hospitals to the parliament and then later to the ministry. He joined the Labor Party in 1959. As the Leader of the Government in the Senate has said, he was elected as the member for Capricornia at a hard-fought by-election in 1967, following the death of the incumbent Labor member. In that process, he became one of a new guard of parliamentarians marshalling behind the new Labor leader, Gough Whitlam. I note that the by-election was won against one of his in-laws, his wife's sister's husband.
Hailing from Rockhampton, he became another voice for working people in the industrial cities of Central Queensland. It is no coincidence that Rex Paterson, from the neighbouring seat of Dawson, who was elected in a by-election close to the time that Doug Everingham was elected, was one of those who led him into the House of Representatives for the first time. Doug Everingham would go on to serve as the member for Capricornia until 1984, with the exception of the period between 1975 and 1977.
In his first speech, he decried the approach to government of the reigning Liberal and Country Party coalition. He lamented:
The Government professes sympathy with the plight of the poor while spending lavishly in less urgent directions.
He also made the case vociferously against war in Vietnam and made arguments about a better way forward for Australian foreign policy during the Cold War era. Consistent with someone who placed different ideas on the table, his views on these and other matters were not always without controversy. He was also a prolific writer to numerous periodicals and journals both prior to his election and afterwards. As Senator Brandis has said, one of the causes for which he advocated included an ongoing campaign for simplified spelling.
In addition to his role as Minister for Health from 1972 to 1975, Doug Everingham also served in the opposition's shadow ministry after he returned to the House of Representatives in 1977. His portfolio of responsibilities included Aboriginal affairs and northern Australia, the Australian Capital Territory, and Veterans' Affairs. But it was as Minister for Health that Doug Everingham made his most substantial and lasting contribution on the Australian political landscape. It is testament to his foresight and vision that many of the groundbreaking reforms he initiated and championed remain pillars of Australia's health policy. For example, with the Minister for the Media, Doug McClelland, he introduced a phased ban on the advertising of cigarettes and tobacco on television and radio. This was a landmark tobacco control initiative and paved the way for other initiatives in the future, such as funding for anti-tobacco advertising, the ban on advertising tobacco products at sporting events and plain packaging for cigarettes. These are matters on which Labor has continued to lead. It is often the case that far-sighted reforms such as these need principled sponsors and staunch defenders, and Doug Everingham was one of those. There are other policy positions which he advocated which came to be realised well beyond his time in office. For example, we now know from released Whitlam cabinet documents that he was an advocate for the deinstitutionalisation of mental health many years before this became accepted as mainstream policy.
The signature health and social policy reform undertaken by the Whitlam government was Medibank. Doug Everingham first spoke of the benefits of what was widely derided as socialised medicine in his very first speech. He pointed out that governments of both political situations were happy to support free hospitalisation in his home state of Queensland, but, in Canberra, those on the opposite side of the chamber were not supportive. He saw it as unjustifiable for a person to be charged for medical treatment by a specialist, a hospital, a chemist or a physiotherapist if they had been referred for such treatment by a doctor. We often forget today just how much of a fight the Labor government under Gough Whitlam had in introducing Medibank, its scheme for universal health care. It succeeded in enacting it amidst a raging inferno of opposition from the conservative side of government, the Australian Medical Association and many others. The government had to overcome initial scepticism of many voters and unrelenting parliamentary opposition to make it law. To do this, after it was blocked twice in the Senate, the government held a double dissolution election and the only joint sitting of the parliament under section 57 of the Constitution.
Yet, even with all of this, the Fraser government effectively abolished Medibank upon coming to office, with the original scheme closing some years later. It was only with the return of Labor to office under the prime ministership of Bob Hawke that universal health care, now known as Medicare, was re-enacted and entrenched by a Labor government. Medicare has become one of the most popular and successful pieces of public policy in Australian history, and Australians owe a great debt to people like Gough Whitlam, Bill Hayden and Doug Everingham, who fought for universal health care and ensured that subsequent governments continued to fight for it. Labor people have always been and always will be defenders of universal health care. We defend it not just to ensure basic healthcare rights for millions of Australians but also to protect the legacy of those who fought so hard to establish it, including Doug Everingham.
In his statement issued to announce his retirement in 1984, Doug Everingham stated that he wanted to devote more time to, amongst other things, peace education, and so it was that one of the central themes in his first speech still burned bright at the end of his time in parliament. That he maintained his activism in this area is evidenced by an open letter he signed in 2001 seeking a lifting of the economic sanctions on Iraq. He saw these as an ineffective method of bringing about change where it was needed, within the Iraqi government, that instead brought misery and degradation to ordinary people, especially children. I note that cosignatories to this letter included former Prime Minister Malcolm Fraser and the then Catholic Archbishop of Adelaide, Leonard Faulkner.
At the time of his retirement, Doug Everingham was described as a sincere and compassionate man, and it was these qualities that were at the heart of his approach to politics. He sought to improve the lives of those who, especially at the time of his election, had little or no voice in Australian politics and were often ignored by the government of the day, and, when given the chance to implement practical changes in office, he did so with energy, with vigour, bringing to it the benefit of his prior experience in medicine.
With the death of Doug Everingham, we lose another member of a famous government that changed the nature of this nation. Labor mourn the loss of one of our own—a Labor man who never stopped advocating for the many causes in which he believed, a man of decency and intellect. We again extend our deepest sympathies to his family and friends at this time.
Question agreed to, honourable senators standing in their places.
PETITIONS
The Clerk: A petition has been lodged for presentation as follows:
Marriage
To the Honourable President and members of the Senate in Parliament assembled:
The petition of the undersigned shows:
The Coalition Government was re-elected promising to hold a plebiscite on the legal definition of marriage.
As such Australians deserve to have their say.
Your petitioners ask that the Senate respects the will of the Australian people and passes enabling legislation for a plebiscite on marriage to be now conducted.
from Senator Cormann (from 75 citizens)
NOTICES
Presentation
Senator Bernardi to move:
That the Senate—
(a) notes the attempts by GetUp! and like-minded organisations to pursue the medical deregistration of Dr Pansy Lai for exercising her right to free speech concerning the marriage survey;
(b) condemns those organisations and individuals for attacking freedom of conscience and speech; and
(c) supports Dr Lai exercising her freedom of conscience and speech in participating in the public debate about the Federal Government's marriage survey. (general business notice of motion no. 443)
Senator Di Natale to move:
That the Senate—
(a) notes that:
(i) 31 August 2017 marked the 16th annual International Overdose Awareness Day, commemorating all those who have died or been seriously injured due to drug overdose,
(ii) annual accidental drug-related deaths are now more than double the road toll,
(iii) Aboriginal people are drastically and tragically over-represented in our overdose death numbers at a rate of 18.3 per 100 000 compared with 5.9 for non-Aboriginal people, and
(iv) the significant increases in deaths related to pharmaceutical opioids continue to rise; and
(b) calls on the Government to urgently address the rising rates of harm associated with drug use by implementing and appropriately resourcing evidence-based harm reduction policies, including:
(i) greater access to needle and syringe programs across the country, including urgent rollout of trials inside prisons,
(ii) expanded access to medically supervised injecting facilities across Australia,
(iii) promoting awareness of the life-saving opioid reversal drug naloxone, highlighting its availability over the counter in pharmacies,
(iv) working with state and territory governments to cease the use of drug sniffer dogs at festivals and introduce urgent trials of pill testing during the upcoming festivals season, and
(v) speed the introduction of real time prescription monitoring of pharmaceutical opioids. (general business notice of motion no. 444)
Senator Kakoschke-Moore to move:
That the Senate—
(a) notes that:
(i) payday loans and consumer leases can impose crippling interest rates and fees and trap people in a debt spiral,
(ii) these loans and leases were examined by the Small Amount Credit Contracts (SACC) Independent Review Panel which reported to the Government in March 2016 – the report was released publicly by the Government on 19 April 2016,
(iii) the SACC Independent Review Panel made 24 recommendations to the Government about reforming the SACC sector,
(iv) the Federal Government announced on 28 November 2016 that it will adopt 22 of the 24 recommendations – legislation was expected to be introduced in 2017,
(v) consumer groups such as CHOICE, the Consumer Action Law Centre and community legal centres continue to call on the Government to implement reforms to help prevent the exploitation they continue to see,
(vi) the reforms recommended by the SACC Independent Review Panel have in-principle cross-party support, and
(vii) ongoing harm is being caused, in particular, to financially vulnerable consumers, the longer the Government fails to act to reform the SACC sector; and
(b) calls on the Government to urgently introduce its bill to amend the National Consumer Credit Protection Act 2009, in accordance with the recommendations the Government has adopted from the SACC review. (general business notice of motion no. 445)
Senator Leyonhjelm to move:
That the following bill be introduced: A Bill for an Act to remove GST from the supply of electricity, and for related purposes. A New Tax System (Goods and Services Tax) Amendment (Make Electricity GST Free) Bill 2017. (general business notice of motion no. 446)
Senator Williams to move:
That the Inspector of Transport Security Regulations 2017, made under the Inspector of Transport Security Act 2006, be disallowed [F2017L00510].
Senator Di Natale to move:
(1) That the Senate adopts the following code of conduct:
PARLIAMENTARY CODE FOR RESPECTING CULTURAL DIVERSITY
PREAMBLE
The House of Representatives and the Senate have reached agreement on a Code of Conduct which is to apply to all members of Parliament.
Members of Parliament recognise that they are in a unique position of responsibility in influencing the nature of civic conduct in Australia.
Members of Parliament recognise that their words and actions in the Senate and the House of Representatives influence issues relating to multicultural affairs, migration and citizenship, and can assist in guiding respectful public debate.
Members of Parliament acknowledge that parliamentary privilege protects the right of members to participate freely in debate in the Parliament without fear of prosecution.
Members of Parliament recognise the need to exercise their valuable right of freedom of speech in a responsible manner and a failure to do so may have serious implications for individuals and groups of the Australian community and may diminish the social cohesion that is essential to our national character.
THE CODE
1. Uphold the honour of public office
(a) Members of Parliament will take all reasonable steps to represent public office in a manner that is consistent with the values of respect and inclusion.
(b) This includes behaviour and language during parliamentary proceedings.
2. First Peoples of Australia, the Aboriginal and Torres Strait Islander Peoples
(a) Members of Parliament recognise the value and contribution of the First Peoples of Australia, the Aboriginal and Torres Strait Islander Peoples.
(b) Members of Parliament recognise that with the exception of Aboriginal and Torres Strait Islander Peoples, Australia is a nation of migrants.
3. Respect Australians' diversity
(a) Members of Parliament recognise that Australia has been enriched by the diversity of colour, ethnic origin, culture and religious belief that exists within our nation.
(b) Members of Parliament recognise that principles including respect for religious and cultural diversity, tolerance, and justice should be upheld in parliamentary debate in a respectful manner.
4. Reject discriminatory or exclusionary statements
(a) Members of Parliament will not knowingly humiliate or degrade an individual or community based on their colour, national or ethnic origin, culture or religious belief.
(b) This includes acts which are intended to incite hatred or create fear of a community.
(2) That this resolution be communicated to the House of Representatives for concurrence. (general business notice of motion no. 447)
Senator Di Natale to move:
(1) That the Senate notes that:
(a) senators need to exercise their valuable right to freedom of speech in a responsible manner to ensure balanced discussion; and
(b) the actions of senators may have serious implications for individuals and groups within the Australian community and may diminish the social cohesion that is essential to our national character.
(2) The following amendment to standing order 193 operate as a temporary order from the first sitting day in October 2017, until the second sitting day of 2018:
at the end of standing order 193(3), add:
(4) Adverse reflections on an individual or community on the basis of colour, national or ethnic origin, culture or religious belief are highly disorderly.
(5) A senator shall contribute to debate in a manner which upholds the honour of public office and the Parliament. (general business notice of motion no. 448)
Senator Di Natale to move:
(1) That the Senate notes that there have now been five current and former senators referred to the Court of Disputed Returns to determine their eligibility under section 44 of the Constitution.
(2) The Legal and Constitutional Affairs References Committee inquire into and report by 14 September 2017 on the following matters:
(a) the eligibility of senators in the 45th Parliament under section 44 of the Constitution in so far as it relates to being 'a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power';
(b) the legal liability of senators who know, or have grounds to suspect, that they are ineligible for office but do not come forward with that information, and whether they are defrauding the Commonwealth; and
(c) any other related matters.
(3) For the purposes of carrying out the inquiry, the committee must as soon as practicable, with the approval of the President, appoint an independent auditor, or auditors, with expertise in migration, citizenship and constitutional law to assist the committee.
(4) The independent auditor or auditors will be able to request to the committee to use its powers to order the production of documents from senators and order them to appear as witnesses and answer questions.
(5) On behalf of the committee, the independent auditor or auditors may present to representatives of foreign governments in Australia and seek information.
Senator Ruston to move:
That the following bill be introduced: A Bill for an Act to amend the law relating to wine, international wine tourism and complementary services, products and experiences, and for related purposes. Australian Grape and Wine Authority Amendment (Wine Australia) Bill 2017.
Senators Xenophon and Carr to move:
(1) The Senate notes that:
(a) the Government has embarked on a $35 billion program to provide nine Future Frigates to the Royal Australian Navy;
(b) the Government has made a decision to exclude Australian companies from any leadership and management role in the Future Frigate program, a decision that the Department of Defence has not conveyed to the Senate; and
(c) a decision to exclude either of the two very experienced Australian naval shipbuilders, ASC Pty Ltd and Austal, shows a completely unwarranted lack of confidence the Government has in Australian Industry Capability, and has sovereign implications.
(2) That there be laid on the table, by the Minister representing the Minister for Defence Industry, by the close of business on 6 September 2017:
(a) Gateway Review briefs and decisions in relation to the Future Frigate project to the extent that those briefs and decisions go to Australian Industry Capability, the partnering or use of Australian shipyards, and how Techport and other Australian facilities might be used in the program;
(b) any correspondence between the Department of Defence and ASC Pty Ltd in response to the announcement that Australian shipbuilders ASC Pty Ltd and Austal would partner to win the contract to build the $35 billion Future Frigate in Adelaide;
(c) any correspondence between the Department of Defence and Austal in response to the announcement that Australian shipbuilders ASC Pty Ltd and Austal would partner to win the contract to build the $35 billion Future Frigate in Adelaide;
(d) any correspondence between the Department of Defence and the three prospective design partners in response to the announcement that Australian shipbuilders ASC Pty Ltd and Austal would partner to win the contract to build the $35 billion Future Frigate in Adelaide; and
(e) any other documentation held by the Future Frigate project that discusses Australian Industry Capability the partnering or use of Australian shipyards, and how Techport and other Australian facilities might be used in the program. (general business notice of motion no.449)
Senator Xenophon to move:
(1) The Senate notes that:
(a) the Murray Darling river system is a national resource;
(b) the aim of the Murray-Darling Basin Plan, agreed to in 2012, is to ensure that water is shared between all users, including the environment, in a sustainable way;
(c) it is important that the Commonwealth, the states and users comply with the agreed plan;
(d) on 31 August 2017, the ABC's Lateline program aired serious allegations in respect to illegal structures and water diversion within the Murray-Darling Basin and the alleged failure by officials to act upon the assertion of these allegations to authorities by the Lamey family; and
(e) the Senate has an oversight responsibility in relation to implementation and execution of the Murray-Darling Basin Plan and visibility to the response of authorities to any allegations of conduct contrary to the plan, or the law, will assist the Senate in this regard.
(2) That there be laid on the table, by the Minister representing the Minister for Agriculture and Water Resources, by the start of business on 13 September 2017:
(a) any correspondence between the Lameys and the Murray-Darling Basin Authority (MDBA), the Department of Agriculture and Water Resources (DAWR) and/or the Commonwealth Environmental Water Holder (CEWH) raising allegations over illegal structures, water diversion and other improper conduct taking place near their property on the McIntyre River west of Goondiwindi;
(b) any correspondence between Norman Farming Pty Ltd (and related entities) and MDBA, DAWR or CEWH in relation to issues raised by the Lameys;
(c) any internal correspondence of MDBA, DAWR and/or CEWH on the issues raised by the Lameys;
(d) any correspondence between MDBA, DAWR, and/or CEWH on the issues raised by the Lameys;
(e) any correspondence from MDBA, DAWR and/or CEWH to the Queensland Department of National Resources and Mines and/or SunWater on the issues raised by the Lameys;
(f) a summary of the expenditure of public money from the Commonwealth, including through any Queensland Government programs, to Norman Farming Pty Ltd (and related entities), including:
(i) the expenditure amounts,
(ii) the associated volume of water,
(iii) the scope of work associated with each expenditure amount,
(iv) evidence that the work associated with each expenditure amount has been completed, and
(v) evidence that the volume of water associated with each expenditure is verified; and
(g) a summary of any negotiations on-foot between MDBA, DAWR, and/or CEWH and Norman Farming Pty Ltd (and related entities), including in relation to the store and release of environmental water. (general business notice of motion no. 450)
Senator Smith to move:
That the Senate notes:
(a) that 3 September 2017 was Australian National Flag Day which celebrates the occasion the Australian National Flag was first flown in Melbourne in 1901;
(b) the date of 3 September was first recognised as Australian National Flag Day in 1996 by then Governor-General Sir William Deane as the date for commemorating Australia's National Flag;
(c) the Australian National Flag enjoys strong community endorsement as the pre-eminent Australian national symbol; and
(d) the Australian National Flag is an expression of Australia's democratic values such as freedom of speech, rule of law and freedom of association. (general business notice of motion no. 451)
Senator Fifield to move:
That consideration of the business before the Senate on Tuesday, 17 October 2017, be interrupted at approximately 5 pm, but not so as to interrupt a senator speaking, to enable Senator Brockman to make his first speech without any question before the chair.
Senator Di Natale to move:
That the Senate does not consider coal-fired power to be clean. (general business notice of motion no. 452)
Senator Whish-Wilson to move:
That the Senate—
(a) notes that:
(i) the Sea Shepherd Conservation Society conducted anti-whaling activities in the Southern Ocean, beginning in 2005, that prevented the slaughter of thousands of whales,
(ii) the Sea Shepherd Conservation Society announced last week that they will no longer be conducting patrols in the Southern Ocean because the Japanese whaling fleet is now being supported by the Japanese military,
(iii) Japan again plans to slaughter 333 Minke Whales in the Southern Ocean this summer under the guise of so-called 'scientific whaling' – most likely in the Australian Whale Sanctuary – and that the Japanese Parliament has recently passed a law to facilitate a return to full commercial whaling, and
(iv) the Coalition Government promised in the 1ead up the 2013 election that they would send a patrol vessel to monitor whaling activity in the Southern Ocean, but that they have failed to fulfil this promise; and
(b) calls upon the Australian Government to:
(i) outline the legal action Australia will be undertaking to prevent whaling in the Southern Ocean, and
(ii) conduct monitoring and surveillance activities in Australian territorial waters in the Southern Ocean and in the Australian Whale Sanctuary. (general business notice of motion no. 453)
Senator Rhiannon to move:
That the Senate—
(a) notes that:
(i) the 2016 Senate inquiry into contamination of Australia's Defence Force facilities and other Commonwealth, state and territory sites in Australia concluded that there were many points of failure in the Department of Defence's response to PFOS/PFOA contamination at the Williamtown RAAF Base,
(ii) there are still residents in the NSW Environment Protection Authority (EPA) mandated 'Investigation Area' in Williamtown, known locally as the 'Red Zone', relying on bottled water shipments from the Department of Defence, despite repeated requests to be connected to the reliable and uncontaminated town water supply,
(iii) there is growing concern of reports of an extensive cancer cluster of up to 49 cases, particularly around the area of Cabbage Tree Road, and
(iv) many residents in Fullerton Cove, outside the current EPA-mandated 'Investigation Area', have returned abnormally high results for PFOS/PFOA contaminants in their blood; and
(b) calls on:
(i) the Federal Government to urgently commence a process of voluntary buy-outs of affected properties,
(ii) the Federal Government to urgently develop a plan to clean up contamination from the Williamtown RAAF Base, and
(iii) the Department of Defence and NSW EPA to re-examine the current boundaries of the Williamtown 'Investigation Area' and investigate reports of extensive contamination outside the current boundaries. (general business notice of motion no. 454)
Senators Moore, Kitching and Collins to move:
That the Senate—
(a) notes:
(i) the life and work of Ms Fiona Richardson, member of the Victorian parliament and Australia's first Minister for Women and the Prevention of Family Violence,
(ii) that Ms Richardson, as a member and minister, was deeply committed to the importance of effective family violence policy which was focussed on the needs and experiences of victims,
(iii) that Ms Richardson bravely made her personal family experiences public, making a strong commitment to the community to implement and resource the recommendations of the Victorian Royal Commission, and to eradicate violence in the home within a generation and to end its dangerous and costly impacts on families and children,
(iv) that Ms Richardson's inspiration and practical strategic planning have supported women and children across her state and contributed to the national response to the scourge of violence, and
(v) that Ms Richardson's challenge that we can do more and must do more will continue to lead the debate; and
(b) sends its sympathy to Ms Richardson's family, her friends and community. (general business notice of motion no. 455)
Senator Siewert to move:
That the Senate—
(a) notes that:
(i) it has been reported that a coffee chain in Melbourne allowed an intern to work hours well beyond the maximum 50 hours per fortnight as part of the Government's Youth Jobs PaTH program, and rostered on another young job seeker before the internship had even begun, and
(ii) on both occasions, management at the coffee chain offered visa gift cards as payment;
(b) acknowledges that:
(i) we are already seeing allegations of exploitation as predicted just months into the program, and
(ii) similar internship programs overseas saw systemic exploitation and churn, and this was repeatedly raised as a concern; and
(c) calls on the Government to:
(i) permanently ban the coffee chain responsible from further partaking in the Government's Youth Jobs PaTH program, and
(ii) carry out an audit as a matter of urgency of the Youth Jobs PaTH program to ensure no other employers are exploiting young job seekers. (general business notice of motion no. 456)
BUSINESS
Consideration of Legislation
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (15:56): I move:
That, subject to introduction, the following general business orders of the day be considered on Thursday, 7 September 2017 at the time for private senators' bills:
A New Tax System (Goods and Services Tax) Amendment (Make Electricity GST Free) Bill 2017 (subject to introduction)
Aged Care Amendment (Ratio of Skilled Staff to Care Recipients) Bill 2017 (subject to introduction)
Question agreed to.
Leave of Absence
Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (15:57): by leave—I move:
That leave of absence be granted to the following senators:
(a) Senator Fierravanti-Wells from 4 September to 7 September 2017, on account of ministerial business;
(b) Senator Payne for 6 September and 7 September 2017, on account of ministerial business; and
(c) Senator Sinodinos on 5 September, for personal reasons.
Question agreed to.
Leave of Absence
Senator URQUHART (Tasmania—Opposition Whip in the Senate) (15:58): by leave—I move:
That leave of absence be granted to Senator Collins for Thursday, 7 September 2017, for personal reasons.
Question agreed to.
NOTICES
Postponement
The Clerk: Postponement notifications have been lodged in respect of the following:
General business notice of motion no. 436 standing in the name of Senator Rice for 5 September 2017, proposing the introduction of the Regional Forest Agreements Legislation (Repeal) Bill 2017, postponed till 7 September 2017.
General business notice of motion no. 439 standing in the name of Senator McKim for today, proposing an order for the production of documents by various ministers concerning Mr Hamed Shamshiripour, postponed till 5 September 2017.
COMMITTEES
Reporting Date
The Clerk: Notifications of extensions of time for committees to report have been lodged in respect of the following:
Community Affairs Legislation Committee—provisions of the Social Services Legislation Amendment (Welfare Reform) Bill 2017—extended from 4 September to 6 September 2017.
Education and Employment Legislation Committee—Fair Work Amendment (Pay Protection) Bill 2017—extended from 4 September to 6 September 2017.
Education and Employment References Committee—corporate avoidance of the Fair Work Act 2009—extended from 4 September to 6 September 2017.
Legal and Constitutional Affairs Legislation Committee—provisions of the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017—extended from 4 September to 5 September 2017.
BILLS
High Speed Rail Planning Authority Bill 2017
First Reading
Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (15:59): I move:
That the following bill be introduced: A Bill for an Act to establish the High Speed Rail Planning Authority, and for related purposes.
Question agreed to.
Senator FARRELL: I present the bill and move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
Second Reading
Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (16:00): I move:
That this bill be now read a second time.
I seek leave to table an explanatory memorandum relating to the bill.
Leave granted.
Senator FARRELL: I table the explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
HIGH SPEED RAIL PLANNING AUTHORITY BILL 2017
I am pleased to introduce this legislation, which demonstrates the commitment by the Australian Labor Party to High Speed Rail through the establishment of a Planning Authority.
The proposed high speed rail link between Brisbane and Melbourne via Sydney and Canberra is a project that requires vision.
It is a significant undertaking—more than 1,700 kilometres long.
It is challenging—it will involve the construction of tens of kilometres of tunnels.
It is complex, necessarily involving the governments of Queensland, New South Wales, Victoria and the Australian Capital Territory as well as dozens of local councils.
It is for these reasons that this bill proposes to create an 11 person high speed rail authority to bring together all affected states and territories as well as rail and engineering experts to progress planning and, critically, focus on the corridor.
Members would include:
One member from each of the jurisdictions affected—Queensland, New South Wales, Victoria and the Australian Capital Territory;
One member representing the Australian Local Government Association;
One member nominated by the Australasian Railway Association; and
Five members appointed by the minister for infrastructure on the basis of qualifications or expertise—to make sure there is engineering and other expertise on the authority.
The authority's roles would include consideration of:
Land use planning relating to the corridor;
Safety;
Measures to minimise environmental impact;
Public consultation; and
Intervention to purchase the corridor.
Mr Anthony Albanese first introduced this bill in the other place in December 2013.
However, a lack of political will from the Abbott Government meant the bill lapsed, requiring its reintroduction in October 2015 and now again in this chamber.
It could have been debated in the other place on both occasions. Indeed, at one stage it was literally the only piece of legislation before the House of Representatives.
Yet the coalition government showed no vision, despite the fact that people like former trade minister, Andrew Robb, have come out as strong supporters of high speed rail.
Mr Robb stated that he could produce the names of international companies that had told him they could deliver the project in full.
Any politician who tells you that they can fund an entire rail line using value capture is pulling your leg.
And like most of the government's thought bubbles, the idea collapsed within hours when the parliamentary secretary for cities ruled out support for the project.
It was another lost opportunity from a government that had a plan to win government but no plan to govern.
Former transport minister, Mr Albanese, commissioned a two-part study involving extensive consultation with industry and international operators of high speed rail, as well as significant community input.
The study, published in April 2013, included the business case for the project, consideration of environmental issues, projections of patronage, the proposed route, proposed stations and proposed timelines.
It found that high speed rail down the east coast of Australia was indeed a viable proposition.
For example, it found that high speed rail would return, for the Sydney to Melbourne section, $2.15 in economic benefit for every dollar invested.
The report found that once fully operational across the Brisbane to Melbourne corridor; high speed rail could carry approximately 84 million passengers a year.
At speeds of 350 kilometres per hour, people would be able to travel from Melbourne to Sydney or Melbourne to Brisbane in less than three hours. Of course, new technology is seeing speeds in excess of that.
The report found that Commonwealth leadership and coordination would be essential, given the number of jurisdictions involved.
High speed rail would also be an engineering challenge, requiring at least 80 kilometres of tunnels, including 67 kilometres in Sydney alone.
But despite these challenges, the experts have said that high speed rail has huge potential, particularly if we consider where our society is headed over coming decades.
We can anticipate significant population growth over coming decades along the route of this proposed line.
We can also anticipate that growing pressure for a carbon-constrained economy will drive the economics of this project ever more positively over time.
We can also anticipate that if we fail to act soon, delivery of high speed rail will be made more difficult and more costly because parts of the corridor will be built out by urban sprawl.
That is why this bill proposes to create an 11-person high speed rail authority to bring together all the key stakeholders as outlined earlier.
In government, Labor undertook a proper process to come to the position that a High Speed Rail Authority was needed. The High Speed Rail Advisory Group included people such as the former Deputy Prime Minister Tim Fischer, the Business Council of Australia's chief executive, Jennifer Westacott, and Australasian Railway Association chief executive Bryan Nye.
It was chaired by the deputy secretary of my former department, Lyn O'Connell.
Serious people having a look at a serious issue and coming up with serious suggestions about the way forward, and a way forward that should have been bipartisan.
That is why the former Labor government embraced these recommendations, which were unanimous, and allocated $54 million to establish the authority and begin the process of corridor acquisition.
But in 2013 the incoming coalition government scrapped this allocation and turned its back on the project.
To best understand the potential of high speed rail, we need to look well beyond 2017 and consider where this nation will be in coming decades.
We know that our population will be larger.
We know that this growth will be concentrated precisely on the route of this high speed rail proposal.
We can also expect the world will have moved in terms of economic options as it is doing in Asia and Europe towards rail. Rail is the transport of the 21st Century.
According to the high speed rail study I referred to earlier, travel on the east coast of Australia is forecast to grow by about 1.8 per cent every year over the next two decades and to increase by 60 per cent by 2035.
The study said east coast trips would double from 152 million trips in 2009 to 355 million trips in 2065.
There is another compelling reason to proceed with high speed rail, and that is the boost to regional Australia.
Stations are proposed for the Gold Coast, Casino, Grafton, Coffs Harbour, Port Macquarie, Taree, Newcastle, the Central Coast, Southern Highlands, Wagga Wagga, Albury-Wodonga and Shepparton.
This project will position these centres to take some of the population growth pressure off our capital cities, which will no doubt be a key issue in the future.
Importantly, it will also provide for uplift value by the economic improvement that will occur in those regional centres to be factored into the funding, building and construction of the high speed rail line.
It could also deliver a massive improvement in liveability.
Travelling from a regional centre to of one of Australia's fast growing east coast cities in under an hour will transform those centres and facilitate new business.
Vision is one of the obligations of leadership, and the Labor party is leading the charge in policy development in this Parliament.
We must imagine a better future and take actions to create that future.
We have done the research.
We know that the project is viable.
What this chamber needs to do is commit to the next step required to make high speed rail a reality—the creation of an authority to advance detailed planning and work with other jurisdictions and begin to acquire the corridor before it is built out by urban sprawl is needed now.
True leaders do not just sit around waiting for the telephone to ring and be told what to do next. They act on what they believe in and get on with the job of governing Australia.
This Parliament should show some genuine leadership by acting on high speed rail, starting with debating and supporting this bill.
I fear this is unlikely, given the Government's refusal to debate this issue in recent years.
But there is light at the end of the tunnel.
A Shorten Labor government will act where the Abbott-Turnbull governments have failed.
We will establish a high speed rail authority.
We will ask the authority to move quickly towards calling for expressions of interest from international rail companies that have shown a capacity to deliver real projects.
Labor is prepared to think ahead and future generations will be the beneficiaries.
Senator FARRELL: I seek leave to continue my remarks later.
Leave granted; debate adjourned.
DOCUMENTS
ASC Pty Ltd
Order for the Production of Documents
Senator XENOPHON (South Australia) (16:01): I seek leave to amend general business notice of motion No. 432 standing in my name for today concerning an order for the production of documents relating to ASC Pty Ltd before asking that it be taken as a formal motion.
Leave granted.
Senator XENOPHON: I move the amended motion standing in my name:
That the Senate—
(a) notes that:
(i) ASC Pty Ltd is a Government Business Enterprise, ultimately owned by the taxpayer,
(ii) early in its deliberations on the future submarine project, the Department of Defence made a decision to not involve ASC in any substantive work on the future submarine – a fact only revealed to the Senate on 20 June 2017 at an Economics References Committee hearing,
(iii) on 11 October 2016 – in response to a strategic review of ASC, that was conducted in 2015 – the Government announced that it was splitting ASC group into three entities:
(A) Shipbuilding
(B) Submarine Sustainment, and
(C) Infrastructure, and
(iv) Defence has made a decision to exclude ASC from any management role in the Future Frigate program – a plan also withheld from the Senate; and
(b) orders that there be laid on the table, by the Minister representing the Minister for Defence Industry, by the start of business on 6 September 2017:
(i) the report of the strategic review of ASC Pty Ltd that was conducted in 2015, and
(ii) all unclassified portions of the Future Frigate tender documentation set.
Question agreed to.
MOTIONS
Royal Commission into Institutional Responses to Child Sexual Abuse
Senator SIEWERT (Western Australia—Australian Greens Whip) (16:02): I move:
That the Senate—
(a) notes that, on 14 August, the Royal Commission into Institutional Responses to Child Sexual Abuse released a report on criminal justice, and made 85 recommendations to reform the Australian criminal justice system to ensure a fairer response for victims of institutional child sexual abuse;
(b) acknowledges that the report outlines a sweep of legislative and policy changes including:
(i) reform to policy and prosecution responses,
(ii) criminalising failure to report child sexual abuse in institutions, including information given during religious confessions,
(iii) sentencing standards in historical cases, and
(iv) introduced or amended legislation to adopt a 'broad grooming offence'; and
(c) urges the Attorney-General to work with states and territories to respond to its recommendations.
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (16:02): I seek leave to make a short statement.
The DEPUTY PRESIDENT: Leave is granted for one minute.
Senator McGRATH: The Commonwealth will carefully consider the royal commission's 85 recommendations. The government thanks the royal commission for its painstaking work in developing recommendations traversing policing offences, prosecutorial practices, evidence, judicial directions and other means of informing juries, delays, sentencing, appeals and considerations relating to juvenile offenders. Many recommendations including those conceding mandatory reporting relate primarily to state and territory legislation, and so will largely be matters for those jurisdictions. The government will continue to work collaboratively with the states and territories in responding to the royal commission's recommendations.
Question agreed to.
International Childhood Cancer Awareness Month
Senator GRIFF (South Australia) (16:03): I move:
That the Senate—
(a) notes that:
(i) September is International Childhood Cancer Awareness Month,
(ii) childhood cancers are mostly rare cancers with poor survival rates,
(iii) as a group, rare and 'less common' cancers account for almost a quarter of all diagnoses and almost 40% of cancer deaths, and yet attract 13.5% of research funding,
(iv) according to statistics supplied by Australian and New Zealand Children's Haematology/Oncology Group, about 710 children aged between 0 to 14 years are diagnosed with cancer each year, and about half of them are four years old or younger,
(v) of children diagnosed with cancer, 100 die each year before the age of 15,
(vi) brain cancer accounts for about 40% of childhood cancer deaths, followed by leukemia at 23%,
(vii) according to Canteen, adolescents and young adults have experienced lower gains in five-year survival and death rates compared to young children and adults, partly because of poorer access to clinical trials, and
(viii) during last year's election the Government pledged $20 million towards the Zero Childhood Cancer initiative, however, in the recent federal Budget, the Government pledged only $5.8 million over four years for research and clinical trials into childhood cancer; and
(b) calls on the Government to:
(i) substantially increase its funding towards childhood cancer research and towards building an internationally-linked national network of cancer trials for all low survival cancers, and
(ii) allow cancer drugs on the Pharmaceutical Benefits Scheme (PBS) to be repurposed so that patients can access the appropriate cancer drug for their particular treatment needs, rather than restrict subsidised access only to the PBS-prescribed drug for their cancer type.
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (16:04): I seek leave to make a short statement.
The DEPUTY PRESIDENT: Leave is granted for one minute.
Senator McGRATH: The coalition government is providing record levels of funding for medical research and new treatments in the global fight against childhood cancers. Paragraph (a)(viii) of the motion is incorrect; we are funding both projects. Paragraph (b)(ii) is irresponsible. The suggestion that parliament should override our medical experts is wrong. We provided $20 million to the Zero Childhood Cancer initiative, which has already started enrolling patients. We are providing $5.8 million in funding for Cancer Australia to support new paediatric clinical trials, with the first project being AIM BRAIN. In the budget, we provided $68 million to build Australia's first proton therapy cancer treatment and research facility. Under the Medical Research Future Fund, we've provided $13 million in funding for rare cancers.
Question agreed to.
Dementia Awareness Month
Senator POLLEY (Tasmania) (16:05): I move:
That the Senate—
(a) notes:
(i) September is Dementia Awareness Month,
(ii) the theme for 2017 is 'You are not alone', which aims to raise awareness of the support and services available for people with dementia and their families and carers, and
(iii) that dementia is not a future issue – it is the second leading cause of death in Australia – there are over 350,000 Australians living with dementia now and more than 1800 new cases each week; and
(b) urges all levels of government to work together to:
(i) make dementia a priority and help raise awareness in their communities to break down the stigmas, social isolation and exclusion that often comes with the diagnosis of dementia, and
(ii) help build a dementia-friendly nation where people living with dementia and their carers are supported to continue to live active, engaged and meaningful lives for as long as possible.
Question agreed to.
DOCUMENTS
Cashless Debit Card
Order for the Production of Documents
Senator SIEWERT (Western Australia—Australian Greens Whip) (16:06): I move:
That there be laid on the table, by the Minister representing the Minister for Human Services, by no later than 3.30 pm on 5 September 2017, the Wave 2 Final Evaluation Report of the Cashless Debit Card Trial authored by ORIMA Research and all associated documents.
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (16:06): I seek leave to make a short statement.
The DEPUTY PRESIDENT: Leave is granted for one minute.
Senator McGRATH: The Minister for Human Services publicly released the final independent evaluation of the Cashless Debit Card trial last week.
Senator SIEWERT (Western Australia—Australian Greens Whip) (16:06): I seek leave to make a very short statement.
The DEPUTY PRESIDENT: Leave is granted for one minute.
Senator SIEWERT: This order for the production of documents is not only for the report itself but also for associated documents, so I still believe that this is an important motion.
Question agreed to.
Asylum Seekers
Order for the Production of Documents
Senator McKIM (Tasmania) (16:07): I seek leave to amend general business notice of motion No. 430 standing in my name by changing the date in the final paragraph from 4 September to 11 September. For the clarity of those in the Senate, that is simply changing the date by which I am asking the government to provide the relevant information to the Senate.
Leave granted.
Senator McKIM: I move the motion as amended:
That the Senate—
(a) notes media reports which contain many of the details of arrangements between the Australian Government and the Government of the United States of America for the resettlement of refugees and asylum seekers on Manus Island and Nauru;
(b) notes the failure of the Minister representing the Minister for Immigration and Border Protection to comply with the order of the Senate made on 8 February 2017 to provide to the Senate all information relating to the refugee resettlement deal for people on Manus Island and Nauru between Australia and the United States of America;
(c) also notes that the Minister's response, tabled on 15 February 2017, does not set out the particular harm to the public interest that would result by providing these documents, but instead relies on a letter to the Senate Legal and Constitutional Affairs References Committee, dated 7 January 2017, in relation to a tangentially related inquiry;
(d) does not accept that a blanket claim to withhold information from the Senate and its committees regarding the Government's negotiations for the resettlement of asylum seekers on Manus Island and Nauru meets the terms of the Senate order of continuing effect relating to public interest immunity claims; and
(e) orders that there be laid on the table by the Minister representing the Minister for Immigration and Border Protection, no later than 11 September 2017, all documents and correspondence held by the Department of Immigration and Border Protection, or the Minister for Immigration and Border Protection, or members of his staff, created after 1 November 2015, relating to the resettlement of asylum seekers or refugees previously and currently on Manus Island and Nauru, including, but not limited to:
(i) the terms of the arrangement, or arrangements, with the United States of America,
(ii) all letters and emails between the department and the minister,
(iii) all briefing notes, including all ministerial briefing notes,
(iv) all internal departmental emails and memos, and
(v) all recorded or noted phone calls and meetings, including meeting agendas and minutes, and the names and positions of persons present.
The DEPUTY PRESIDENT: The question is that motion No. 430 as amended, moved by Senator McKim, be agreed to.
The Senate divided. [16:13]
(The Deputy President—Senator Lines)
MOTIONS
Schools
Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (16:15): I move:
That the Senate—
(a) acknowledges that:
(i) in 2013, the Commonwealth Government recognised that our schools desperately needed to be resourced properly, and signed agreements with the states to provide that much needed funding,
(ii) the Prime Minister's new education funding plan:
(A) cuts $17 billion from Australian schools,
(B) originally did not include any requirement for any state government to increase their school funding, and
(C) cancels the current New South Wales agreement on schools funding, locking in a lower 2017 level of funding for the next ten years,
(iii) these cuts mean:
(A) larger class sizes,
(B) fewer specialist teachers for literacy and numeracy,
(C) less support for students with disabilities and behaviour issues, and
(D) reduced training and development for teachers,
(b) calls on the government to commit to the full, original Gonski needs-based funding model, designed to give schools the resources required to deliver high quality education for all students – noting that this model has been a great success for public schools; and
(c) notes the importance of elected representatives listening to their communities, and thanks the concerned parents and citizens who contacted senators to encourage them to:
(i) take a stand for public education,
(ii) vote against the Australian Education Amendment Bill 2017, and
(iii) properly fund the Gonski reforms put in place by the Commonwealth Government in 2013.
Senator HANSON-YOUNG (South Australia) (16:15): I seek leave to move an amendment to the motion currently before the chair.
Leave not granted.
Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (16:16): I seek leave to make a short statement.
The DEPUTY PRESIDENT: Leave is granted for one minute.
Senator McGRATH: The coalition government is delivering a new schools funding system that boosts investment by $23.4 billion and ensures that every student receives the support they need to reach their full potential. For the first time, every student will get the support they need no matter their background or where they live. That means things like more one-on-one time with teachers and support for new or existing initiatives, such as specialist educators or targeted intervention programs. Our position is to deliver the funding support equality that each student needs. We will never support Labor's corruption of needs based funding.
Senator HANSON-YOUNG (South Australia) (16:17): I seek leave to make a short statement.
The DEPUTY PRESIDENT: Leave is granted for one minute.
Senator HANSON-YOUNG: It is incredibly unprecedented to see the opposition want to silence people in this place from being able to even move an amendment to their motion. What a bunch of cowards! What an absolute bunch of cowards they are! They know full well that the Labor Party have never implemented or legislated the genuine full Gonski. They had the opportunity to do it in 2013. They squibbed the opportunity. They left schools without certainty for years. And now they deny the leave to be able to do this. We were of course going to move an amendment to this motion to say that the Labor Party failed to implement the genuine full Gonski when they were in power. They've failed again. (Time expired)
Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (16:18): I seek leave to make a short statement.
The DEPUTY PRESIDENT: Leave is granted for one minute.
Senator McALLISTER: I'm actually very confused as to why the Greens won't support this motion. I worked my way through it and it looks like the sort of motion that a greens party might support. It criticises the Prime Minister's funding plan for cutting $17 billion from school education. It calls on the government to implement a full needs based funding model. It notes the importance of elected representatives listening to their communities. I just wonder what exactly it is in this motion that the Greens can't bring themselves to support. Actually what they could do is stand up and tell us the specific provision, but the truth is that we all know the answer. The reason is that Senator Rhiannon supports this position. This is the text that was supported by the inner-city Greens. This is the text that was circulated by Senator Rhiannon, and this is why they can't bring themselves to vote for it.
Question agreed to.
MATTERS OF PUBLIC IMPORTANCE
Family Court
The DEPUTY PRESIDENT (16:20): I inform the Senate that at 8.30 am today six proposals were received in accordance with standing order 75. The question of which proposal would be submitted to Senate was determined by lot. As a result, I inform the Senate that the following letter has been received from Senator Burston:
Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:
The need to finalise the terms of reference to the Australian Law Reform Commission for the review of the Family Law Act and its judicial administration, and the allocation of sufficient funding to support that review.
Is the proposal supported?
More than the number of senators required by the standing orders having risen in their places—
The DEPUTY PRESIDENT: I understand that informal arrangements have been made to allocate specific times to each of the speakers in today's debate. With the concurrence of the Senate, I ask that the clerk set the clock accordingly.
Senator BURSTON (New South Wales) (16:21): Nelson Mandela once stated there can be no keener revelation of a society's soul than the way in which it treats its children. What does it say about us as a society when we allow so many men and boys to commit suicide, an entirely preventable outcome? Why do we provide almost no support for males? Why do we provide almost nothing for male victims of domestic violence, preferring to sweep it under the carpet along with male suicide rates? Why do we continue to cling to the paradigm that men cannot love their children as much as women can and do?
One Nation recognises and appreciates the unique and exceptional role that both mothers and fathers play in the lives of ordinary Australian families. However, the history within the Family Court of Australia has been marked over many years by controversy and criticism regarding the handling of family law matters, particularly domestic violence issues; the long waiting times; and staff shortages. Further, the Department of Human Services organisation the Child Support Agency has a long history of financially gutting non-custodial parents in a relentless strategy that seems aimed at rendering their victims insolvent.
The legislation is fairly sound and does not need to be changed much if applied correctly and fairly. The problem is it often is not applied fairly. It is not a gender issue but, because the majority of non-custodial parents are fathers, men usually end up being the ones most affected by the actions of this group of individuals. At a societal level, one of the unintended side effects of marriage breakdown is the high incidence of suicide. It is one of the most pressing issues of our time and predominantly impacts males. It depletes our productivity and destroys families. It cannot totally be eradicated, but it can be substantially reduced.
For many years the Family Court of Australia has been in effect a constitutional free zone. Today we see tens of thousands of Australian children being allowed or forced to experience such abhorrent trauma at the hands of the Family Court. Many children are growing up without one of their parents or other loving family members. Often children are forced to live in a psychologically abusive environment as a direct result of the actions or inactions of our adversarial Family Court system. In addition, many more are left in physically abusive environments by a system that does not have the expertise to make the life-changing decisions that it makes each and every week.
While it is a sad and unfortunate reality that relationships do break down, it is vitally important that we find the best way forward in dealing with marital breakdowns to minimise the damage, particularly to children. Throughout our Family Court system, our children are being forcibly removed from innocent parents and grandparents on false allegations every day in Australia. Some of these children are being forcibly adopted while children in need of intervention and protection are being ignored and left in unsafe environments to suffer further harm. The child safety authorities in Australia are not being held accountable for their actions, and this breeds incompetence and corruption. Families in need of support are not being given the help they need and their families are being ripped apart, resulting in unnecessary trauma.
The Family Court of Australia, as it operates today, is not a safe place for parents, who care about their children, nor is it a safe place for children. One Nation considers that the current family law system needs an overhaul, and we welcome the current announcement by the government to review and reform the Family Law Act 1975. However, in saying that, I think there is an urgency to finalise the terms of reference to the Australian Law Reform Commission for this review to progress immediately.
Senator KITCHING (Victoria) (16:26): I rise to speak on Senator Burston's matter of public importance. We do agree this is a significant issue that does need to be looked at. We would look at the statement from the Attorney-General, Senator Brandis, at the time of the May budget this year, when he asked the Australian Law Reform Commission to review the Family Law Act 1975. I would note they do say that this will be the first comprehensive review of the family law system since the commencement of the Family Law Act in 1976 and that this is a necessary examination of that system. So, it's not only for frontline family law services but also for family violence services. I do question, as Senator Burston does, whether the government is taking this seriously. No further announcements have been forthcoming, other than Senator Brandis saying on 20 August that the terms of reference would be announced soon—but no further detail.
I would also note that, on Thursday last week, at the state memorial service for Australia's first Minister for the Prevention of Family Violence—Fiona Richardson, who was also the Victorian Minister for Women—the Commonwealth Minister for Women did not attend that state memorial service. She may well have had other duties to attend, but it was a shame that she couldn't be there. Fiona Richardson made a great contribution in this space. The royal commission that the Victorian government held in this area was of great importance, and Senator Burston may well be aware of that royal commission.
In relation to the timing, I think this has fallen by the wayside. Since May, we haven't had any announcement other than it will be soon. The Family Law Act was a great reform of the Whitlam Labor government, and we believe that the act has generally worked well. It may well be that, after 40 years of the act's operation, there will be aspects of the act that do merit review. There are serious issues relating to family and domestic violence and to the capacity of the Family Court to deal with the backlog of cases that it has, and the ALRC might well usefully examine that backlog.
I want to go to a particular part of the funding, which is around the parenting management hearings. One of the problems is that what that might actually be has been a little vague. It has been budgeted for $12.7 million. It has caused great confusion in the legal fraternity. As senators would be aware, there are many family law practitioners, so they specialise in that area of the law. They are very confused about exactly what a parenting management hearing will be or what it might entail. It also appears that some government members, and perhaps even the Attorney-General himself, are unclear about this measure. He described it in his media release after the budget announcement as being 'a forum to resolve simpler family law disputes between self-represented litigants'. However, during Senate estimates, Senator Brandis said that he wanted to deal with the most difficult and intractable of those matters that come before the family law system—children's matters at the start. The member for Corangamite has also given some form of definition to 'a parenting management hearing', and that is that they would not include contested matters. But, in his media release, the Attorney-General said:
… those managing the hearings will run inquiries and gather evidence to inform their decisions.
The description in the budget papers says that parenting management hearings 'will be given powers to make binding determinations'. However, during Senate estimates, Senator Brandis said that determinations will need to be embodied in a consent order, so you can see why family law practitioners and litigants alike might well be confused. If the determination of this parenting management hearing is embodied in a consent order, as Senator Brandis suggested during estimates, before it becomes binding, then it won't have much weight. Parents would essentially have to agree with the determination after the hearing and then sign a consent order confirming that they agree. I just can't see that working in the family law system.
Part of the other problem has been that when judges in the Family Court have retired they have not been replaced. There are currently a number of judicial vacancies in the Family Court and the Federal Circuit Court. That is inexcusable, and it's a disgrace. The reason for that is that you can't complain about the fact that there are all these matters not being dealt with and, when it's within your purview to actually replace judges, then not do so. I do think that the Attorney-General has made this situation worse. The family law system has become worse because we have, of course, seen his attack on free legal assistance, the resisting of cross-examination reform and the creation of crushing backlogs in the work of a court system. So, really, to say that this money and this budget measure is going to save the family law system is a little galling, to be frank.
I think the Attorney's own inexplicable failure to appoint judges to vacant positions is causing ongoing pain to families, and this terrible situation is not fixed by any measure of any budget announcement. There are five vacant positions. Because of the delays in appointments, some families are having to wait up to three years to even have an initial hearing for their cases. For a child caught in a custody dispute, that can be a lifetime. Remember, this is a judicial system that is really trying to put the child at the centre of those hearings, so this is a total systemic failure of this legal system. There may well be, also—this is also unclear, and perhaps the Australian Law Reform Commission may look at this as well—a quasi-judicial panel of counsellors, lawyers and social workers who will be given the power to investigate custody disputes and make binding rulings. There's no information, however, available as to how these appointees will be accredited, how the system will be regulated and what safeguards would be in place to ensure the hearings are run responsibly. We would be concerned that the decisions would only be reviewable by the Federal Court, which does not normally deal with family law matters. Part of the problem as well of that is that the scale costs can be prohibitive in the Federal Court.
Parents would not be permitted legal representation at the parental management hearings, so this would be a serious concern for about one-in-five family law matters where domestic violence is involved. As you can imagine, people who are going to hearings that involve their partner, at the hands of whom they may have suffered domestic or family violence, are put in a terrible position if there is no safety net or no representative. They are dealing naked, as it were, with their partner or their former partner, who may well have committed acts of family violence. This is also a concern, obviously, for children involved in those cases and those situations.
One of the simpler solutions, of course, would be to appoint more judges, and this is a very easy solution for an Attorney-General to effect. At the very least, the longstanding vacancies should be filled. We would welcome an Australian Law Reform Commission inquiry. We feel that there would be a number of responsible submissions and that it would address gaps in the act that weren't so readily seen when the Family Law Act was first introduced and legislated. (Time expired)
Senator IAN MACDONALD (Queensland) (16:36): I thank Senator Burston for raising this matter of public importance regarding the Family Law Act, because this is of course an ongoing matter of great public importance. Having said that, I might say to the mover that it is perhaps a fraction early or a fraction superfluous, because the terms of reference for the Australian Law Reform Commission's review will be announced by the end of this month. So, whilst this debate today will signify the urgency and that this chamber appreciates the need for this review, it is happening and will happen.
I will just mention that this is an area to which the government has given a lot of attention. In May this year $26.8 million was announced as a package of measures to provide additional support for our family law system. That comprised $12.7 million to establish the parenting management hearings, $10.7 million in new funding for the family law courts to engage additional family consultants, another almost $3½ million to expand the domestic violence unit's program and, as I mentioned before, the comprehensive review of the family law system to be done by the Australian Law Reform Commission. The government will be directing the commission to undertake the first comprehensive review of the family law system since the commencement of the Family Law Act.
I'm one of the few, in my case former, practitioners who still remember the old Matrimonial Causes Act, which pre-dated the Family Law Act. I remember that to get a dissolution of a marriage in those days you more or less had to crawl through a window with a camera to catch people in compromising situations to substantiate the cause for the dissolution of the marriage. Anyone who practised in that area at that time—not that it was a big part of my practice—had to do those things or engage private detectives to do it.
So, the Family Law Act was an improvement, but I smile to myself these days when I hear of the complexity in the family law system, because originally Mr Whitlam announced that this was to be a system in which you didn't need lawyers. In fact, there were, I think, rules—or if not rules it was certainly talked about—that lawyers would be banned from dealing with the Family Law Act, because it was to be something whereby the parties would get together with some counsellors and everything would be solved and questions of divorce and settlements and particularly children would all be worked out in a collegiate manner. But of course that didn't happen. Practitioners in the field today tell me this is one of the most complicated areas of law and one that does, as has been mentioned, engage the courts in a huge amount of time. It has been mentioned that there are judges awaiting appointment. Senator Brandis rightly addresses this at estimates. It's always raised at estimates. Senator Brandis has given indications of appointments being made and, in some cases, the reasons they have not been made. I know that this is foremost in Senator Brandis's mind and that appointments will continue to be made as appropriate and as necessary.
This review will focus on ensuring that the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse. I guess these problems were always around but it does seem to me that we as a society are less tolerant and less concerned, and less able to adjust our own behaviours, to ensure that we can live with people who we have entered into a legal arrangement with, and the children who are the offspring of those arrangements. It just seems that society has got worse and worse and worse when it comes to the breakdown of relationships and the way children are treated. After the Family Law Act had been in place for some time I did a little bit of family law work but quickly got out of it because I couldn't, even in those days, cope with the fact that many parents would use the children simply as a weapon to attack the other party. It's a very difficult area of law and it can be quite emotional. What has gone wrong with society as a whole is perhaps more the question we should be asking in debates like this one. The more 'relaxed' lifestyle we have, the less tolerance we have for discipline and the norms of life, seems to breed these situations where, unfortunately, many families, many children, live in crisis, and one can only think that society has gone backwards.
I return to the budget measures. Additional funding of $14 million over three years will be provided from the Public Service Modernisation Fund to transform and digitise processes for the Federal Court, the Family Court and the Federal Circuit Court, including lodgement of case management, ensuring the courts' ongoing financial sustainability. These improvements in the processes we hope will deal with the backlog in the Family Court. The government is committed to ensuring that family courts have the resources they need to provide access to justice and to help families resolve their disputes with a minimum of delay. We continue, as a government, to monitor the ongoing resourcing and funding of federal courts to ensure that families are supported in difficult times. The Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court are responsible for allocating available judicial resources, and I know that's something that is often raised in the budget estimates, rightly, by senators who have indicated an interest in this area.
Prior to the 2015-16 budget, family courts were projecting massive deficits of more than $44 million over the forward estimates. Without the 2015-16 budget rescue package, major cuts to frontline court services would have been inevitable. There have been ongoing savings from new administrative arrangements, and the government is pleased to note that almost $10 million over six financial years to 2020-21 and $5.4 million annually after that time are being reinvested. These are savings made by government initiatives. They are being re-invested into the federal courts to enhance their capacity to provide services, particularly in family law.
Again, I say thanks to Senator Burston for raising this important matter in this matter of public importance debate. But, as I say, the basis of the motion before the Senate is to finalise the terms of reference for the Australian Law Reform Commission's review. That is happening as we speak. I'd be very confident that, within the next few weeks, those terms of reference will be published and the commission can start its valuable work.
Senator URQUHART (Tasmania—Opposition Whip in the Senate) (16:45): I rise to make a contribution to this matter of public importance debate on a proposed review of Australia's Family Law Act 1975. It should come as a shock to no-one in this place that the family law system in Australia is in crisis after four years of inaction and underfunding from the Abbott-Turnbull governments. After four years of attacking free legal assistance, resisting cross-examination reform, failure to appoint judges and creating crushing backlogs in the work of the court system, the Attorney-General had a self-proclaimed reinvention as the saviour of the Family Court system in May of this year. As part of this reinvention, the Attorney-General announced a review of the Family Law Act by the Australian Law Reform Commission and, somehow, it's taken five months to write the terms of reference. Without doubt, the Family Law Act and its administration are extremely complex and it is vital that the terms of reference are comprehensive and wide-ranging. However, if the development of these terms of reference is taking a long time then for Senator Burston to rush in here and condemn the government for its inaction on a review that has a preliminary reporting date of the end of next year is up there in typical One Nation antics in this place.
I noticed that two weeks ago the Australian Financial Review reported that the government would release the terms of reference shortly. It has been advised that the government has delayed the commencement of this review as it wanted to give priority in the Law Reform Commission's workload to examining Indigenous incarceration rates. I note that submissions for the inquiry on Indigenous incarceration rates closed today, and it has an expected reporting date of 22 December this year. While there is a good argument that the Turnbull government should adequately resource the ALRC to conduct at least two important inquiries simultaneously, if there are workload issues within the ALRC then it is vital the current matter is not rushed—and that is investigating what is an unambiguous national tragedy. The ALRC has the time and resources to conduct a thorough inquiry and make what will no doubt be very important recommendations on how we treat our first peoples both directly in relation to the justice system and indirectly that may lead to issues with the justice system later on.
On the Family Law Act, without doubt family law and the functioning of our Family Court system is an important topic to debate. However, it appears the spirit of Senator Burston's matter of public importance is premised on rushing a review that actually needs to be wide-ranging and thorough. This review needs watertight terms of reference, not ones that have been slapped together to suit the One Nation agenda. With the passage of the Family Law Act in 1975, Australia's family law system is over 40 years old. On the whole, it has served us well. But, as with all legislation and government programs, it is timely for a review to be held to address areas that are causing delay, distress and poor outcomes.
I note that, since 1975, the act has grown and become more complex. For example, part VII of the act, which deals with children's matters, has increased from 2,700 words to more than 47,000 words, while the whole act is now comprised of 15 parts, 125 sections and countless subsections. With the size and complexity of the Family Law Act, there is no doubt that a review is timely. Indeed, many judges and legal academics have written on the laws' complexities and the need for reform. I note that a 2015 article in the journal Australian Family Lawyer was titled 'Deciding parenting cases under part VII: 42 easy steps'. I have read many guides and articles over the years, but I've never heard of 42 steps to resolve an issue being described as easy!
This headline demonstrates the lengthy pathway required within the current legislation, which erodes the valuable time of judges and places considerable pressure on children, parents and families. The author of the article described the legislation and its 42 easy steps as a complex and impenetrable legislative scheme. Disturbingly, another former justice wrote in the same edition of Australian Family Lawyer that the current family legislation is commonly misunderstood by litigants, and parties may well be settling parenting disputes in the shadow of a misunderstood law.
It is fair to say that the Family Court is reaching a crisis point. Some families have to wait up to three years to have even an initial hearing for their cases. For a child caught in a custody dispute, that can be a lifetime. So, what has this government done for four years? Instead of getting on and appointing new judges when vacancies arise, the Attorney's great idea in this year's budget was to introduce quasi-judicial parental management hearings. Without any consultation the Attorney proposed that a panel of counsellors, lawyers and social workers have the power to investigate custody disputes and make binding rulings. Parents will not be permitted legal representation in these hearings. Such a hearing is completely inappropriate in the one in five Family Court cases that involve domestic violence.
It is Labor's position that custody battles are one of the most complex and serious elements of family law and should remain in the hands of judges. I remind the chamber of those 42 easy steps. If the complexity of the current Family Law Act is aggravating the difficulty faced by all the parties in the dispute, then the last thing Australian families need is for a quasi-judicial panel of lawyers, counsellors and social workers to hold hearings without judges and without the presence of private counsel.
It is worth briefly examining some proposals from One Nation in the lead-up to last year's election. It is interesting that these policies no longer appear on the One Nation website. First of all, One Nation proposed abolishing the Family Court and replacing it with what they called a 'family tribunal'. The members of the tribunal would consist of mainstream Australians from local community groups with no expertise in mediation, counselling, family law or referrals. Critically, mediation is already the mandatory first step before filing an application in the Family Court or Federal Circuit Court. Family relationship centres have been around for over a decade. As the first point of entry they offer expert mediation and referral services for separating couples. The quasi-judicial panel aspect of the new parental management hearings proposed by the Attorney-General looks, at face value, to be similar to the One Nation policy. I am sure that Australians will be interested if the Attorney took inspiration from One Nation with this policy.
Secondly, One Nation proposed joint custody as a standard when children are involved. It is important to note that under part 7 of the Family Law Act children have many rights. Parents have none—parents have duties and responsibilities but no rights. The decisions are always made in what is the best interests of the child. Rather than mandating a specific joint custody split, it is best for an experienced judge to examine the facts and make a determination.
In comparison, at the last election Labor made a number of commitments that would make a practical difference to families. Those include increasing the number of judges, to provide for more timely determinations of matters in the Family Court; reforming family law to ensure that victims of violence are protected from being directly cross-examined by their abuser, so that they are not re-traumatised by the court process—I note that the Attorney-General proposed amendments in this space a few months ago; and delivering an additional $88 million to fund safe housing for women escaping domestic violence, so that women are not turned away from refuges, as happens in many places around the country today because there simply are not enough places.
In closing, it is my hope that the terms of reference, when they do eventually arrive, propose a comprehensive and wide-ranging review of the Family Law Act. It is clear that One Nation's opinions in this space are dangerous and ill thought through. They will do nothing to improve the functioning of our family court system and do nothing to improve the lives of the many children who are facing immense trauma through their parents' separation.
Senator ABETZ (Tasmania) (16:55): The Family Law Act 1975 is one piece of legislation with which you do not want to interact. If the Family Law Act becomes relevant to your activities, you know something has gone wrong—terribly wrong. Family law disputes often expose the rawest of emotions, the deepest of personal hurts and the worst of human behaviours. Disputes lead to the loss of contact with your own flesh and blood and with your children, loss of business and employment, suicide and even murder. In fact, sadly, the history of the Family Court of Australia has shown that judges themselves are not immune to the latter.
Whilst practising as a lawyer, I saw the lot. As people grapple with their interpersonal grievances—sometimes egged on by unscrupulous lawyers, family members and friends—perjury with false, horrendous allegations seems to become the stock in trade. Make no mistake, it's not easy to legislate in this minefield of emotions, grievance, hurt, and betrayal. By its very nature, legislation is a one-size-fits-all approach. To seek to regulate and legislate in this fraught area, which exposes the frailty and fallen nature of human kind, requires the wisdom of Solomon on steroids. Legislation drafted—as it is—by people will never be perfect. Loopholes will be found and oversights will be uncovered, together with provisions that were well-meaning but have unintended consequences. Any parliamentarian worth their salt will have received representations on the perceived, if not actual, failings of the Family Law Act and its administration.
So, having said all that, it is appropriate that there be a full review of the Family Law Act and the family law system. The coalition government, in recognition of these factors and community representations indicating concern about the Family Law Act and its administration, has initiated the first comprehensive review. The task has been given to the Australian Law Reform Commission. I wish it well. I note that domestic violence and child abuse are going to be key areas of this review. Both are a blight on our society. As someone who helped establish, and was honorary legal adviser to, a women's shelter for a number of years, I saw many a victim of these vile activities. They are often life-wrecking and, indeed, life-threatening. The consequences cannot be overstated.
Sadly, in this area we also have opportunists who are willing to make serious allegations to intimidate, to get the upper hand and to avail themselves of a bargaining tool. These allegations are often thrown around like confetti in the family law system. Protection of women and children should rightly be a high priority of the system, and it's been designed to protect the vulnerable. Yet, the cynical abuse of such priority provisions undermines the very integrity of the system, gives it a bad name and demeans the issue. Specific provisions and penalties for false claims may be worthy of consideration. It would reduce perjury and help protect actual victims. Too often, initial allegations, which usually are against the father, are simply 'not pursued' or are allowed to be dropped—the tactical purpose having been achieved, or used as a bargaining chip for a later property settlement.
Having said all that, let's remember that most families are functional, that their dads and mums do a great job and won't need the family law system. But this discussion—a very worthy one, might I add, and I thank Senator Burston for bringing it forward—is a reminder that, as a government and a parliament, we should do everything to keep our families together. As that great Tasmanian, Dame Enid Lyons, so pithily opined:
The foundation of a nation's greatness is in the homes of its people.
To keep our families together, we need to relieve them of the scourge of unemployment and we need to keep household budget pressures down by providing them with reliable and cheap energy—just to mention two examples.
We need to salute the role of families as well, including fathers, so we need organisations like Free TV to desist from banning TV advertisements because they celebrate the role of fathers. To suggest that the recent advertisement by Dads4Kids required authorisation defied any logical explanation. Those wonderful advertisements, extolling the importance of fathers in the lives of their children, have been graciously run as a community service announcement for 15 years. Now we are told Free TV didn't ban them; they just required authorisation. With authorisation goes the free airing of the advertisement, thereby effectively banning them, given the charity clearly does not have that sort of money. So Free TV didn't ban them, they just used the system to ensure that they can't afford to run them.
Dads4Kids is known to be against changing the definition of marriage. Belatedly, Free TV, desperately trying to justify the unjustifiable, claimed this was the reason for requiring authorisation, because if someone went to their website they might stumble upon a submission supporting marriage as a man-woman bond, which was made to a parliamentary committee some years ago. By that standard, from now on can we expect Qantas advertisements to be required to carry authorisation as well? I dare say not. That is where Free TV has a lot of explaining to do. This unacceptable bias against Dads4Kids needs to be called out for what it is: political correctness gone mad, and another none-too-subtle attempt to punish those who are concerned about the consequences of changing marriage.
Suffice to say, it is overwhelmingly the fathers that claim systemic bias against them and their important role when it comes to the administration of the family law system. Often the claim is that fathers are not treated with any recognition whatsoever other than when it comes to maintenance, and then their importance is all of a sudden overestimated. Again, I stress, say and note that the vast majority settle these matters relatively amicably, but there have been—and there are—cases where livelihoods have been ruined and debts amassed, in circumstances where a better administration of the law may have led to a less charged situation.
Let's recognise that family law deals with the most intimate of relationships, the rawest of emotions. It is therefore wise for there to be a review of the Family Law Act and the system in which it operates. That is exactly what the government is undertaking with its commissioning of a root-and-branch review of the family law system. I trust the operation of the Child Support agency will be included in that. I'm sure that every senator in this place has had numerous representations in relation to the agency. I simply say that when I started in this joint 23 years ago the number of complaints was huge in comparison to now, so you can imagine how bad the system was then.
Soon this review will be underway, and I encourage everyone to submit their experiences, concerns and suggestions. To have a better functioning family law system would be a social good and an economic good. It would enhance our legal system's reputation. It would be fairer and more just to the individuals involved if we could reduce the conflict and the opportunity for inflaming this emotionally charged area. I congratulate the government on this initiative and I wish the Australian Law Reform Commission well in its endeavours.
Senator HINCH (Victoria) (17:05): When I was a print, radio and television reporter and commentator, before I jumped the shark and came here, I received hundreds, maybe thousands, of emails. There were two words that you dreaded in an email detailing family problems or legal scandals. Those two words were, and still are, 'Family Court'. It meant, as a journalist, there were legal areas you couldn't touch and stories you just couldn't touch, even though there were details of children going through hell as their mothers and fathers fought their way through the Family Court; children being treated like pawns in a game of heartbreaking and cruel human chess; hard-earned savings and assets disappearing, lost to the lawyers as cases dragged on for years. These days, with a shortage of judges and two out of three marriages ending in divorce, some cases don't even get to court for three years. Ultimately it is the children of these families that go to court who are being hurt the most. These prolonged delays result in uncertainty and instability in the lives of mere children.
We all know the family law system is broken. This information is not new. Unless there is significant reform, the family law system will remain broken. We need this review. That is why I offer the Justice Party's full support for a fully funded review conducted by the Australian Law Reform Commission. I have met personally several times with the Chief Justice of the Family Court, Chief Justice Bryant, and she has echoed many of our concerns. I'm hoping that when she retires in a couple of months time she'll echo some of them even more.
I know the government has budgeted for some more court registrars, but that's not enough. I know that several national parties, including One Nation and the Justice Party, have been pushing for a royal commission into the continuing failures and frailties of the Family Court system. I know I criticised Pauline Hanson at the Melbourne Press Club last year, not because of her fears about court failings—as though her fears weren't well founded—but because she was advocating the abolition of the Family Court, to be replaced by a citizens' tribunal. I opposed that and still oppose it on the grounds it would be unconstitutional. That veteran child protection advocate Hetty Johnston, the founder of Bravehearts, has also called many times for a royal commission into the family law system. When she heard this morning that this issue was going to be raised here today, brought on by One Nation, she texted me and said: 'Get stuck into them, Derryn. I'm speaking right around the country these days, and I never miss a chance to get stuck in. Brandis lied to me and to every child in this country when he said he "couldn't" have a royal commission because of the Constitution, when the truth was that he "wouldn't"—and that's not good enough. The government, I believe, lied to every child in this country, and they stole the futures of many, many thousands of them in refusing to have this royal commission. So don't let the government off the hook. Children's lives literally are at stake, Derryn. This is no time for niceties. Let them have it.'
So I would say today that, in the absence of this much overdue royal commission, this Law Reform Commission review is the next best thing we can have. To be effective, this review, conducted by the Australian Law Reform Commission, needs to have specific but broad-ranging terms of reference and must be sufficiently funded. For that reason, and those reasons, I back this proposal.
Senator HANSON (Queensland) (17:08): I congratulate Senator Burston on raising this issue today in matters of public importance. It is very dear to my heart. I hear Senator Macdonald say, 'It's a bit late—we've actually got the review going'; or Senator Urquhart gets up and says, 'This is just basically political grandstanding by One Nation and it was going to happen and we don't want to rush this and slap it together.' Slapped together? It has been 40 years since the Family Court was introduced. Nothing's happened. Then Senator Urquhart blames the coalition for not doing anything in the last four years since they've been in government in this place. Then I could ask the question: what has the Labor Party done about it? Absolutely nothing!
Australians have been screaming from the rooftops to have something done about the family law courts. It was quite interesting when Senator Abetz mentioned the number of complaints that came across his desk 23 years ago —it was the same thing with me. More than twenty years ago in this place, in 1996, I raised the family law court in my maiden speech. I raised it again in my maiden speech 20 years later in this place. The family law courts are very important to me, and this has had devastating effects on many families across this country.
The reform of the Family Law Act, and the family law court generally, is of primary importance to me, One Nation and my colleagues. In this regard, I have held a number of meetings with the Attorney-General. At the first meeting with the Prime Minister, I raised the Family Law Act, putting forward proposals that might alleviate the cost, the delay and the heartbreak that is symbolic of actions before the Family Court of Australia and the Federal Circuit Court of Australia in its application of the Family Law Act. I have met with the Chief Justice of the Family Court and numerous interest groups, including the Law Council of Australia, who have presented their concerns as well as potential solutions.
It is a complex matter dealing, as it does, with volatile, emotional family issues that often affect the lives of children. Too often one hears of another tragedy, another domestic-violence incident, another lost life or another family torn apart by division. Domestic violence orders are mainly issued in the various state Magistrates Courts and often are used simply as a tool by one parent to stop the other parent having access to their children. Yes, it's quite disgusting! Parents use their children as pawns and vengeance against the other parent. Often they are abusing our court process. A party can make allegations of abuse to the police, and the police will normally take out a domestic violence order against the accused parent. The domestic violence order is often used as a weapon of vengeance by litigants to the detriment of the other parent as well as their children by denying that parent access. But the police have little choice when confronted with claims of abuse. They have an obligation to protect the vulnerable, as we all appreciate, but often there is a very low standard of proof required before such an order is made. Once made, it is on the record, and that record is given serious consideration by the courts in reaching its determination on parental access orders.
In this review of family law, the issue of domestic violence orders for parties currently before either the Family Court or the Federal Circuit Court must be taken into consideration, as is the case in Western Australia. By doing so, orders are given by judges who are familiar with the litigants and who are better placed to understand the true motive behind such an application. Equally, that judge is always in an informed position throughout the matter. Therefore, it is incumbent on the government to provide the necessary funding for the appointment of further judges as well as for doubling the number of registrars to hear these applications as fast as possible. It is incumbent on this government to ensure that equal access for both parents is not simply a section in the act as a primary premise but is carried out in court decisions.
It is incumbent on this government to end the excessive delays caused by underfunding of the courts. The time delay between the filing and commencement of a trial in the Family Court averages 18 months in most capital cities and an incredible 24 to 36 months in Sydney, Parramatta and Brisbane. The Federal Circuit Court of Australia is worse, and this is a court that was meant to overcome delays in the Family Court.
The entire Family Law Act and its administration must be reviewed with a fresh outlook, without being mired by the past. The urgency of finalising the terms of reference for the Law Reform Commission is paramount. Those terms of reference must be in conjunction and consultation with all parties and interest groups and not at the sole discretion of the Attorney-General.
It is time for politics to be put aside and for every political party to agree to work for a substantive review of family law for the betterment of the Australian society—because the family is the most important element. Not finalising the terms of reference immediately will only prolong these family issues, creating further pressure on government departments and the courts generally. For the Law Reform Commission to successfully undertake this major review, the Attorney-General must make the necessary funds available; otherwise, the review will not happen in the foreseeable future. I will ask the Attorney-General to finalise the terms of reference and to undertake to provide the funding that is necessary for the success of this overdue review.
Let me add in this debate that, apart from the many Australians that I meet when I move around Australia, this is a personal matter for me as a mother and as a grandmother. I've been through the court systems, and I've had to watch my sons go through the family law courts and how they were treated by their ex-spouses. I've seen DVOs put on them that were not warranted. I feel for the men out there that are going through this, because it's unjustified. They have no recourse, they are missing seeing their children and they are devastated by it to the extent that they suicide. How many men do we know that suicide because of this? They are heartbroken. That is their children's world. Not only that but we have a legal system that is making, according to the figures that I've heard, possibly as much as $40 billion a year out of the family law courts.
They talk about terms of reference, saying, 'We don't want to rush into this.' I have spoken to Senator Brandis quite extensively, and to judges. What really needs to be done? We need more judges. The judges that are on sick leave? It is not good enough. These judges are not being replaced. They're on long sick leave, and the court system is suffering because of it. We need more registrars to actually take the workload off the judges and have their input into the mentions, which will alleviate the pressure on the courts. DVOs need to be addressed as well and heard in family law courts, not other courts, so that the judges have a clear understanding of the litigants.
I do believe that prenuptial agreements should be drawn up and presented before the courts so that both parties will have an agreement about their properties and also about their children.
We need more centres so that, once the courts allow supervised visits, we don't have organisations like Relationships Australia denying men access to their centres, as I know can be the case. But, also, the fact is that men—or women, on the odd occasion—should not have to wait months before they can actually see their children. I think it's disgraceful, and I know of cases where they only see their children for a few hours a year.
Also, legal aid needs to be addressed. People cannot afford these costs, and they are actually trying to represent themselves in these courts.
I finish on this note. Everyone's screaming for marriage equality. Well, how about divorce and parental equality?
The ACTING DEPUTY PRESIDENT ( Senator Reynolds ): The time for this discussion has expired.
PARLIAMENTARY ZONE
Proposal for Works
Senator PAYNE (New South Wales—Minister for Defence) (17:19): In accordance with the provisions of the Parliament Act 1974, I present proposals for works within the Parliamentary Zone relating to the installation of two new signs at Questacon, the extension of the International Flag Display and upgrade to existing lighting and the installation of 40 timber bench seats at Commonwealth Place jetties. I seek leave to give a notice of motion in relation to the proposals.
Leave granted.
Senator PAYNE: I give notice that, on Thursday, 7 September 2017, I shall move:
That, in accordance with section 5 of the Parliament Act 1974, the Senate approves the following proposals by the National Capital Authority for capital works within the Parliamentary Zone:
(a) installation of two new signs at Questacon;
(b) extension of the International Flag Display and upgrade to existing lighting; and
(c) installation of 40 timber bench seats at Commonwealth Place jetties.
COMMITTEES
Economics References Committee
Government Response to Report
Senator PAYNE (New South Wales—Minister for Defence) (17:20): I table a document relating to the order for the production of documents concerning the government's response to the report of the Economics References Committee on the future of Australia's automotive industry. I seek leave to have the document incorporated in Hansard.
Leave is granted.
The document read as follows—
Australian Government response to the Senate Economics References Committee Report: Future of Australia's Automotive Industry
September 2017
Economics References Committee
Future of Australia ' s Automotive Industry
Government Response
The Australian Government welcomes the Economics References Committee (the Committee) Report into the Future of Australia's Automotive Industry and thanks the Committee for its considered report. This response outlines the Government's view on the Committee's recommendations contained in the final and interim reports.
Automotive passenger vehicle manufacturing has been a great part of Australia's economic and social history. It has been a significant contributor to employment, to regional economies, to research and development and to Australia's exports. And it has long received bi-partisan support from Governments. The automotive passenger vehicle manufacturing sector received $18.4 billion from 2000-01 to 2014-15 through tariff protection and budgetary assistance1. This includes around $1.7 billion in assistance from the Automotive Transformation Scheme (ATS) to date, while the total automotive assistance including through its predecessor the Automotive Competitiveness and Investment Scheme since 2001, is $7 billion.
However, things changed with the decisions by Toyota (announced 10 February 2014) and Holden (announced 11 December 2013) to end their automotive vehicle manufacturing in Australia by the end of 2017, following Ford's earlier decision (announced 23 May 2013) to wind up manufacturing in 2016. Toyota and Holden have since confirmed the dates they will cease manufacturing as 3 and 20 October 2017 respectively. The manufacturers cited the then high Australian dollar, a highly competitive market and relatively small production volumes for their decisions. All three manufacturers have plans to continue an Australian presence through their other automotive industry activities such as national sales and distribution, as well as engineering services and design/product development. Toyota will maintain around 150 highly skilled engineering and technical roles in Victoria, in addition to over 1200 sales and marketing positions. This is on top of the 1750 engineers, designers and technicians retained by Ford in Victoria and the 300 to 350 design and engineering jobs GM Holden will retain post 2017.
The future of manufacturing in Australia lies in these kind of value-adding activities, from product concept, research and development, design and production to distribution and after-sales service. Australia must remain competitive as manufacturing around the globe undergoes major transformation. The Australian Government has been on the front foot of this transition to advanced manufacturing, firstly through the successful $155 million Growth Fund, and now with the announcement of the new $100 million Advanced Manufacturing Fund which will boost innovation, skills and employment in advanced manufacturing as industries transition following the wind-down of vehicle manufacturing. The new fund will help car-related businesses move into other industries and fund tertiary engineering courses and research into manufacturing techniques.
The Advanced Manufacturing Fund will include the following elements:
$47.5 million for a new Advanced Manufacturing Growth Fund, committed over two years, to provide matched funds of up to a third of the cost of capital upgrades to establish and expand high value manufacturing in South Australia and Victoria;
$4 million for the Advanced Manufacturing Growth Centre, committed over two years, to support small scale and pilot research projects in advanced manufacturing, benefiting small firms and early stage researchers, allowing them to quickly move to larger scale research or commercialisation;
$20 million under the Cooperative Research Centre – Projects initiative, committed over two years, for larger scale advanced manufacturing research projects of up to $3 million in funding over three years;
$10 million to establish Innovation Labs in South Australia and Victoria to serve industry in a variety of roles including test centre facilities and business capability development, delivered through existing government services like Entrepreneurs' Programme, Industry Growth Centres and Austrade;
$5 million to maintain engineering excellence by investing in student research at universities, technology institutions and in industry to maintain the flow of highly trained engineers to the automotive design and engineering sector; and
Removing tariffs on imported vehicle prototypes and components used by Australian motor vehicle design and engineering services that operate in a global network.
The Advanced Manufacturing Fund is the latest instalment in the Australian Government's support for the transition of the automotive passenger vehicle manufacturing sector since 2013. The three year window for transition has provided a unique opportunity for businesses to diversify and for workers to reskill. In addition to the $100 million Advanced Manufacturing Fund, there are a variety of initiatives that have supported and will continue to support the Australian automotive industry in its transition, including those workers and businesses affected by the closures.
The Automotive Transformation Scheme (ATS) is a legislated entitlement scheme that provides assistance to registered participants for the production of motor vehicles and engines. The Scheme aims to encourage competitive investment, innovation and economic sustainability in the Australian automotive industry. The continuation of the ATS, as legislated to 2020, will support an orderly transition of the automotive manufacturing sector post 2017. This means, firms who undertake eligible ATS activities, including in the export side of their businesses, can continue to apply for funding during this period.
The Government recognises while in transition, business could benefit from reduced regulatory burden of ATS participation. The Government will review the administrative regulations that impact on businesses transitioning, such as re-registering for the ATS, or changing registration categories from a Motor Vehicle Producer to an Automotive Services Provider, or registering under the national interest provisions of the ATS. The Government understands the time pressures businesses are under, and will consult with ATS participants on how best to reduce the regulatory burden associated with the ATS.
One thing must be made clear though: The decline in demand for locally made vehicles has resulted in a reduction in production volumes. This has seen a corresponding fall in demand for the ATS, so expenditure has correspondingly declined. That has led to calls for the ATS "underspend" to be redirected for other activities, such as funding for other related automotive activities such as caravans and trailers or the aftermarket component makers – sectors their respective industry associations report are growing. The ATS has a legislated cap with expenditure based on claims for eligible activity. Budget provision is made on estimated demand. There is no underspend that can be redirected for other purposes should the legislated cap not be reached, no ATS 'pot of money' to use for non-ATS eligible activities.
Support is already available to these other growing sectors through other Government initiatives such as skills and training initiatives, the R&D Tax Incentive, and the National Innovation and Science Agenda. The Government is focused on getting the economic framework right for further investment and job creation by businesses.
The transition of the sector is complemented by the Government's successful $155 million Growth Fund, developed in response to the decisions by Holden and Toyota to end passenger vehicle manufacturing in Australia by 2017. The Growth Fund is helping automotive workers transition to new jobs, encouraging diversification by automotive supply chain firms, and accelerating new private sector business activity outside of car manufacturing in Victoria and South Australia.
The Growth Fund comprises four elements:
The $90 million Next Generation Manufacturing Investment Programme (NGMIP) which aims to accelerate private sector capital investment in areas of high value manufacturing, in Victoria and South Australia. The programme has resulted in grants worth $87.1 million to 48 firms across both states, for expected investment totalling over $282 million. The funded projects support high value manufacturing across a wide range of sectors, including defence and aerospace, pharmaceuticals, medical devices, precision engineering and engineered timber building products.
Grant recipients in Victoria include Sealite which is establishing a new manufacturing centre for specialist marine navigation aids and aviation ground lighting systems, MiniFAB which is manufacturing medical diagnostic consumables with built-in bio-assays and molecular reagents, and Third Zeton which manufactures road transport tankers.
Grant recipients in South Australia include LaserBond which is producing innovative mineral extraction tool products, Seeley International which manufactures evaporative coolers and air conditioners and Ezy-Fit Engineering which manufactures heavy-duty hydraulic cylinders
The $30 million Skills and Training Initiative funded by Toyota and Holden provides access to tailored support services to help employees transition to a new job, career, their own business or retirement.
The $30 million Skills and Training Initiative, open until the end of 2018, is helping automotive workers find new jobs before they are retrenched. The initiative will provide displaced Holden and Toyota and automotive supply chain workers with access to a range of information services, careers and training advice, skills recognition and training as well as support to find a new job.
Funded by Holden and Toyota, this is primarily assisting their workers, however, Toyota have specifically partitioned $3 million of their contribution for workers in their supply chain.
The $15 million extension to the Automotive Industry Structural Adjustment Programme (AISAP) supports workers who have lost their job in the automotive manufacturing industry, including component suppliers. The AISAP provides retrenched workers with immediate access to intensive employment support, including further training, licences or tickets, to help them find new jobs suited to their circumstances. This type of assistance will be available for affected workers until 30 June 2018.
This complements South Australian and Victorian Government programmes and includes information about jobs in demand in local and regional areas, financial education, careers and training advice, skills recognition and training.
The $20 million Automotive Diversification programme (ADP) assists automotive supply chain firms to diversify, develop new products and processes and expand into new markets. The ADP has generated $51 million in private sector investment over three rounds of grants, announced between March 2015 and March 2016.
Grant recipients in Victoria include Australian Precision Technologies which is manufacturing components for aerospace and defence, Dolphin Products which is producing booster detonator retention items for the mining industry, and Venture DMG which is manufacturing edge-lit light display panels.
Grant recipients in South Australia include precision parts manufacturer Precision Components Australia which is manufacturing heliostat fields for solar thermal power generation, Numetric Manufacturing which is helping to make tail fins for the F-35 Joint Strike Fighter Program, and Quality Plastics and Tooling which expanded its clean room and in-mould labelling facilities to produce thin walled containers for the medical, food processing and cosmetic sectors.
The Australian Government also provided support for Ford workers and component manufacturing supply chain workers through the Ford Workers in Transition project which commenced in June 2013 and concluded in April 2017.
The project complemented Ford and Victorian Government transitional support for Ford workers. Pre-closure, the focus of activity through the project was on job readiness and employability skills through a range of activities. Post-closure, the focus was on the continuation of support services through outreach centres.
Jobs Fairs – connecting retrenched workers with local jobs
As part of the Government's commitment to supporting automotive workers transition into new employment, the Australian Government has run two jobs fairs targeted at Ford workers, impacted supply chain workers, their families and local communities. The Geelong Jobs Fair occurred on 25 July 2016 with around 40 exhibitors and over 600 jobs available. Around 870 job seekers attended this event. The Broadmeadows Jobs Fair occurred on 24 August 2016 with around 50 exhibitors and over 1000 job opportunities. Over 4000 job seekers attended this event.
The Department of Employment will run another six Jobs Fairs across Geelong, Melbourne and Adelaide in 2017 to further support automotive workers.
Following the announcement of the closure of Ford's manufacturing operations, the Geelong Region Innovation and Investment Fund (GRIIF) and Melbourne's North Innovation and Investment Fund (MNIIF) were established. The GRIIF and MNIIF are joint responses by the Australian and Victorian governments, together with Ford and Alcoa, to support innovative, job creation projects that strengthen and diversify their respective regional economies and employment bases. These programmes show that the Government understands that the transition of Australian manufacturing is causing broader shifts in regional areas.
The funds, as initially announced as part of a package to support the regions impacted by Ford's closure from October 2016 were each $24.5 million. In 2014, the GRIIF, comprised of the Australian and Victorian governments, together with Ford, was increased by $5 million following a contribution from Alcoa to support the region affected by its decision to close its Port Henry aluminium smelter and rolling mill in Geelong.
Three rounds of GRIIF funding have been completed with 17 grant recipients undertaking projects supported by funding totalling $26.9 million to create an estimated 818 jobs and leverage over $213 million in total project investment. As at 31 August 2017, 897 new jobs had been created and $129.1 million had been invested.
Two rounds of MNIIF funding have been completed with 20 grant recipients undertaking projects supported by funding totalling $18.8 million to create an estimated 487 jobs and leverage over $92.4 million in total project investment. As at 31 August 2017, 558 new jobs had been created and $86.5 million had been invested.
Automotive Supplier Excellence Australia (ASEA)
Business capability development is an important complement to the Automotive Diversification Program which has been funding capital equipment purchases.
Automotive Supplier Excellence Australia (ASEA) is a national programme established to assist tiers 1, 2 and 3 within the Australian automotive supply base to achieve world-class levels of competitiveness and sustainability. Since 2007, ASEA have worked with more than 120 companies within the automotive supply chain, including some who have set up manufacturing facilities in South East Asia.
ASEA had previously received a $2.6 million competitive grant from the Australian Government up to June 2016 to work with supply chain companies to transition and diversify them outside of the automotive industry.
The Australian Government has now provided an additional $1.125 million in funding to allow ASEA to keep improving and diversifying these businesses up to the end of passenger vehicle manufacturing at the end of 2017. The extension in funding will allow ASEA to work with around 20 further companies.
Manufacturing will continue to be an important element in Australia's industry mix. It adds diversity and depth to economic activities that provide resilience to global and domestic economic changes. It is a supplier and market for other industries, and makes large contributions to research and development, skills and technology transfer, exports, productivity growth and jobs.
The Government is committed to ensuring that our manufacturing industry is internationally competitive and moves in step with the global transition to the smart, value-added and export-focused industries of the future.
Ford ' s Asia-Pacific Product Development Centre (APPDC)
With the cessation of domestic vehicle manufacturing, Ford Australia will now focus on non-sales and marketing activities at its Asia-Pacific Product Development Centre. The APPDC headquarters, located at Broadmeadows, has already evolved into a R&D innovation hub and will serve as the primary product development campus, aiming to accelerate the pace of new vehicle launches and lead consumer driven product improvements. When combined with the R&D Centre at Geelong and the Ford Proving Ground at Lara, Ford Australia has an estimated product development workforce of approximately 1,750 people. The three facilities will continue to design, engineer and test vehicles with leading quality, fuel economy, safety and smart technologies for global markets and customers.
Ford Australia has announced that it has ongoing business with around 63 Australian component suppliers to ensure the supply of service/replacement parts for up to ten years. In addition, around 19 of these local suppliers have earned business within Ford's global supply operations.
Holden
Post 2017 Holden will continue its Global Design centre based at its Port Melbourne headquarters in addition to the Lang Lang Proving Ground to adapt and test imported vehicles for Australian conditions. Engineering work conducted will cover vehicle structures and dynamics, power train specialising in global V6 engines and global emissions calibration, and advanced vehicle development. Holden estimates it will retain around 300 to 350 design and engineering jobs between the two sites.
Toyota
Toyota Motor Corporation Australia's post-manufacturing business model will include a number of strategic automotive R&D functions supporting approximately 150 engineering, design, and technical training roles in Victoria. This includes the dedicated design studio, the expanded vehicle evaluation facility and workshop, the proving ground, the multimedia and connect mobility workshop, and the Toyota genuine accessory engineering centre and workshop.
These functions will specialise in a range of areas including: styling design, software design, heavy duty off road vehicle performance development, benchmarking, and technical and driver training.
The Government is implementing the $1.1 billion National Innovation and Science Agenda (the Agenda) which is a blueprint for building a more innovative Australia, and will position our country to seize the next wave of economic prosperity. The Agenda comprises a suite of initiatives designed to encourage businesses to be more innovative. It is designed to help deliver new sources of growth, maintain high-wage jobs and seize the next wave of economic prosperity. As in many other areas of industry, advances in technology have the potential to transform existing manufacturing business and build new ones; and to create new products, processes and business models.
The Agenda is building on key measures the Government already has in place including its $250 million Industry Growth Centres initiative. The Growth Centres Initiative is the centrepiece of the Government's industry policy direction to boost Australia's productivity and competitiveness. Growth Centres have been established in six key sectors of the Australian economy:
Advanced Manufacturing;
Cyber Security;
Food and Agribusiness;
Medical Technologies and Pharmaceuticals;
Mining Equipment, Technology and Services (METS); and
Oil, Gas and Energy Resources.
Each Growth Centre highlights opportunities and drives activities to boost productivity by increasing collaboration and commercialisation, improving management and workforce skills, reducing red tape and assisting the sector to engage in international markets. The Growth Centres are working to realise commercial opportunities and drive innovation by building links between businesses and industry organisations and the science and research sector. They will continue to assist Australian industry to better capitalise on the excellent research and development undertaken and scientific knowledge generated in Australia.
The Advanced Manufacturing Growth Centre (AMGC) has established collaboration hubs in 3D printing, advanced materials and industry 4.0, to leverage off our strong research base in these areas and encourage stronger collaboration with industry. The Growth Centre will work closely with the Innovative Manufacturing Cooperative Research Centre to accelerate Australia's rapid transition into high value, high knowledge-based manufacturing.
One of the key areas of advanced manufacturing for Australia is defence industries. The Government has established a new Centre for Defence Industry Capability (CDIC) to help build a strong, sustainable, internationally competitive, Australian industry that meets defence capability requirements.
The CDIC is the front door for business to access the Government's defence industry business advice and grants. The CDIC also facilitates access to the Government's new Defence Innovation Hub and Next Generation Technologies Fund, which are key elements for building Australia's integrated defence innovation ecosystem as an essential part of our economy.
The CDIC is delivered through the Department of Industry, Innovation and Science's AusIndustry to leverage the networks and expertise of other business support programmes. The CDIC's national presence is enhanced by accessing and working with AusIndustry Regional Managers.
In addition to the advisory services and grants that businesses can apply for the CDIC is providing new ways for defence and industry to work together to ensure a closer alignment between industry's investment in future skills and defence's capability needs.
The Entrepreneurs' Programme is also working with 639 advanced manufacturing businesses to help them fundamentally review their processes and operations. The Programme uses experienced Advisers and Facilitators, drawn from industry, to ensure businesses get the advice and support they need to improve their competitiveness, productivity and to maximise their growth potential. The primary focus is on providing access to tailored advice and connection and networking opportunities to grow their business and capitalise on opportunities. This is done through three elements:
Accelerating Commercialisation: providing expert guidance, connections and financial support to assist small and medium businesses, entrepreneurs and researchers to find the right commercialisation solutions to their novel product, process or service;
Business Management: providing support for business improvement and growth; and
Innovation Connections: providing support for business to collaborate with the research sector and connect with appropriate sources of expertise, technology and advice.
Although not specifically focused on auto diversification, the Entrepreneurs' Programme through its Business Management element, is currently building the capabilities of automotive component suppliers in niche markets. For example, projects are currently underway, focusing on the supply chain of a manufacturer of long haul trucks, and another on the conversion of imported vehicles.
Through the Ministerial Forum on Vehicle Emissions, the Government is working with the automotive sector to address environmental and health challenges and keep Australia in line with international vehicle markets. The Forum is consulting on three measures to reduce emissions from motor vehicles: new fuel efficiency standards for light vehicles, stronger air pollution standards for cars, trucks and buses, and improved fuel quality standards. The Forum is also considering support for emerging technologies.
From 20 December 2016 to 10 March 2017, the Ministerial Forum released for public consultation two Regulation Impact Statements on:
new fuel efficiency standards for light vehicles; and
tighter noxious emissions standards for light and heavy vehicles.
The Ministerial Forum also released a discussion paper on options to improve fuel quality standards.
Over 40 submissions were received on both Regulation Impact Statements and over 70 were received on the discussion paper. The submissions were made by businesses, individuals and other organisations, including vehicle manufacturers, state governments, transport operators, consumer, health and environment groups.
The Government will consider all submissions as it finalises its position on these issues.
In summary, Australia's automotive industry has been in transition and will continue to be an important part of Australia's economic prosperity. The Australian Government has provided and is continuing to provide significant assistance for the transition of the sector, its workers and businesses. To be globally competitive the transition of the automotive industry must focus on adapting to new technologies, expanding into new markets and connecting to global opportunities. The Australian Government has the policies and programs in place to enable the transition.
Attachment A addresses the recommendations made in the Committee's Report into the Future of Australia's Automotive Industry. Attachment B addresses additional recommendations from the Australian Greens and the Australian Motoring Enthusiast Party.
Attachment A
Recommendation 1
• The committee recommends that the Australian Government work with stakeholders—across industry, unions and state and territory governments—to develop an internationally competitive automotive industry policy framework for the entire industry, recognising the strategic role the industry can continue to play in a diversified economy.
The Australian Government notes this recommendation.
The Government has worked with stakeholders across the industry on the development and implementation of automotive initiatives. The Government will continue to work with stakeholders across the industry as the automotive industry continues to transition.
Automotive manufacturing is part of a broader set of manufacturing activities in Australia that are critical to the economy. The Government has a broad set of initiatives aimed at promoting innovation in the Australian economy, including manufacturing.
The Government will work closely with a range of stakeholders across industry, research, and government on the implementation of the $100 million Advanced Manufacturing Fund.
Recommendation 2
• The committee recommends that the Australian Government maintain the current level of Automotive Transformation Scheme (ATS) funding through to 2020-21 as provided for in the ATS Act, and allow current underspends in the ATS to be brought forward from stage 1 (ending 2015-16) to stage 2 (ending 2020-21).
The Australian Government partially supports this recommendation.
The ATS will remain as legislated so that it will continue to support the orderly transition of the automotive manufacturing sector post 2017. The ATS has a legislated cap for a particular purpose with expenditure based on eligible activity. Therefore, there is no "underspend" that can be used for other purposes, should the legislated cap not be reached.
Recommendation 3
• The committee recommends redefining the ATS into a broader, automotive-related advanced manufacturing, engineering and design program that is intended to maintain skills and industrial capabilities and mitigate the loss of jobs by supporting supply chain diversification, new manufacturing investment and jobs growth.
The Australian Government does not support this recommendation.
The Australian Government has no plans to amend the ATS. The ATS aims to encourage competitive investment, innovation and economic sustainability in the Australian automotive industry. The Government already has a broad range of initiatives that support many different aspects of Australian manufacturing such as the Advanced Manufacturing Fund, the Growth Fund, the Entrepreneurs Programme, the R&D Tax Incentive and the National Innovation and Science Agenda. These measures assist manufacturers to improve different business areas from product concept, research and development, design and production, to distribution and after-sales service. This will enable manufacturers to transition to the necessary skills and capabilities needed for smart, niche and export-focused industries of the future.
Recommendation 4
• The committee recommends that the object of the Automotive Transformation Scheme Act be updated to better reflect the current situation within industry and the need for targeted support for diversification and transformation activities, particularly in the automotive manufacturing supply chain. The new object should specify that the ATS is designed for the promotion and growth of advanced automotive industries in Australia, including: components and materials, new technologies, engineering and design for both domestic and offshore customers when that work is performed in Australia.
The Australian Government does not support this recommendation.
As noted, the Australian Government has no plans to amend the ATS. This means, firms who undertake eligible ATS activities, including in the export side of their businesses, can continue to apply for funding during this period.
However, the Government recognises while in transition, automotive businesses currently supported by the ATS could further benefit by reducing some the regulatory burden of the ATS. The Government will consult with participants on elements of the ATS regulations that may be a barrier to the further transition of the sector.
Automotive diversification is already being actively supported through the Growth Fund and will be assisted by the new Advanced Manufacturing Fund.
Recommendation 5
• The committee recommends that the ATS rules and eligibility criteria should be amended to encourage further investment in research and development (R&D) so that manufacturers can continue to secure complex design and engineering work and to provide greater support for diversification initiatives, including (but not limited to):
– amend the ATS rules to allow for the claiming of R&D relating to products and services for non-automotive industry sectors to facilitate the transition of manufacturers out of motor vehicle production;
– amend the ATS rules to allow for the claiming of R&D and engineering services across the registration categories for both domestic and offshore automotive customers when that work is performed in Australia;
– amend the definition of automotive services so that the concept of eligible automotive services is broader than passenger motor vehicles and light commercial vehicles (and covers all modes of mobility);
– remove the once a year registration requirement to allow for ease of movement between ATS registration categories as the transition within the industry progresses; and
– amend the ATS rules to allow motor vehicle producers to remain eligible for the scheme, even in the event of declining production volumes.
The Australian Government does not support this recommendation.
As noted, the Government will consult with the sector on how best to reduce the regulatory burden associated with the ATS, to assist in the transition of the sector.
The ATS already supports R&D of automotive manufacturers and the automotive supply chain. As defined in the ATS there are a broad range of R&D activities for creating new or improved materials, products, devices, production process or services that are supported by the program.
The automotive industry also benefits from the broad range of existing initiatives that can support its R&D activities, such as the R&D Tax Incentive, the Advanced Manufacturing Fund, the National Innovation and Science Agenda, the Growth Fund, Cooperative Research Centres and the Industry Growth Centres Initiative.
Recommendation 6
• Government must recognise that the automotive industry will endure. Given this recognition, the committee recommends that the government devote the necessary resources across a range of government departments to ensure the process of transformation continues. This includes a redefinition of the automotive industry to recognise and support the role of all sectors, including, but not limited to, motor vehicle production, component making, aftermarket manufacturing, engineering and design, servicing and smash repairs, retail motor trades, sales support and training.
The Australian Government partially supports this recommendation.
The Government recognises the importance of the automotive industry and that it is currently in transition. The Government has resources across the Commonwealth with responsibility for the various parts of the industry that will continue to monitor and work with the industry as it transitions.
Recommendation 7
• The committee recommends that the Australia Government support the establishment of an Automotive Industry Taskforce—with representatives from industry, unions and governments—to facilitate a collaborative and coordinated approach to developing and implementing a national automotive policy framework which encompasses all sectors of the industry.
• The Automotive Industry Taskforce would also build on the work of the AutoCRC and the Automotive Australia 2020 Roadmap Project. It would develop strategies to understand and meet the challenges and opportunities associated with alternative fuels and emerging technologies as they affect the automotive industry, including electrification, light-weighting, gaseous fuels and fuel cell technologies, car sharing, telematics and autonomous vehicles.
• The Automotive Industry Taskforce should also examine the findings of this committee inquiry and report back to government with further recommendations for action and strategies to address the issues raised over the course of this inquiry.
The Australian Government does not support this recommendation.
The Government has worked with stakeholders across the industry for the development and implementation of automotive and broader manufacturing initiatives. The Government will continue to work with stakeholders across the industry as the automotive industry continues to transition. As a result an Automotive Industry Taskforce is not necessary.
The Government has been progressing a variety of automotive industry issues including:
On 31 October 2015 the Australian Government announced a whole of government review of vehicle emissions through the establishment of a Ministerial Forum. This Forum is chaired by the Minister for Urban Infrastructure, the Hon Paul Fletcher MP. The terms of reference included the examination of future infrastructure to support new vehicles.
The Government is also examining ways to improve the productivity of Australia's vehicle fleet through the National Energy Productivity Plan, announced in December 2015. The Plan covers all energy use, including electricity, gas and transport fuels. It incorporates energy efficiency measures that support better energy use, including in vehicles and energy market reforms to increase the market's flexibility to accommodate new services, like electric vehicles.
CSIRO has developed a Low Emissions Technology Roadmap to highlight opportunities to grow Australia's clean technology sector, fast track emissions reductions and capitalise on future global supply chains. The Roadmap looks at the mix of low emissions technologies in the electricity, industrial energy and transport sectors.
The Australian Government regulates the supply of vehicles to the Australian market and sets standards for new vehicles through the Australian Design Rules (ADRs). The Australian Government has a long standing policy of harmonising the ADRs with United Nations vehicle regulations and in 2014 committed to accelerating harmonisation. Accelerated harmonisation is being achieved through adoption of UN vehicle regulations in the ADRs, and removal of local content from the ADRs, where this is warranted. The review of the Motor Vehicle Standards Act 1989 explored further opportunities for harmonisation with United Nations vehicle regulations.
In-service regulation, including vehicle operations, modifications and roadworthiness checks, is the responsibility of the States and Territory Governments. The Australian Government is also committed to ensuring a high level of harmonisation in state and territory vehicle regulation. The National Transport Commission works with states and territories to maintain harmonised vehicle regulations; and the National Heavy Vehicle Regulator is working with jurisdictions to ensure a national approach to the regulation of heavy vehicles.
In relation to new vehicle technologies, in March 2017 the Australian Government announced $55 million funding over 10 years for the i-MOVE Cooperative Research Centre (CRC), to be matched by $178.8 million in cash and in-kind participant contributions from industry and academic stakeholders. The i-MOVE CRC will bring together government, industry and academia for applied research relating to smart transport and infrastructure, enhanced personal mobility and end-to-end freight solutions.
Australian governments are working together and with industry to ensure the right policy and regulatory settings are in place for connected and automated vehicles through the National Policy Framework for Land Transport Technology and its action plan, a phased regulatory reform programme, and on-road trials.
Recommendation 8
• The committee recommends that the government urgently develop and implement a comprehensive and coordinated strategy to:
– avoid a social and economic catastrophe arising in those areas most affected by the closure of vehicle manufacturing; and
– address the unprecedented structural adjustment occurring across the retail service, repair, recycling and associated sectors.
The Australian Government partially supports this recommendation.
Governments and businesses implemented coordinated and strategic measures that delivered a targeted and integrated response following the announcements of the closures of automotive manufacturing. The Government continues to recognise the changes that the transition is having on the automotive industry, in particular in Victoria and South Australia. The Government has a range of initiatives that are supporting those people and businesses that are affected as the industry transitions.
The $100 million Advanced Manufacturing Fund expands on the Government's current range of initiatives. Designed as a package of interrelated measures to boost innovation, skills and employment in advanced manufacturing, the fund aims to further strengthen the transition of the automotive industry. A number of measures specifically target Victoria and South Australia. The Advanced Manufacturing Fund includes the following elements:
The Advanced Manufacturing Growth Fund;
Funding for the Advanced Manufacturing Growth Centre to support small scale research projects;
Cooperative Research Centre – Projects initiative for large scale advanced manufacturing research projects;
Innovation Labs in South Australia and Victoria;
Support to maintain automotive design and engineering excellence at universities, technology institutions and in industry; and
Removing tariffs on imported vehicle prototypes and components.
Announced in 2014, the $155 million Growth Fund is a targeted and integrated response to the closure of vehicle manufacturing in Australia. This initiative is designed to assist workers transition to new jobs, encourage diversification by automotive supply chains, and accelerate new business activity in the two states that are most affected by the closures, Victoria and South Australia. The Growth Fund received contributions from Holden and Toyota and comprises five elements:
The Next Generation Manufacturing Investment Programme
The Automotive Diversification Programme
The extension of the Automotive Industry Structural Adjustment Programme (AISAP)
The Skills and Training Initiative
The Regional Infrastructure Programme which did not proceed and funds were rolled into the Next Generation Manufacturing Investment Programme
In particular, the industry-funded $30 million Growth Fund Skills and Training Initiative for Holden and Toyota workers and complementary State Government programmes for South Australian and Victorian supply chain workers is helping workers to transition to new jobs, self-employment or retirement following closure of local car manufacturing. Affected workers are able to access tailored support, including careers and training advice, general training and wellness support and financial counselling. Holden will provide transition support under the Skills and Training Initiative until the end of 2018. Toyota has committed to provide support to the end of June 2018 but may also continue until end 2018. Ford workers have also had access to the $5.25 million Ford Workers in Transition project which provided support for up to 1500 workers from Ford and the component manufacturing supply chain to transition to new employment opportunities.
Displaced automotive workers are also supported by the AISAP to find new employment by providing training and assistance. To address the impact on displaced workers following the cessation of Australian automotive manufacturing, the AISAP was extended to 30 June 2018 to provide further assistance.
During the 2016 Election, the Government announced funding of up to $24 million over four years for at least 1,200 scholarships to undertake tertiary study in South Australia. The Commonwealth Scholarships Program for South Australia will target current and former automotive industry employees for a small number of these scholarships. A stream of scholarships will be allocated for state-based skills needs, with some occupations aligned with automotive and engineering trades workers, such as automotive electricians and panel beaters, eligible for scholarships under this stream. Other streams of scholarships will be allocated for the defence industry (including naval shipbuilding), and a range of industries including advanced manufacturing.
The Commonwealth Scholarships Program for South Australia will complement the Rural and Regional Enterprise Scholarships, another 2016 election commitment that will provide up to $24 million over four years for at least 1,200 scholarships for undergraduate, postgraduate and VET students from regional and rural Australia to undertake science, technology, engineering and mathematics (STEM) studies. For the purpose of the scholarships, STEM includes agricultural and health courses, except complementary therapies.
The Australian Government is establishing an ongoing Skilling Australians Fund, prioritised towards apprenticeships and traineeships, including in occupations in high demand and growth industries, as well as rural and regional Australia.
The Skilling Australians Fund underpins a new partnership with the states and territories. From 2017–18 to 2020–21, an estimated $1.5 billion will be available through the Fund.
Further, the Government is committed to the creation of an indigenous naval shipbuilding industry through a commitment to a continuous naval shipbuilding strategy. This will commence with the building of 12 Offshore Patrol Vessels, 9 Future Frigates and 12 Future Submarines. This will result in the creation of 5200 direct jobs, with more than double that number employed in sustainment activities and in supply chain and related institutions and industries that directly and indirectly support the enterprise, on both the customer (Government) and supplier (industry) sides of the activity.
In order to meet those skills requirements the Government announced the establishment of a Naval Shipbuilding College. The mission of the College will be to ensure that there are adequate skilled workers available as and when the shipbuilders require them. Skills required in the future naval shipbuilding industry will be complementary to the skills that current and past employees of the automotive industry currently have. As a result of this the Government expects that workers from the automotive industry will flow into the future naval shipbuilding industry as the shipbuilding work ramps up from 2018 onwards.
The Government has also established a $220 million Regional Jobs and Investment package to deliver regional jobs and growth. This package, which is being delivered in partnership with local communities, will incentivise local businesses to invest and employ, enable regional communities to upgrade local infrastructure and deliver new skills and training programs. The package will support regional communities, including Latrobe Valley, Geelong and Goulbourn Valley in Victoria and Whyalla and Upper Spencer Gulf in SA, to diversify their economies, create new export opportunities and help boost regional jobs.
Recommendation 9
• Given the consolidations and closures in the automotive and related industries, the committee recommends that a close examination of the operation of the Franchising Code of Conduct be undertaken as part of the next scheduled review of the code, with particular regard to the automotive sectors, including new cars, motorcycles, farm and industrial machinery and fuel retailing franchising arrangements.
The Australian Government notes this recommendation.
The Government is committed to supporting fair and transparent franchising relationships between motor vehicle dealers and manufacturers/importers.
The automotive industry is a key industry regulated by the Franchising Code of Conduct (the Code). The Code has benefited from a comprehensive independent review and public consultation process that concluded in 2014, which helped shape improved and modernised regulation for this important part of Australia's small business sector. These reforms commenced on 1 January 2015 to strengthen protections for current and future franchisees during commercial dealings with franchisors.
The Code includes a new obligation on the parties to act in good faith during all of their dealings with each other. This allows the Australian Competition and Consumer Commission (ACCC), as well as individual franchisees, to take action against franchisors for opportunistic and unfair conduct in breach of good faith. This new protection can attract court imposed civil penalties of up to $54,000 and ACCC issued infringement notices of $9,000.
New protections have also been introduced to restrict franchisors from forcing franchisees to undertake significant capital expenditure, such as facility upgrades. This includes requiring franchisors to disclose the expenditure upfront or to provide the franchisee with a sound business case to justify the capital investment.
The Government is interested to see the outcomes and effectiveness of the changes to the Code on the franchising sector following its comprehensive review. The Government will continue to monitor and receive stakeholder feedback on the Code's operation. This will help inform future reviews of the Code.
Recommendation 10
• The committee recommends that the current restrictions and requirements on the parallel importation of both new and used vehicles be maintained.
The Australian Government supports this recommendation.
As announced in the Australian Government's response to the Harper Review, the Australian Government has ruled out reforms which would allow for the increased importation of used vehicles, noting the potential safety concerns and difficulty in ascertaining the vehicle's provenance.
The Australian Government has explored options that would allow for the potential personal importation of new light road vehicles or motorcycles through the reforms to the Motor Vehicle Standards Act 1989, announced on 10 February 2016.
After detailed work on implementation arrangements, the Australian Government has decided not to proceed with this proposal, noting the cost and complexity of providing appropriate consumer awareness and protection arrangements. When weighing these up against the modest benefits of the personal import arrangements – including price reductions estimated to be less than 2 per cent across the market – the Australian Government has concluded that the benefits do not justify the cost and complexity of this particular change.
Recommendation 11
• The committee recommends that the government continues to work with industry to ensure suitable access to manufacturer information by independent automotive service and repair businesses. The committee notes the progress that has been made through the Voluntary Code of Practice for Access to Service and Repair Information for Motor Vehicles (the Code) and recommends that the Commonwealth Consumer Affairs Advisory Council undertake a review of the Code no later than three years after commencement.
The Australian Government notes this recommendation.
The ACCC is currently reviewing the issue of access to data in its New Car Retailing Market Study, with a final report due in late 2017. This study will inform further Government consideration of the issue.
Recommendation 12
• The committee recommends that an independent inquiry into the smash repair industry be undertaken to examine the relationships between insurers, parts suppliers and smash repair businesses, and inform an appropriate policy response.
The Australian Government notes this recommendation.
The Government will continue to monitor the smash repair industry to better understand the issues arising from it. Where there is a demonstrated competition issue the Government will investigate appropriate options for action.
Recommendation 13
• The committee recommends that the government recognise the vital role of training in this sector and support a comprehensive, industry-wide approach to assist the automotive sector to redesign and implement training courses that reflect the needs of employers and give workers the skills they require.
• Due to the unprecedented structural adjustment across all sectors of the automotive industry, changes to training and skills development VET packages in the automotive fields should be put on hold for a period of 12 months. During this time, Auto Skills Australia and a coordinated alliance of national industry sectors should undertake the necessary work to recast all qualification requirements, including for new skills occupations.
• Owing to their national reach and previous experience, the committee suggests that the Motor Trades Association of Australia is the most suitably qualified organisation to lead and coordinate this work.
The Australian Government partially supports this recommendation.
The Australian Industry and Skills Committee (AISC) was established on 8 May 2015 at the request of the Council of Australian Governments (COAG) Industry and Skills Council (CISC). The role of the AISC is to provide advice to ensure that the directions taken by Ministers are informed by an industry-based perspective focused on the quality and relevance of the national training system.
The AISC is responsible for approving national VET training products for implementation. A key feature of the new model is a stronger focus on prioritising and scheduling of training products based on evidence of industry demand and government priority.
As part of the $100 million Advanced Manufacturing Fund, $5 million in funding will go towards maintaining engineering excellence by investing in student research at universities, technology institutions and in industry to continue the flow of highly trained engineers to the automotive design and engineering sector.
Industry Reference Committees (IRCs) supported by Skills Services Organisations (SSOs) are the industry engagement mechanism at the centre of training package development and are the formal point through which industry requirements for skills are defined. IRCs are made up of industry representatives with expertise from a cross-section of the particular industry or sector. The purpose of the IRC is to provide industry intelligence to the AISC that represents the experience, expertise and needs of the industry or sector.
The role of SSOs is to support IRCs in this work by providing technical, operational and secretariat support to IRCs to facilitate the development of training packages for approval by the AISC. IRCs and SSOs became operational from 1 January 2016. The AISC website can be found at www.aisc.net.au.
The AISC is reviewing the structure and membership of the IRCs to ensure they are representative of their industry. The Motor Trades Association of Australia has been allocated positions on four of the five IRCs; Automotive Light Vehicle; Automotive Vehicle Body Repair; Automotive Allied; and Automotive Strategic. Information on progress and how industry can be involved with the review can be found at www.aisc.net.au/ircs.
Auto Skills Australia had been providing interim SSO support to the automotive sector. On 10 November 2016, the Hon Karen Andrews MP, Assistant Minister for Vocational Education and Skills, announced PricewaterhouseCoopers (PwC) Skills for Australia as the SSO for the automotive sector. Support for the automotive sector has transitioned to PwC on 1 January 2017.
Recommendation 14
• The committee recommends that the government, through the Council of Australian Governments (COAG), work with state and territory governments to identify and address barriers for mature workers seeking to enter the automotive industry as apprentices.
The Australian Government supports in principle this recommendation.
The Australian Government will continue to work with state and territory governments to improve the skills and capabilities of workers through strengthening the Vocational Education and Training sector.
The Australian Government supports this recommendation as part of a broader strategy in place to support mature aged workers. The Australian Government's strategy for assisting mature aged workers targets all mature aged workers and is not industry specific.
The Government's Restart wage subsidy provides up to $10,000 to employers who hire a job seeker (including an apprentice) 50 years of age or older who has been unemployed and on income support for six months.
The Government also supports employers of adult and mature aged workers to encourage skilling and upskilling for an Australian Apprenticeship, through the Australian Apprenticeships Incentives Programme (AAIP). As well as standard incentives for which employers may be eligible, employers may be eligible for incentives for workers aged 45 years and over who are experiencing barriers to employment and training, and for workers aged 25 and over who are working towards an occupation in an area of national skills shortage. Further information on the AAIP is available at www.australianapprenticeships.gov.au/programmes/incentives.
Recommendation 15
• The committee recommends that the mentoring program for automotive apprentices developed under the Australian Apprenticeships Mentoring Program and the Australian Apprenticeships Advisers Program be reinstated.
The Australian Government notes this recommendation.
The Australian Apprenticeships Mentoring and the Australian Apprenticeships Advisers Programs were non-ongoing programmes with a defined timeframe and no funding commitment beyond 30 June 2015.
The Industry Specialist Mentoring for Australian Apprentices program was announced in Budget 2017-18 and will provide intensive support to around 45,000 apprentices and trainees in the first two years of their training in industries that are undergoing structural change, including restructuring or transitioning.
The program complements other Government support for apprentices, trainees and their employers through the Australian Apprenticeships Incentives Program, Trade Support Loans and the Australian Apprenticeship Support Network.
Recommendation 16
• Subject to any changes to the Automotive Transformation Scheme after 2017 and providing no existing registered companies are adversely affected by changes to the scheme, the committee recommends that a proportion of the funding available under that Automotive Transformation Scheme (for example, from underspends in the scheme) be allocated to manufacturing diversification programs such as the Automotive Diversification Programme.
The Australian Government does not support this recommendation.
The Australian Government has no plans to amend the ATS. The ATS has a legislated cap for a particular purpose with expenditure based on eligible activity. Therefore, there is no "underspend" that can be used for other purposes, should the legislated cap not be reached.
The ADP is part of the $155 million Growth Fund, which was established to support employees, businesses and regions affected by the closure of Australia's car manufacturing industry by the end of 2017. The $20 million ADP is a competitive merit-based grants programme, with projects supported on a match funding basis. The initiative is assisting Australian automotive supply chain companies to diversify out of the domestic automotive manufacturing sector. The ADP's funds are fully committed with supported projects scheduled for completion by 2017-18. There are no plans to expand the ADP.
Broadly, the types of support provided by the ATS and ADP are different. The ATS is a programme where any business that is eligible will be able to apply for support for activities defined in the legislation. While the ADP is a merit based programme that will only fund the most competitive eligible projects.
To complement the outcomes of the ADP and continue supporting Australian companies to diversify in this period of transition, the recently announced $100 million Advanced Manufacturing Fund will provide $47.5 million in funding for an Advanced Manufacturing Growth Fund. Building on the existing $155 million Growth Fund, funding is for up to a third of the project cost of capital upgrades to establish and expand high value manufacturing in South Australia and Victoria
It is also useful to note that the South Australian and Victorian Governments have also provided a range of programmes aimed at supporting displaced workers and the transition of the automotive industry. These programmes comprise:
The $11.65 million South Australian Government's Automotive Supplier Diversification Program provides support to eligible automotive supply chain companies to diversify and secure alternative revenue streams.
The $7.3 million South Australian Government's Automotive Workers in Transition Program assists affected workers through a variety of activities including access to professional career advice, training support, skills recognition and business start-up advice.
The $5 million Victorian Government's Automotive Supply Chain Transition Program supports companies to identify and capture new opportunities in other markets.
The $43 million Victorian Government's Local Industry Fund for Transition Program supports economic development by businesses in the Victorian communities most affected by the closure of the major car manufacturers. $10 million was added to the Fund in Victoria's 2017-18 Budget.
The $8.4 million Victorian Government's South-East Automotive Transition Skills Program provides affected workers with assistance to strengthen skills, training and job search support.
Recommendation 17
• The committee recommends that the activities eligible for assistance under the Automotive Diversification Programme be expanded to include support for research and development, engineering and product development, commercialisation, feasibility studies, site relocation and/or consolidation activities and marketing activities. In particular, the committee recommends that grants for the appointment of export managers plus on-costs on 50:50 matched basis be included as an eligible activity under the Automotive Diversification Programme.
The Australian Government does not support this recommendation.
The ADP supports a wide range activities including R&D, early stage commercialisation, pre-production development, business expansion, re-tooling and the development of export capability. The ADP's funds are fully committed.
The R&D Tax Incentive Programme provides eligible companies with a tax offset for expenditure on eligible R&D activities undertaken during the year. The programme is broad-based, market-driven assistance for all industries. It provides a targeted tax offset to encourage more companies from all industry sectors to engage in R&D. In 2013-14 income year, over 30 companies ranging from large manufacturers through to small component and aftermarket manufacturers from the Australian automotive industry (all companies nominating under ANZSIC 'Group 231 – Motor Vehicle and Motor Vehicle Manufacturing'), registered in excess of $80 million worth of R&D expenditure.
In launching the National Innovation and Science Agenda, the Commonwealth committed to undertake a review of the R&D Tax Incentive programme to identify opportunities to improve the effectiveness and integrity of the programme, including how its focus could be sharpened to encourage additional R&D. The Government is currently considering its response to the Review.
A number of elements under the $100 million Advanced Manufacturing Fund will support R&D, product development and commercialisation:
the $47.5 million Advanced Manufacturing Growth Fund will build on the $155 million Growth Fund, and will provide up to a third of project cost of capital upgrades to establish and expand high value manufacturing in South Australia and Victoria;
the Advanced Manufacturing Growth Centre will receive $4 million to support small scale and pilot research projects in advanced manufacturing, allowing small firms and early stage researchers to move to larger scale research or commercialisation quicker;
the Cooperative Research Centre – Projects initiative will receive $20 million for large scale advanced manufacturing research projects of up to $3 million in funding; and
$10 million in funding will establish Innovation Labs in South Australia and Victoria, providing test centre facilities and business capability development.
Recommendation 18
• The committee recommends that the government undertake a feasibility study of the proposal put forward by the Truck Industry Council to modernise Australia's truck fleet. Pending a favourable evaluation, government should seek to implement this proposal as a matter of priority to assist the automotive manufacturing industry to adjust to cessation of passenger motor vehicle production in 2017 and as part of the broader reform agenda to reduce carbon emissions.
The Australian Government notes this recommendation.
The Government will continue to monitor and engage with the Australian truck industry to better understand the issues arising from it. Where there is a demonstrated issue the Government will investigate options for action.
The Government's Ministerial Forum on Vehicle Emissions is considering the Truck Industry Council's proposal along with other measures to reduce vehicle emissions.
Internationally, Australia is involved in the G20 Energy Efficiency Action Plan for ongoing collaboration and knowledge sharing to improve energy efficiency. Australia participates in the Transport Energy Efficiency Task Group established through the International Partnership for Energy Efficiency Cooperation (IPEEC) – which aims, amongst other goals, to build domestic support and enhance capability for action to reduce the energy impact of motor transport, especially heavy duty vehicles.
The Australian Government will use the G20 collaboration on heavy vehicle efficiency as an opportunity to learn from the experience of countries that have adopted standards for heavy vehicle efficiency and consider whether these measures may be appropriate for improving the efficiency of the Australian heavy vehicle fleet.
Recommendation 19
• The committee recommends that the government undertake an independent review of the Specialist and Enthusiast Vehicle Scheme (SEVS) to ensure that:
– the scheme is meeting its stated objectives;
– the eligibility criteria for importation are appropriate; and
– the compliance and monitoring processes do not undermine the integrity of the scheme.
The Australian Government partially supports this recommendation.
The proposed reforms to the Motor Vehicle Standards Act 1989 announced by the Australian Government on 10 February 2016 include changes that would improve the existing arrangements for the Specialist and Enthusiast Vehicle Scheme (SEVS) and ensure the scheme is operating within its original intent and continuing to meet its objectives.
The proposed changes would include revision of the criteria for entry onto the Specialist and Enthusiast Vehicle Register to ensure eligible vehicles reflect genuine specialist and enthusiast demands and to increase consumer access to specialist and enthusiast vehicles. Additionally, independent third party inspections for all SEVS vehicles would be introduced to provide vehicle integrity assurance for the community and consumers.
The proposed reforms are the result of a review of the Motor Vehicle Standards Act 1989 which began in early 2014 and has included extensive consultation with the automotive industry and stakeholders. As such, further independent review is not required.
Recommendation 20
• The committee recommends that the government, through COAG, pursue reform options to harmonise vehicle modification regulations and adopt a consistent national approach to compliance and enforcement with vehicle regulations. A critical part of this work will be the harmonisation of emerging federal, state and territory legislation and regulations designed to deal with the arrival of autonomous vehicles and driving systems.
The Australian Government partially supports this recommendation.
The Australian Government has a long standing policy of harmonising the ADRs with United Nations vehicle regulations and in 2014 committed to accelerating harmonisation. Accelerated harmonisation is being achieved through adoption of UN vehicle regulations in the ADRs, and removal of local content from the ADRs, where this is warranted. The review of the Motor Vehicle Standards Act 1989 explored further opportunities for harmonisation with United Nations vehicle regulations.
The Australian Government is committed to ensuring a high level of harmonisation in state and territory vehicle regulation. The National Transport Commission works with states and territories to maintain harmonised vehicle regulations; and the National Heavy Vehicle Regulator is working with jurisdictions to ensure a national approach to the regulation of heavy vehicles.
In relation to automated vehicles, Australia continues to actively participate in international forums to benefit from a harmonised approach to vehicle standards and regulation.
Domestically, in August 2016 the COAG Transport and Infrastructure Council agreed to the National Policy Framework for Land Transport Technology, which outlines a nationally coordinated approach to the deployment of emerging transport technologies, such as automated vehicles, and is underpinned by a three-year action plan. Subsequently, in November 2016 the COAG Transport and Infrastructure Council tasked the National Transport Commission to deliver a regulatory reform programme to enable automated vehicles to operate on Australian roads. Projects within this reform programme include developing national guidelines for on-road testing of automated vehicles, developing national enforcement guidelines that clarify the application of Australian road rules to automated vehicles, and legislative reform of current driver and driving laws in all jurisdictions to incorporate automated driving systems.
Attachment B
Additional comments from the Australian Greens
Recommendation 1
• The Greens recommend the ATS and its governing legislation be amended to:
– Continue support to currently eligible ATS recipients
– Establish a Green Car Transformation Scheme and redirect the estimated $800m ATS underspend towards the scheme.
– Broaden the eligibility for new entrants to the scheme by removing current requirements for Australian component manufacturers to be producing components for Australian major vehicle producers to be eligible for assistance.
– Focus assistance on auto parts makers that are seeking to be part of the local or global supply chain for electric vehicles or vehicles not powered by fossil fuels.
– Provide support for any new major vehicle producers that are established and invest in Australia that intend to produce electric vehicles or vehicles not powered by fossil fuels.
– Extend the above assistance beyond the current and proposed government end date for the ATS for the next ten years until 2025.
– Favour new applicants who commit to hiring workers made redundant from existing car or component makers.
– Increase transition assistance to workers in the industry.
– Enable eligible participants to receive payments in quarterly instalments referable to the expenditure incurred in the preceding quarter.
The Australian Government does not support this recommendation.
As noted, the Australian Government has no plans to amend the ATS. This means, firms who undertake eligible ATS activities, including in the export side of their businesses, can continue to apply for funding under the current legislation.
However, the Government recognises while in transition, automotive businesses currently supported by the ATS could further benefit by reducing some the regulatory burden of the ATS. The Government will consult with participants on elements of the ATS regulations that may be a barrier to the further transition of the sector.
Recommendation 2
• In addition to the above measures, the Greens recommend:
– Establishing a fund to support incentives and infrastructure support to encourage the purchase and rollout of electric vehicles in Australia.
– Immediately placing on the Council of Australian Government's agenda the development of a policy framework for electric and alternative fuel vehicles including:
o implementation of consumer incentives for electric vehicle ownership including, registration rebates or cash-backs, tax credits as well as significant targets for government fleets;
o putting in place a regulatory environment that supports electric vehicles such as regulation of deployment and the setting of competition and policy standards; and,
o maximising energy opportunities through appropriate regulation, such as requiring "smart" charging sourced through renewable energy.
– The Government, like the US and Germany, should commit to a near term target for the take up of electric vehicles in Australia.
The Australian Government notes this recommendation.
The Government has policies to encourage the uptake of electric vehicles.
The Land and Sea Transport method under the Emissions Reduction Fund provides a way for vehicle fleet owners to earn Australian Carbon Credit Units by improving vehicle efficiency, including replacing older vehicles with new, more efficient vehicles such as electric vehicles. The resulting carbon credits may then be sold back to the Government through a reverse auction held by the Clean Energy Regulator.
The Government owned Clean Energy Finance Corporation is investing in programs to support the uptake of electric vehicles.
Vehicle emissions labelling and the Government's online Green Vehicle Guide also provide consumers with information on electric vehicles.
The Government is developing new policies to address emissions from vehicles.
In October 2015, the Australian Government established a Ministerial Forum on Vehicle Emissions to coordinate a whole-of-government approach to addressing emissions from vehicles. The Forum is chaired by the Minister for Urban Infrastructure, the Hon Paul Fletcher MP, and includes the Minister for the Environment and Energy, the Hon Josh Frydenberg MP. The Forum is exploring the introduction of a fuel efficiency standard for light vehicles as well as other measures to support low and zero emissions vehicles.
The Government is examining ways to improve the productivity of Australia's vehicle fleet through the National Energy Productivity Plan, announced in December 2015. The Plan covers all energy use, including electricity, gas and transport fuels. It incorporates energy efficiency measures that support better energy use, including in vehicles and energy market reforms to increase the market's flexibility to accommodate new services, like electric vehicles.
CSIRO has developed a Low Emissions Technology Roadmap to highlight opportunities to grow Australia's clean technology sector, fast track emissions reductions and capitalise on future global supply chains. The Roadmap looks at the mix of low emissions technologies in the electricity, industrial energy and transport sectors.
Additional comments by the Australian Motoring Enthusiast Party
Recommendation 1
The AMEP recommends that the government provide funding to undertake a feasibility study to establish a Motor Sport Centre of Excellence for motor sport training and development. The AMEP believes that this initiative would also provide wider opportunities for automotive innovation, design and niche manufacturing.
The Australian Government notes this recommendation.
Initiatives such as the proposed Innovation Labs would encourage automotive innovation, design and niche manufacturing opportunities in Australia.
As part of its $100 million Advanced Manufacturing Fund, the Australian Government will provide $10 million to establish Innovation Labs in both South Australia and Victoria, two of the most affected regions by the cessation of vehicle manufacturing. The Labs will serve industry in a variety of roles, providing test centre facilities and business capability development, delivered through existing government services like Entrepreneurs' Programme, Industry Growth Centres and Austrade. The government will consult with industry to implement these Labs.
Recommendation 2
The AMEP recommends that the eligibility criteria for the Specialist and Enthusiast Vehicle Scheme (SEVS) be broadened to provide access to a wider choice of eligible makes and models.
The Australian Government partially supports this recommendation.
The proposed reforms to the Motor Vehicle Standards Act 1989 announced by the Australian Government on 10 February 2016 include changes that would improve the existing arrangements for the Specialist and Enthusiast Vehicle Scheme (SEVS) and ensure the scheme is operating within its original intent and continuing to meet its objectives. The proposed changes would include revision of the criteria for entry onto the Specialist and Enthusiast Vehicle Register to ensure eligible vehicles reflect genuine specialist and enthusiast demands and to increase consumer access to specialist and enthusiast vehicles.
The proposed reforms are the result of a review of the Motor Vehicle Standards Act 1989 which began in early 2014 and has included extensive consultation with the automotive industry and stakeholders.
Recommendation 3
The AMEP recommends that the government reduce the barriers to the manufacturing of special and enthusiast vehicles by adopting a similar regulatory framework to that used to rebuild the automotive industry in the United Kingdom.
The Australian Government notes this recommendation.
The proposed reforms to the Motor Vehicle Standards Act 1989 announced by the Australian Government on 10 February 2016 include changes that would improve the existing arrangements for the Specialist and Enthusiast Vehicle Scheme (SEVS) and ensure the scheme is operating within its original intent and continuing to meet its objectives. In combination with changes to the Registered Automotive Workshop Scheme, the revised SEV Register eligibility process and criteria would allow for a wider range of specialist and enthusiast vehicles to be commercially viable for concessional supply in Australia.
Recommendation 4
The AMEP recommends that a PR campaign be undertaken for automotive vocations to encourage careers in the automotive industry.
The Australian Government notes this recommendation.
The Australian Government announced at the 2016 Australian Training Awards, the establishment of the Vocational Education and Training (VET) Alumni which facilitates the promotion of career pathways across all industry areas.
The VET Alumni includes individuals and businesses who have agreed to promote VET – including 24 individuals with automotive qualifications and one business. 23 of the 24 VET Alumni individuals are also Australian Apprenticeships Ambassadors.
Australian Apprenticeships Ambassadors promote the benefits of Australian Apprenticeships to school leavers, their parents/guardians, employers and the wider community.
Recommendation 5
The AMEP recommends that further independent and objective research prior to manufacturing wind up in 2017 should explore the impacts (both positive and negative) of increased competition by allowing a suitable volume of broader parallel imported near new used vehicles into Australia. From 2018, after wind up of domestic vehicle manufacturing, the findings should be reviewed with a view to finalizing Australia’s policy position for the future.
The Australian Government notes this recommendation.
As announced in the Australian Government's response to the Harper Review, the Australian Government has ruled out reforms which would allow for the increased importation of used vehicles, noting the potential safety concerns and difficulty in ascertaining the vehicle's provenance.
The Australian Government has explored options that would allow for the potential personal importation of new light road vehicles or motorcycles through the reforms to the Motor Vehicle Standards Act 1989, announced on 10 February 2016.
After detailed work on implementation arrangements, the Australian Government has decided not to proceed with this proposal, noting the cost and complexity of providing appropriate consumer awareness and protection arrangements. When weighing these up against the modest benefits of the personal import arrangements – including price reductions estimated to be less than 2 per cent across the market – the Australian Government has concluded that the benefits do not justify the cost and complexity of this particular change.
The announced package of reforms includes increased consumer choice by streamlining and improving the existing pathways for importing specialist and enthusiast vehicles. This includes expanding the range of vehicles eligible for consideration as a specialist and enthusiast vehicle. Under the new arrangements, new or used vehicles can be eligible if they meet only one of six eligibility criteria - instead of meeting two out of four eligibility criteria as was previously required.
The new specialist and enthusiast eligibility criteria include superior power performance, environmental performance through alternative power sources, mobility access, rare production models and variants, left-hand drive manufacture only and originally manufactured campervans and motorhomes.
Recommendation 6
The AMEP recommends that an independent review of the Voluntary Code of Practice for Access to Service and Repair Information for Motor Vehicles be undertaken immediately.
The Australian Government notes this recommendation.
The ACCC is currently reviewing the issue of access to data in its New Car Retailing Market Study, with a final report due in late 2017. This study will inform further Government consideration of the issue.
Recommendation 7
The AMEP recommends that the proposed Automotive Industry Taskforce be commissioned to investigate the economic value of automotive aftermarket components, motorsport technology, bus, truck, mining, recreational vehicles and defence land transport manufacturing.
The Australian Government does not support this recommendation.
The Government recognises the importance of the automotive industry and that it is currently in transition. The Government has committed to continue to monitor and work with the industry as it transitions.
Recommendation 8
The AMEP recommends that the government provide funding to undertake a feasibility study into the establishment of an Australian Aftermarket Automotive Lab.
The Australian Government supports this recommendation.
Innovation Labs would encourage collaboration on automotive component R&D and exhibit Australian capability to export markets.
As noted, the Australian Government will provide $10 million to establish Innovation Labs in both South Australia and Victoria, two of the most affected regions by the cessation of vehicle manufacturing.
1 Various Trade and Assistance Reviews (2000-2015), Productivity Commission, Commonwealth of Australia.
Senator KIM CARR (Victoria) (17:20): I move:
That the Senate take note of the document.
The government's response to the Senate report on the future of the automotive industry has finally been tabled and incorporated two years after the Senate actually delivered its report. It has only done so in response to an order for the production of documents as proposed by Senator Xenophon. This is an extraordinary thing in itself. This pathetic, miserable response is a reflection of the government's attitude to the automotive industry. We recall that, in terms of its manufacturing component, the original producers were driven out of this country by the actions of this government. One can never forget—and this country should never forget—the statements made prior to 2015 by the then Acting Prime Minister, Mr Truss, and by Mr Hockey. They treated this industry with open contempt. They made statements attacking General Motors Holden, which led to General Motors Holden withdrawing their manufacturing facilities from this country, and subsequently Toyota did as well.
Recall Mr Abbott, who, when he was Leader of the Opposition, proposed to remove $500 million from the Automotive Transformation Scheme. This is part of the Liberal Party now in government which had celebrated the attacks upon the automotive industry. They were an industry that, at the time, employed 48,000 people directly and some 200,000 people indirectly. This was an attack upon an industry which, at that time, was having discussions with the Labor government about a proposal for two new models for Holden and Toyota. Two new models would be built in Australia at a time when the dollar was at a post-parity level. In these current circumstances, it would have seen that industry in a much, much stronger position now, given where the dollar is today. It would have seen an industry being able to survive and strengthen, as occurred during the world economic crisis when we saw this industry attract additional investment in this country when the rest of the industry around the world was in retreat.
What we now know is that the consequences of this government's action has been to see extraordinary economic devastation across many of the suburbs of the south-east of this country. A negative annual shock of some $29 billion—that is, two per cent of GDP—has been predicted will be the consequence of the actions of this government. We are already seeing not just in economic terms but in social terms the extraordinary effect that the destruction of the manufacturing and automotive vehicle industry is having. We know that in Craigieburn, north of Melbourne, the applications for social security payments are at record levels. We know that, in Craigieburn, payments on social security increased by $30 million. Over 2,000 extra people are on social security.
We're seeing this pattern developing in other parts of the western suburbs of Melbourne—in Werribee and in Derrimut. We're seeing it, of course, in the south-east as well. This is a pattern that's reflected around where the big automotive plants were. We're seeing it around the supply chain companies and the services industries. We know what the consequences were for Mitsubishi. Mitsubishi, I remember and I recall, closed, and my first job as minister was to actually deal with that. That was a consequence of the previous government. My first job as the Minister for Innovation, Industry, Science and Research was to reveal that Mitsubishi was closing its doors under the previous Liberal government. We know that the consequence of that was that two-thirds of workers at Mitsubishi were not able to secure work at the same level. One-third of workers never worked again and are unemployed. One-third very much work part time and one-third were able to secure some work, but only a third.
This is in industry, and we're seeing the same pattern despite the efforts of the major vehicle producers to provide support for workers in their plants. We know that workers are, at this time, receiving job offers that are considerably below their current employment in the automotive industry. You do not earn a king's fortune in the auto industry. The average wage for an auto worker is $60,000 a year. In the parts component, it's $55,000. In the original equipment-manufacturing plants, it's $70,000. The average is $60,000 a year. These are not people who are excessively paid, but it's quality work and it's skilled work. These are people who set the bar for the average skill level for the rest of manufacturing. Many of them have certificate-level qualifications or advanced diplomas and many of them have university degrees. These are skilled people who cannot find equivalent work in their current situation.
What have we got from this government? This report is a mishmash of underfunded, oversubscribed programs. The current measures that the government's just recently announced were 81 new applications for the $49 million that's available. There's no guarantee whatsoever that any of that money will go to auto workers or to those suburbs that employ auto workers—where they live. There's no guarantee whatsoever that any of that money will go to the south-east of Melbourne, the west of Melbourne or Adelaide. What we know is that there is no guarantee of support for the supply chains, and we know who the beneficiaries of the manufacturing growth centres that this government speaks highly of are. We know the CEOs. The advanced-manufacturing CEO of the growth centre's getting $485,000. The social security CEO's getting $433,000. The food and agricultural business CEO's getting $401,000. We know the big beneficiaries there.
What else can we say about the great hallmark of this government's manufacturing policies and it's growth-centre strategy? What is it that they say is the measure of success for this strategy? What is it? What we have is a government that turns its back on R&D, and the measures that have been proposed in this report go to the issue of R&D. Tragically, the automotive industry used to be the single largest element of our manufacturing R&D in this country. What's this government got to say? It blandly says: 'Of course there will be continued presence of the R&D centres in Australia. That, of course, can be assumed.' No, it cannot. It verbals General Motors about what decisions it's making about its plant in Port Melbourne at the moment. It actively verbals this report. It says that the decision has been made. It has not. There is no suggestion anywhere that the automotive companies will continue their support once the Automotive Transformation Scheme program money runs out.
What's this government got to say on other areas? It says it's discovered that parallel imports are something we should try to stop. It's been dragged kicking and screaming to that proposition—a proposition that this report, of course, advanced. I've been arguing for it for some time—since two years ago. But this government knows that, at the first opportunity, it'll be back like a dog returning to its vomit. The neoliberals of this government will be back to try and get grey imports into this country under the guise of: 'Suddenly, we will produce cheaper cars just like they do in New Zealand—junk out of Japan—so that we can ensure that we have older cars in this country and reduce our capacity.'
Of course, then the government says, 'We're doing great things on environmental standards.' Well, what have we got to say on that? Under the government's scheme, the zealots in the environment department have been let loose. We've got a carbon tax on motor cars now. The government says, 'No, we don't. We just put out a report and we had a bit of a discussion.' They're introducing a madcap scheme which won't even allow the Prius to get through unscathed—Toyota's Prius won't get through unscathed. But what does this government say? It says, 'Well, that's fine, because it's out there for discussion.' This report is a mishmash of nonsense because the government has no clear understanding of where it wants to go on automotive.
In Thatcher's Britain, it was understood what a disaster Margaret Thatcher had been to the automotive industry in England. They came to realise in England that it didn't have to be that way. Now parties on both sides of the fence have understood the importance of automotive and they've rebuilt the automotive industry in England. It's the largest exporter of automotive parts and vehicles in Europe. It's a pity this government didn't learn that message instead of listening to the zealots and the madcap schemes from those who think it's better to destroy an industry, like they've done, rather than build the capabilities of Australians and build our capacity to actually build wealth for Australian people. They'd rather destroy an industry in the way in which this government has so deliberately sought to do. I seek leave to continue my remarks later.
Leave granted; debate adjourned.
DOCUMENTS
Regional Forest Agreements
Consideration
Senator McKIM (Tasmania) (17:31): I ask the leave of the Senate to return to consideration of documents. Just by explanation, Deputy President, the reason for this is that I did wish to make a short speech, as did my colleague, Senator Rice, of no more than five minutes on document 12, which is the Regional Forest Agreement between the Commonwealth and Tasmania. That's the reason I'm seeking leave.
The DEPUTY PRESIDENT: You are seeking leave to go back to documents and you want to do five minutes each. Is leave granted? There being no objection, leave is granted. We will set the clock for five minutes.
Senator McKIM: I move:
That the Senate take note of the document.
Can I thank the Senate and my colleagues in the Senate for their concurrence and their granting of leave. This document is a death warrant for some of the most spectacular, unique, carbon-rich, biodiverse forests in the world. We have seen Regional Forest Agreements which have delivered environmental disaster after environmental disaster in this country. But they haven't just been ecological disasters; they've been social disasters and economic disasters as well.
The changes to the Tasmanian RFA that have been tabled today are so extensive that, in fact, they amount to a rewrite of the entire RFA—not a variation of the RFA, as they have been described by the government. Let's make no mistake about what this document does. It effectively gives native forest logging in Tasmania a perpetual exemption from federal environment laws—a perpetual exemption to cause environmental harm—and prevents people from seeking remedy against that environmental harm through federal environmental laws such as the Environment Protection and Biodiversity Conservation Act. This document sanctions logging in thousands of hectares of regional and conservation reserves in Tasmania that are supposedly part of the CAR reserve system—the so-called comprehensive, adequate and representative reserve system in Tasmania.
But let's be clear about what this government does. It doesn't just give a leave pass in regards to Commonwealth environmental laws. It doesn't just lock in massive emissions of carbon. What it actually does is sign a death warrant for many threatened species in Tasmania. This will push critically endangered, threatened species closer to or over the brink of extinction—beautiful, iconic creatures like the Tasmanian devil, the swift parrot, the wedge-tailed eagle, the masked owl and the giant freshwater crayfish. Those creatures and many more are now firmly in the firing line of the loggers and of the Liberal governments in Tasmania and Canberra.
The failure of RFAs is there to see for anyone who cares to look. Mr Turnbull and Mr Hodgman are locking in those failures in Tasmania. They're failing our threatened species. They're failing our tourism sector, Tasmania's largest economic sector. They're failing all of the magnificent ecosystems contained within Tasmania's globally unique forests. They're failing our climate, because of course logging these forests will emit massive amounts of carbon, which will contribute to dangerous climate change. And they are destroying the capacity of these forests—the trees, the shrubs and the soils—to embed and sequester carbon.
Tasmania's recent history shows full well what happens when governments try to destroy forests and try to destroy the environment in my home state. What happens is that the Tasmanian people fight back. And the Tasmanian people will fight back against this regional forest agreement; mark my words. Liberal governments in Canberra and Hobart have decided to restart the forest wars. Well, we will accommodate them in Tasmania, because we are passionate about defending our globally significant, magnificent forests—rich in carbon, home to so many beautiful and threatened species. These governments—the Liberal governments in Canberra and Hobart—will be fought at every step by the Greens, by the conservation movement and by the millions of Australians who want to see these forests protected.
Senator RICE (Victoria) (17:37): The re-signing of the Regional Forest Agreements between the Commonwealth government and the Tasmanian government marks a very sad day in environmental legislation and environment protection in Australia. Twenty years ago, when the Regional Forest Agreements were first negotiated, they were set up to, in theory, do two things: to protect the timber industry and jobs in the timber industry and to protect our forest environments. They have failed on both—failed absolutely, failed unequivocally to do both. In the 20 years since the Regional Forest Agreements were first declared, we have seen employment in the native forest timber industry decline exponentially. We have seen an increase in employment and the importance of the plantation industry for producing wood products for Australia. That is the direction that the timber industry has headed in those 20 years. That is the direction that has the potential to be ecologically sustainable. Yet this incredibly destructive, last-century industry has got hold of the government and is still driving the destruction of our native forests.
The Regional Forest Agreements, or the logging laws, that have just been signed off between the Tasmanian and the federal government are going to mean ongoing destruction, ongoing disaster, for the forests in Tasmania. They are also heralding ongoing destruction, ongoing disaster, for our forests and everything that our forests support across the country, because the government has been very clear that this is what they intend to do, and not just to forests in Tasmania. They also intend to rollover these logging laws in Victoria, in New South Wales and in Western Australia. We have seen the consequences—what these logging laws have meant over the last 20 years. They have meant ongoing destructive clear-felling. They have meant the destruction of magnificent forests which have such potential and are such a wonderful asset for recreation and tourism. They have seen the destruction of our forests, which are so important for our water supplies and as carbon stores. The most carbon-dense forests in the world are still being destroyed. Critically, they have seen the destruction of habitat for an amazing array of threatened species. The ongoing industrial-scale clear-felling logging of these forests is sending those animals to the brink of extinction. In Tasmania, we have swift parrots, Tasmanian devils and the giant fresh water crayfish, for all of which the prime threatening process is clear-fell logging, yet these logging laws that have just been rolled over are continuing those threatening processes.
Why? Because these logging laws say that the protections of the Environment Protection and Biodiversity Conservation Act don't apply. These logging laws exempt logging operations from our environment protections. All that they do is declare for themselves that the forest operations that are occurring there are ecologically sustainable. In fact, in this legislation they say in regard to the protection of the environment and heritage values that they agree that the reserve system and the application of the forest management system protects environment and heritage values—full stop; no argument—whereas for every other threatening process for our threatened species you have to show that our species are being protected. But, no, the timber industry has this special pass to continue to destroy some of the most precious forests in the country.
The community doesn't accept this. When the community sees what goes on in our forests, when they see the destructive clear-fell logging, they say, 'I thought that ended years ago, I didn't know that's occurring.' They want to see it protected. That's why, in response to the government's plans to be rolling over these logging laws, I will be introducing a private senator's bill this coming Thursday, very notably on Threatened Species Day. I will be introducing a private senator's bill to scrap these logging laws, because that's what needs to happen to them. They need to be put in the bin. They are last century. We need to move forward for the sustainable management of our forests for us all.
Senator RUSTON (South Australia—Assistant Minister for Agriculture and Water Resources) (17:42): I rise to speak on the same subject as we have just heard Senator Rice go on about. I would like to put on the record that the extension of the RFA in Tasmania is cause for great celebration for the Australian forestry sector and for regional communities. It fulfils an election promise of 2013 by our government but, more importantly, it actually protects the regions in which forestry occurs in Tasmania, and we are hoping that we will continue to roll these forward in other places around Australia that support strong forestry commitments.
In 2015 and 2016, forestry directly employed more than 64,000 people and contributed more than $23 billion to the national economy. We believe the RFAs provide a balanced approach between the economic, environmental and social outcomes for all Australians through the management of our native forest. It's also worth mentioning that 58 per cent, or 1,778,000 million hectares, of Australia's forests are now protected in reserves, including the Tasmanian Wilderness World Heritage Area. The RFAs are an adaptive management tool and we concede that in the rollover of the new Tasmanian RFAs there has been a series of improvements from lessons learnt over the 20 years the RFAs have been in place to date. But, most importantly, I would like to put on the record that no species in Australia has become extinct as a result of forestry. That is a direct quote from the Threatened Species Commissioner.
Question agreed to.
COMMITTEES
Environment and Communications Legislation Committee
Environment and Communications References Committee
Select Committee into the Political Influence of Donations
Membership
The DEPUTY PRESIDENT (17:44): Order! I have received letters requesting changes in the membership of various committees.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (17:44): by leave—I move:
That senators be discharged from and appointed to committees as follows:
Environment and Communications Legislation and References Committees—
Discharged—
Senator Whish-Wilson
Participating member: Senator Rice
Appointed—
Senator Rice
Participating member: Senator Whish-Wilson
Political Influence of Donations—Select Committee—
Appointed—Senator Lambie
Question agreed to.
BILLS
Regional Investment Corporation Bill 2017
First Reading
Bill received from the House of Representatives.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (17:44): I move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
Second Reading
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (17:45): I table a revised explanatory memorandum relating to the bill and I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
REGIONAL INVESTMENT CORPORATION BILL 2017
During the 2016 election campaign, the government announced it would establish a Regional Investment Corporation to be the single delivery agency for the Commonwealth's farm business concessional loans program, the National Water Infrastructure Loan Facility, as well as any future programs.
This bill delivers on that commitment, establishing the corporation.
We are establishing the corporation because we recognise the enormous contribution that rural and regional communities make to the nation.
We are committed to helping those communities reach their full potential.
Agriculture has always been a key pillar of our economy and has to deal with so many things, such as the vagary of the weather, as it contributes to our national economy. But, while agriculture is a strong part of the economy, it is a volatile industry.
Our farmers deal with a highly variable climate that impacts on their productivity. Farmers face severe droughts that can undermine the best farm-business planning.
Farmers can also experience dramatic fluctuations in commodity prices that impact on revenue and profitability. Farmers live and work with this uncertainty.
Since 2013-14, the Commonwealth has been offering concessional loans to farm businesses to help them through these times of difficulty.
Our efforts have largely focused on managing drought. Concessional loans are an important element of the Commonwealth's drought policy framework introduced by this government to implement our commitments to the intergovernmental agreement on national drought reform.
This drought policy framework encourages on-farm risk management and farm business resilience and provides targeted support when needed to enable businesses to improve their long-term financial position.
The government's drought policy is underpinned by long-term policy commitments around which farmers and associated financial and support industries can plan:
- A 10-year commitment to farm business concessional loans.
- Access to time limited Farm Household Allowance during periods of financial hardship.
- A strengthened Farm Management Deposits Scheme with increased deposit cap of $800,000, restored drought trigger to access funds and the ability to offset farm debt against farm management deposits. We would dearly love all banks to allow this offset, which has been legislated, to be applied to those facilities. Accelerated depreciation for water reticulation, fencing and fodder storage—100 per cent write-off water reticulation, 100 per cent write-off of fencing and a write-off over three years for fodder storage.
- Longer term funding security for the Rural Financial Counselling Service—a vital service for so many farmers who are doing it hard in times of drought.
While building industry resilience to drought has been a key focus for use of concessional loans, more recently loans have been offered to dairy farmers affected by the severe industry disruption of retrospective price cuts made by some major dairy processors.
Concessional loans are also available in 2017-18 to support eligible farmers who have exhausted their 1,095 day eligibility for the farm household allowance.
These concessional loan programs have been delivered through the states.
There is no doubt these loans are successfully providing practical support to the farm businesses that have received them, with over $724 million in loans approved nationally to 1,342 farm businesses as of 30 June 2017.
But the fact is that delivering through the states is unwieldy and there is a lack of consistency in delivery across the country.
Currently, the Commonwealth has to negotiate separately with each state government to change an existing arrangement or roll out a new program to farmers.
Even with the best endeavours, this can involve protracted negotiations over delivery, loan terms and administration costs—delaying the rollout of and farmers' ability to apply for this important government support.
We have also found that loan decisions are not being made consistently across the country.
For example, some states apply a very restrictive approach to assessing loan applications and have a very low rate of loan approvals.
This is unacceptable. The Commonwealth should have more direct control over the delivery of its loans programs. We did not go to so much work to provide access to this facility to see it not rolled out by certain states.
Establishing the corporation will remove the middle man, allowing us to be more responsive in providing loans to farm businesses.
We also will be able to deliver a nationally consistent program focused on the needs of Australian farmers.
Establishing the corporation will be a significant change in the way the Commonwealth works with farmers during times of need.
It is the logical next step in meeting the government's commitment to agriculture, as set out in our landmark Agricultural Competitiveness White Paper, in excess of $4 billion.
The Regional Investment Corporation will have a client focused culture that is receptive to and understands the unique nature of farming.
The farm business loans offered by the corporation will help viable farm businesses return to normal operating conditions.
They will help those businesses take advantage of emerging opportunities at a time when the agriculture sector is performing so well.
They will also boost farm productivity and cash-flow, and provide positive economic and social flow-on effects for regional Australia.
The loans will not be the same as those currently offered through the states. The program will be broader, with loans drawing on constitutional authority that includes the Commonwealth's trade and commerce and external affairs powers.
Existing loans which have been delivered by the state and Northern Territory governments will continue to be managed by those state delivery agencies for the life of the loan.
As well as administering farm business loans, the corporation will administer the government's National Water Infrastructure Loan Facility.
Water and water infrastructure is critical to our future prosperity, particularly for agricultural industries and regional areas of Australia, especially areas such as Central Queensland, Northern New South Wales and Western Australia. We are already seeing the rollout of dam infrastructure in Tasmania. This government is committed to working with the states and territories to identify and build the water infrastructure of the 21st century to secure Australia's water resources.
Through the facility, announced in May 2016, the government has put $2 billion worth of concessional loans on the table for states and territories to draw on to deliver the water infrastructure needed to help our agricultural sector reach its full potential.
The corporation's administration of the loan facility will provide further incentive for states and territories to fast-track the construction of dams and priority water infrastructure projects.
These projects will stimulate investment, economic growth and increased agricultural productivity in rural and regional economies, helping take the people in those areas ahead and giving them a better economic future.
As outlined in our election commitment, the corporation may also deliver other programs in the future. This bill provides for this by allowing for rules to prescribe additional programs to be administered by the corporation. These rules will be subject to legislative oversight and disallowance.
A key consideration in the design of the corporation was ensuring it had the right governance framework, with appropriate independence from government.
The bill establishes the corporation as a corporate Commonwealth entity. It will have an independent board of three to five members to oversee the performance of the corporation.
This will ensure the government can appoint a board with the breadth of skills and experience needed to oversee the Corporation's functions.
The board's skills will cover fields such as agribusiness, banking and finance, financial accounting or auditing, economics, water infrastructure planning and financing, the law and government funding programs or bodies. We are also seeking board members with experience in issues affecting rural industries and communities.
Such expertise will be vital for the corporation's management of financial risk.
It will also allow for the corporation to provide expert advice to the government on water infrastructure projects and issues affecting farm businesses.
There will be two responsible ministers for the entity—the Minister for Agriculture and Water Resources and the Minister for Finance.
The responsible ministers will appoint the board of the corporation and will issue the corporation with an operating mandate.
The operating mandate will be the key vehicle for the government to set out its expectations for the corporation. The board will then be responsible for implementing the mandate.
The bill sets out what can be included in the mandate, such as:
- the objectives to pursue in administering farm business loans and the National Water Infrastructure Loan Facility,
- the government's expectations in relation to the strategies and policies to be followed by the corporation,
- the eligibility criteria for loans, and
- the management of funding and other matters.
The initial mandate will be ready by the time the corporation commences its operations. It will be tabled in parliament, but, as a direction to a corporate Commonwealth entity, it will not be disallowable.
The responsible ministers can also direct on the location of the corporation. This will enable the government to give effect to its decision to locate the corporation in Orange, New South Wales.
Importantly, while responsible ministers can direct on matters listed in the bill, they cannot stray into decisions on individual farm business loans. These are matters for the corporation alone.
The arrangements for the National Water Infrastructure Loan Facility are somewhat different.
In that case, decisions on whether to provide loans to states and territories will continue to be made by the government.
The role of the corporation will be to provide independent expert advice to the government on water infrastructure projects being considered for financial assistance.
Then, on direction from the responsible ministers, the corporation will enter into and administer loan agreements with states and territories.
Bringing this stream of work together with farm business loan administration consolidates loans expertise in one entity in the agriculture portfolio.
It also incorporates the functions into an entity with a governance structure that balances independent, commercial decision-making with appropriate responsiveness to government.
Establishing this corporation reflects the government's priorities for rural and regional communities in Australia. We want to see these communities reach their productive and economic potential.
The corporation will make a significant contribution to building a stronger and more prosperous rural and regional Australia.
It will strengthen farm businesses. The corporation's loans will help farm businesses build and maintain diversity in the markets they supply, and take advantage of new and emerging opportunities across Australia.
It will also help fast-track the construction of priority water infrastructure needed to stimulate investment, economic growth and increased agricultural productivity in rural and regional Australia.
The establishment of the Regional Investment Corporation is one of the key priorities for this government. It shows a real vision for where we are taking regional Australia.
Debate adjourned.
Liquid Fuel Emergency Amendment Bill 2017
First Reading
Bill received from the House of Representatives.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (17:45): I move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
Second Reading
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (17:46): I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
LIQUID FUEL EMERGENCY AMENDMENT BILL 2017
This Bill will enable the Australian Government to enter into commercial oil stock ticket contracts, assisting Australia to meeting its obligations as a member of the International Energy Agency.
The Agreement on an International Energy Program, the founding treaty of the International Energy Agency, requires members to hold stocks equivalent to 90 days of the previous year's net oil imports. Australia has not been compliant with this obligation since 2012, due to both decreasing domestic oil production and increasing fuel consumption.
The Government has developed a plan for returning to compliance with our obligations as a member of the International Energy Agency. As part of this plan, the Australian Government will initially purchase 400 kilotonnes worth of oil stock tickets in the 2018-19 and 2019-20 financial years. This Bill will give the Australian Government the legislative authority to purchase ticket contracts.
A ticket is a type of commercial oil contract, where oil stock is reserved for the buyer who is able to purchase the stock at the market-based price, or release the stock back into the global oil market to increase supply, throughout the contract period. An oil ticket market has existed in Europe for decades. Tickets are generally purchased from overseas entities, but, under certain market conditions, tickets could be purchased from Australian companies as well.
Ticketed stock counts towards the International Energy Agency's 90-day oil stockholding obligation and can also be used by Australia to contribute stock in the event of a declared collective action event. A collective action is declared by the International Energy Agency when there is an actual or potentially severe oil supply disruption in the global market. After an assessment of the situation, the International Energy Agency may need to coordinate a specific drawdown of stock from the emergency reserves of its members to help diminish associated economic damage.
The Government is committed to ensuring it achieves value for money when it purchases tickets. Extensive engagement with the International Energy Agency and our international partners is underway to expand the ticket market to increase competitiveness. The measures in this Bill demonstrate Australia's ongoing commitment to international oil security cooperation.
Debate adjourned.
Ordered that the resumption of the debate be made an order of the day for a later hour.
Competition and Consumer Amendment (Misuse of Market Power) Bill 2017
Education and Training Legislation Repeal Bill 2017
Great Barrier Reef Marine Park Amendment Bill 2017
Petroleum and Other Fuels Reporting Bill 2017
Petroleum and Other Fuels Reporting (Consequential Amendments and Transitional Provisions) Bill 2017
Public Governance and Resources Legislation Amendment Bill (No. 1) 2017
Statute Update (Winter 2017) Bill 2017
Treasury Laws Amendment (2017 Measures No. 4) Bill 2017
Assent
Message from the Governor-General reported informing the Senate of assent to the bills.
COMMITTEES
Legal and Constitutional Affairs Legislation Committee
Report
Senator FAWCETT (South Australia—Deputy Government Whip in the Senate) (17:47): On behalf of the Chair of the Legal and Constitutional Affairs Legislation Committee, I present the report of the committee on the provisions of the Migration Amendment (Validation of Decisions) Bill 2017, together with the documents presented to the committee.
Ordered that the report be printed.
BUSINESS
Rearrangement
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (17:47): I move:
That intervening business be postponed till after consideration of government business order of the day no. 3 (Migration Amendment (Validation of Decisions) Bill 2017).
Question agreed to.
BILLS
Migration Amendment (Validation of Decisions) Bill 2017
Second Reading
Consideration resumed of the motion:
That this bill be now read a second time.
Senator O'NEILL (New South Wales) (17:48): I wish to place on the record Labor's remarks regarding the Migration Amendment (Validation of Decisions) Bill 2017. Labor support the principle of cancelling the visas of noncitizens on character grounds or because of criminal offences, and we support the removal of criminals from Australia under section 501 of the Migration Act. Therefore we support this bill, which has arisen because of cases before the High Court that challenge the validity of section 501. It is not appropriate to comment on those cases, Graham and Te Puia, but it is clearly in Australia's best interests to preserve the validity of effective past decisions to remove people under section 501 of the act. That will be the effect of this bill. Section 501 sets out the grounds on which people can be excluded on character grounds or when the minister reasonably suspects that a noncitizen presents a risk to the Australian community. A person can fail the character test in several ways—for example, by having an extensive criminal record; through membership of a group or organisation involved in criminal conduct, such as a motorcycle gang; if there is a risk that the person will commit a criminal offence; if there is an Interpol notice that the person might present a risk to the community.
Immigration ministers decide to cancel visas on the best information available, including advice from the intelligence and security services. It is reasonable for these agencies to expect that, in some circumstances, the Department of Immigration and Border Protection will not disclose the advice. Section 503A of the act protects information the agencies supply to the department's officers on condition that it remains confidential. Ultimately, the minister's decision will be made according to the Commonwealth's interpretation of section 501. Visa applicants who are not satisfied with the decision can ask the Administrative Appeals Tribunal to review it. That is a fair system, which the bill is intended to uphold.
The bill has been brought on for debate on the same day that the report of the Senate inquiry into the bill has been tabled. That degree of haste may not be without precedent but it is certainly not usual practice. The Migration Act is a complex piece of legislation, and this government has a poor track record of consulting stakeholders and the Australian people about amendments to this very important act. That's why it's Labor's practice to refer all legislation amending the act to a Senate inquiry so that stakeholders have an opportunity to comment on unintended consequences. Labor notes the submissions made by the Department of Immigration and Border Protection, Dr Martin Bibby, Refugee Legal and the Law Council of Australia. In particular, I note the concern expressed by the Law Council that this bill should be held over until the High Court makes a decision on Graham and Te Puia. However, Labor believes that it is in our national interest to protect Australians from those noncitizens who do not meet character grounds, by upholding previous decisions to cancel visas.
I remind the Senate that in January the Commonwealth Ombudsman released two reports on Australia's immigration system. The reports highlighted failures by the minister and the department to manage the number of people in detention, leading to mismanagement of cases. One of the Ombudsman's reports concerned the administration of section 501 of the act and is therefore relevant to this bill. That report pointed to people being held for unnecessarily long and potentially indefinite periods of immigration detention. It's beyond question that noncitizens who commit serious offences should expect to be deported, but that does not mean that the minister should act in ways that leave families and children in limbo and increase their distress. Labor will continue to uphold the bipartisan commitments to keeping Australia and Australians safe. We are committed to upholding the integrity of the Migration Act. That includes the ability of law enforcement and intelligence agencies to freely provide the minister with advice. But we will also continue to hold the minister to account for failures of the kinds set out in the Ombudsman's report. With that warning, we support the bill.
Senator McKIM (Tasmania) (17:53): It's no surprise that Labor's going to support this legislation—no surprise at all. Once again, they are in lock step with this government in eroding some of the most crucial and critical rights that we are lucky enough to enjoy in this country. Make no mistake: this bill is a direct response to a case that is currently before the High Court of Australia. It's not a case that has just finished being heard in the High Court; this bill is in response to a case currently in the High Court. That's not me saying this; this is me interpreting the explanatory memorandum, from which I will now quote:
This amendment is in response to current proceedings in the High Court of Australia, Graham and Te Puia, in which the validity of section 503A of the Act is being challenged.
Here we are, in the Commonwealth Parliament of Australia, bringing in legislation that is in direct response to a case that's currently being heard by the High Court. Separation of powers, anyone? Anyone? Separation of powers? Crickets, absolute crickets!
Make no mistake, this bill seeks to pre-empt and negate a High Court decision in the event that that decision is in favour of the plaintiffs. That's what this is about. The reason we have this bill, and the reason it's so disappointing that Labor is in zombie lock step with the government on this legislation, is that the government doesn't like it when the courts get to actually apply justice in this country and when the courts get to exercise control over migration matters in this country. It is a disgrace that we are even debating this bill, and it's a disgrace that the Labor Party has indicated support with a bunch of weasel words which, with the greatest of respect, mean absolutely nothing whatsoever.
Clearly, the Liberal and Labor parties in this place would prefer it if the courts stayed out of the government's business as it relates to migration and visas, and just let the minister exercise his discretion and his will. When you look at the figures of the number of decisions this minister has made that have been overturned by the AAT, you can get some idea as to why the Liberal Party is so keen to keep the courts away. It doesn't explain, unfortunately, why it is that the Labor Party is backing this legislation.
Let's not forget the infamous statement of former immigration minister Philip Ruddock, who said that the courts ought not be involved in review of migration matters because the judiciary is, and I quote, 'ill-suited' to deal with these matters. Well, no, the judiciary is not ill-suited to deal with these matters. This is about the rule of law—one of the absolute foundations of any liberal democracy in the world. This is about a separation of powers, which is absolutely critical to allowing the courts to do their job. Section 503A was introduced by way of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998. What it does is provide for the protection and non-disclosure of certain information provided to a migration officer by a law enforcement or intelligence agency on the condition that it be treated as confidential information. The minister, after consulting the relevant agency, may authorise disclosure of the information to a relevant court or tribunal.
Section 503A(5), however, provides that if the information is disclosed to a tribunal, the tribunal cannot divulge that information. In other words, the tribunal cannot divulge that information to the person who is applying for the visa. Of course, the inability of the person who is applying for the visa to question this information means that that person whose character is being impugned will probably never even know why their character is being impugned. That runs counter to the rule of natural justice if you ask the Australian Greens. The Law Council of Australia submitted:
The proposed new section 503E would remove the right of an individual to have their cancellations or refusals reconsidered validly allowing them to access and comment on material held by the minister or delegate prior to their visa being cancelled or refused on the basis of that material.
We are not here today to argue that there are not good policy reasons why people who have engaged in unacceptable conduct should not be able to remain in or enter Australia, but people have a right to respond to accusations against them, and in doing so they have a right to be in possession of all the information that was in the possession of the person making those accusations or decisions. So this bill also has a retrospective application in that the provisions of the bill will apply to all decisions made prior to the day after royal assent—that is, they will apply to all cancellation and refusal decisions which relied on section 503A information. Retrospectivity, as a general comment, makes the law less certain and less reliable.
Some years back Canada dealt with a similar problem, with the Supreme Court over there striking down a provision preventing visa holders from seeing and responding to protected information. In that decision, Chief Justice McLachlin—with whom the entire court agreed—accepted, as one of the most fundamental responsibilities of a government, ensuring the security of its citizens. This means sometimes the government must—I quote from Chief Justice McLachlin—'act on information it cannot disclose and detain people who threaten national security'. However, in a constitutional democracy, Chief Justice McLachlin continued, 'governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees.' The tension that the Chief Justice described as lying at the heart of modern democratic governance must be resolved to respect 'the imperatives both of security and of accountable constitutional governance'.
In Australia, in 2007, the visa of Dr Mohamed Haneef was cancelled on character grounds, with some of the material provided to the then minister protected under 503A. Refugee Legal, in their submission to the Legal and Constitutional Affairs Committee inquiry into this bill, suggested that this amendment is 'an encroachment on the jurisdiction of the judiciary by the executive and legislature, and is inconsistent with the doctrine of the separation of powers'. The Australian Greens couldn't agree more with Refugee Legal.
I want to now draw the attention of the Senate to a quote from Chief Justice Gleeson:
It is self-evident that the exercise of jurisdiction such as this—
judicial review—
will, from time to time, frustrate ambition, curtail power, invalidate legislation, and fetter administrative action. As the guardian of the Constitution, the High Court from time to time disappoints the ambitions of legislators and governments. This is part of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced.
Of course, that's the nub of it right there. The Liberal Party and the National Party—the coalition parties in government—do not like being checked or balanced by our courts. The Labor Party—knowing that it's highly likely that after the next election they will form a government—are preparing themselves to adopt the same position. And why are they doing that? Because the Labor Party, when in government, doesn't like being checked or balanced either. There's no other explanation for Labor's craven capitulation on this piece of legislation. I'll tell you what—if the light on the hill hasn't gone out, it's flickering ever so faintly as we stand here today. This legislation is an attack on the separation of powers and it's an attack on the rule of law in this country. It continues the ongoing erosion of our rights, our freedoms and our liberties that goes on week after week, month after month, year after year in this place, with the Liberals, the Nationals and Labor in zombie lock step as they continue to erode some of the rights and freedoms that many Australians have fought and, tragically, died for throughout our country's history.
This is why we need a charter of rights in this country—to codify our rights, to enshrine our rights and to make it more difficult for governments and parliaments to take those rights away from the Australian people. If it's good enough to go to war to fight for these rights, it's good enough to stand up in this place and defend them. And the Australian Greens will defend them. We'll campaign strongly for a charter of rights in this country, because they are our rights. They're the rights of the Australian people, and they shouldn't be taken away lightly. Yet, day after day, week after week, month after month, the establishment parties in this place collude to trample on the rights of the Australian people. We're going to call it out every time we see it. We're going to campaign for a charter of rights, and we won't rest until we have codified and enshrined the rights that so many Australians take for granted but that so many Australians are prepared to take action to fight to defend. We've seen it throughout our country's history, and we will see it again while ever the establishment political parties in this place work together, as they are today, to trample roughshod over those rights.
Senator LEYONHJELM (New South Wales) (18:06): I rise to speak on the Migration Amendment (Validation of Decisions) Bill 2017. This bill amends the Migration Act 1958 to shelter visa cancellations and refusals by the minister on grounds of character that were based upon information protected from disclosure under section 503A in the event that this section is successfully challenged. This is an extraordinary bill. What it means, in effect, is that the government is seeking to grant retrospective absolution for ministerial decisions on visas from adverse decisions by the courts. It seems completely at odds with the principles upon which a liberal democracy and just legal system should operate. The measures in this bill are in response to current proceedings in the High Court of Australia in which the validity of section 503A is being challenged in response to the ministerial cancellation of the visas of two New Zealand citizens who are apparently motorcycle gang members.
Sadly, the idea of exempting visa decisions from legal due process has a history. In 1998, the Migration Act was changed by the insertion of section 503 to protect intelligence which informed visa cancellation decisions. The current amendment inserts a new subsection in the act which will shelter past cancellations made by the minister on grounds of character which relied on section 503A protections from being ruled invalid by the courts except for cases where judgements have been made or are reserved. In his second reading speech to justify the further strengthening of section 503, the minister stated that:
… law enforcement and intelligence agencies will only provide information to the Department because it can be protected from disclosure.
However, it is precisely this issue to which the Liberal Democrats take exception. The suggestion that agencies won't disclose information to a department unless cloaked in secrecy is nonsense. In a democracy, government agencies should do as the law requires. The great legacy of the adversarial legal system which Britain bequeathed us is that all defendants have a right to know the specific basis of allegations so that they can challenge them. The whole concept of section 503A protections goes contrary to that principle, and the provisions of this bill—which would effectively sprinkle legal holy water on past dubious decisions—only compound this.
Let us not forget the legal and administrative fiasco of Dr Mohamed Haneef, who was damned by remote association with one of the Glasgow bombers and found himself arrested in 2007 at Brisbane Airport, charged with terrorist offences and stripped of his visa. When the farrago of allegations against him was subjected to the light of day, the case against him collapsed and his visa had to be returned. If secrecy had prevailed and the flimsy adverse determination of his character had not been scrutinised, a serious miscarriage of justice would have occurred.
Procedural fairness dictates that those who are accused of bad character have the right to know the basis of that charge. In its current form, the Migration Act denies this under section 501(3). The minister's discretion to cancel a visa merely needs to be in the national interest, and the act specifically states that natural justice does not apply. Under section 503A, intelligence that may form the basis of an adverse ministerial decision is concealed. If passed, this bill would simply sanctify that denial of natural justice in ministerial decision making, indemnifying past ministerial decisions against adverse findings by the High Court regarding section 503A. This is disturbing. Allowing legal or administrative decisions that affect the fate of individuals to be made based on secret information that is withheld from the individual is exactly the sort of tactic used by every police state in history. Secret courts, allegations for which evidence is never given and retrospective validation of unlawful decisions by members of the political executive are all hallmarks of the most oppressive governments. Stalin did it. Hitler did it. I'm sure Kim Jong-un does it all the time. Is this really the company that the Turnbull government wishes to keep?
The Liberal Democrats have absolutely no objection to ministerial cancellation of visas of noncitizen criminals and those of genuine bad character, but let this occur in the light of day in which those wrongly accused can defend themselves as our adversarial legal system intended. Maintaining a veil of secrecy over the basis for visa cancellations and indemnifying past ministerial decisions against future adverse court rulings is wrong and contrary to what we should stand for. Accordingly, I oppose this bill.
Senator IAN MACDONALD (Queensland) (18:12): The greatest challenge for any government in these difficult times is to ensure the safety of all Australians and people who come to Australia. For that reason, many decisions which in the past we as parliamentarians perhaps wouldn't have been enamoured with have to be looked at more closely. This is a case in point, because it is important that we know who is in Australia. For people who are not Australian, if they are criminals or involved in terrorist activities or activities that would harm Australians, the government must have the right to cancel visas and deport those non-Australians who are of this character.
I often wonder who the Greens political party represent in these issues of migration and citizenship. It seems that very often their support is for those elements of Australian society who most Australians would prefer not to be within Australia.
The Migration Amendment (Validation of Decisions) Bill 2017 was investigated by the Senate Legal and Constitutional Affairs Legislation Committee, and the committee tabled its report earlier today. The report is there for anyone to read should they wish to look further into this. The bill is a response to the High Court cases of Graham v Minister for Immigration and Border Protection and Te Puia v Minister for Immigration and Border Protection, which challenged the constitutional validity of section 503A of the Migration Act, which has been referred to by other senators.
The minister cancelled the plaintiffs' visas, referring to 'protected information' provided to him under section 503A of the act. These visas were then cancelled on the grounds that the plaintiffs failed a character test and that it was in the national interest to cancel the visas. The minister provided a statement of reasons which referred to certain information which is protected from disclosure under section 503. This bill is about reinforcing the validity of 503. As has been mentioned, both of the men in these court cases are members of motorcycle gangs, and they are currently in immigration detention.
Section 503A protects information from disclosure when it is provided to the Department of Immigration and Border Protection by gazetted law enforcement or intelligent agencies to support a section 501 character visa application or refusal, or a cancellation decision. Where protected information is provided to the minister to make decisions, section 503A(2)(c) of the act currently provides:
… the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person …
Clearly, this is about information upon which the minister makes his decision that comes to him from intelligence agencies and from specialised agencies who can give the minister information about the challenge to the safety of other Australians that these particular visa holders exhibit.
There were four submissions to the committee. The Law Council, for example, notes what the department highlighted in its submission to the committee—that this in no way impacts upon the merits review of the minister's cancellation. As the committee report says:
… the department submitted that the bill would preserve existing rights for relevant individuals to seek appropriate and fair judicial reviews of decisions to cancel their visas …
As the department said in its submission:
Persons who have had their visa cancelled, or visa application refused, on the basis of section 503A protected information will remain able to seek judicial review of their visa decision following the commencement of these amendments. The amendments will not affect any review rights afforded to noncitizens under law.
The amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia. They have had, and continue to have, access to judicial review of this decision and some of these individuals have challenged their cancellation/refusal decisions already.
I repeat: it is the principal job of governments of Australia, in this day and age, to protect the safety of Australian citizens and people lawfully here. It's a difficult job. It's never easy. But, if you're going to err, I think the Australian people would demand the government to err on the side of their protection and their safety, and the safety of their families and loved ones. As a result, the committee was satisfied that the bill is an appropriate, proportionate and timely strengthening of the Migration Act. Its provisions would maintain the integrity of Australia's visa framework by upholding decisions that have already been made to cancel or refuse visas for non-Australian individuals who have committed crimes in Australia and who may pose a significant risk to the Australian community in the future. The committee supported the explanatory memorandum's explicit acknowledgement that the bill is a proactive step to uphold existing decisions:
Through these amendments the Australian Government wishes to put beyond doubt that existing decisions to refuse or cancel visas under section 501 of the Act remain valid at law, notwithstanding their reliance on confidential information protected by section 503A.
The committee understood, in considering other concerns raised by the four submitters, that the bill would not affect the right of judicial review for any person negatively affected by a decision that was made referring to information provided under section 503A of the act. Furthermore, the committee noted that the department had clearly stated in its submission that the bill would not prevent a person's right to seek a merits review of a relevant decision to the extent that such review is provided for under the existing law. As a result of that, in its deliberations the committee has recommended the bill be passed. The Greens have, as they've mentioned, issued a dissenting report and a recommendation that the bill not be passed, but I think most Australians would want the parliament to endorse the government's action in protecting their future and the future of their families by cancelling the visas of people who are not Australians and who, really, should not be in Australia. They are not the sort of people that we want in our country.
Senator MOORE (Queensland) (18:22): As we've heard from a number of speakers, this particular bill was considered by the Senate committee, and whilst it was done reasonably quickly, a range of submissions from people interested in this process were taken into account. It is difficult to talk about any of these particular processes. In this case, we can put on record that Labor supports the refusal or cancellation of visas of noncitizens on character or criminal grounds and the removal of criminals from Australia under section 501 of the Migration Act. Section 501, which we've heard about from a number of the senators who are part of the process, sets out when a visa can be refused or cancelled on character grounds: when a person fails, or the minister reasonably suspects that the person does not pass the character test. The legislation sets out the ways that a person can fail the character test. The whole issue of the character test is on record and has been widely discussed both within the area of migration law and throughout the media in recent months.
The core areas which people can fail include: having a substantial criminal record, which people are aware of; having substantial brushes with the law which lead to concerns about their nature and their ability to be an effective citizen of a country; if they were a member of a group or organisation that was involved in criminal conduct—in this case, there has been significant commentary, certainly in my own state, as the result of a number of inquiries and also through the Law Reform Commission, about the particular criminal activities of motorcycle gangs across the whole of this country and now in international affairs, where there are clear links with motorcycle gangs here, particularly in the Asian region—if there is a risk that, while in Australia, the person would engage in criminal conduct, taking into account information about the person and the people with whom they mix; previous conduct that could lead to a genuine suspicion that there would be a possibility that, while in Australia, the person could engage in criminal conduct; and if there was an Interpol notice that the person presents a risk to the Australian community. We've just heard from Senator Macdonald talking about the particular responsibilities of government when there is an issue around genuine risk to Australia, to the safety of Australians, and also of any activities which could be of a criminal nature in our country.
The Migration Amendment (Validation of Decisions) Bill 2017 amends the Migration Act to preserve existing section 501 decisions. Of the submissions that were received by the inquiry, certainly the submission from the department was quite clear about the background to the need for this change and also about the people who would be affected by the change. The department sets out that section 503A of the Migration Act—and a number of senators have particularly drawn attention to section 503A—requires a departmental officer and the Minister for Immigration and Border Protection to protect information from disclosure, including to a court, when it is provided by a gazetted law enforcement or intelligence agency to support a visa application refusal or visa cancellation decision made on character grounds.
Section 503A was introduced by the Migration Legislation Amendment (Strengthening of Provisions related to Character and Conduct) Act 1988, which is when this particular amendment was brought in. It was brought in to facilitate law enforcement and intelligence agencies providing relevant information to the department, while ensuring that the content and sources are protected. This is not used regularly. We're talking about very specialised, quite specific cases where there is a need for real protection. This particular process includes protecting the information from disclosure to a court, a tribunal, a parliament or parliamentary committee, or any other body or person. This process is determined by the intelligence agencies, who have weighed up the value of the information, weighed up the evidence and determined that, for particular reasons of safety and security, this information should not be shared.
We know that the legislation before us has been stimulated by the High Court consideration, and clearly the measures in this bill will amend the legal framework in the act to put beyond doubt that decisions to cancel a visa or refuse a visa application on character grounds will remain effective in the event of the High Court deeming section 503A of the Migration Act invalid. It is not unusual for legislation to come to this place in response to High Court challenges. It's something that the parliament weighs up in terms of the situation, and in this case there has been the movement around the challenge that's in front of the High Court at the moment, the decision on which is due to be brought down. It's very difficult to ever talk about when you will expect a High Court decision, but there is an expectation that that will be soon.
Senator Macdonald actually went into a degree of detail around the types of persons who will be affected by this legislative change. It's important, I think, to reinforce what he said in his contribution about what will actually be impacted and what will not. The department's submission to the Senate Legal and Constitutional Affairs Legislation Committee clearly states that this bill imposes no extra requirements or burden on people seeking a visa, industry bodies, Australian business or residents, as it seeks only to uphold decisions already made. It does not impact future visa cancellations or visa application refusal decisions, nor does it prevent affected individuals from seeking judicial review of their individual decision. I think that is a really important element in terms of consideration of this legislation. It does not preclude judicial appeal, and I think that that is an important process in terms of talking about individual rights. We have spoken before in this place about some changes that have come into migration legislation and about the importance of ensuring that people do have a judicial process that they can follow in terms of their own rights and their cases. It was stated clearly by the department and by other submitters to the legislation committee that this does not prevent affected individuals from seeking judicial review of their individual decisions.
The process that we have is very much based on a balance of responsibilities and on the particular nature of the individuals whose cases are being considered. We look at information around their particular background. We talked about the kinds of things that are taken into account, such as criminal records, whether they are members of groups or organisations that are involved in criminal conduct, the risk that someone would actually be able to have that form of conduct in Australia and whether there's an outstanding Interpol notice. These are areas that are very clearly identified, and the security risks of these areas are exactly—
Sitting suspended from 18:30 to 19:30
Senator PRATT (Western Australia) (19:30): This evening we're discussing the Migration Amendment (Validation of Decisions) Bill 2017. Labor supports the refusal or cancellation of visas of noncitizens on character or criminal grounds, and the removal of criminals from Australia, under section 501 of the Migration Act. We note that section 501 of the Migration Act sets out when a visa can be refused or cancelled on character grounds: when a person fails, or the minister reasonably suspects that the person does not pass, the character test. We know that this legislation is a response to the Graham and Te Puia cases, currently before the High Court of Australia, which are challenging the constitutional validity of section 503A of the Migration Act. When this legislation was brought before this place, the Labor opposition responded by asking for the legislation to be referred to a Senate committee so that we could consider the issues in it, noting that some stakeholders had raised some concerns about the bill. I will note some of those concerns now. It's important to examine the manner in which those concerns will be addressed, as expressed by the government.
Submitters raised a number of matters, including concerns over the retrospective operation of the bill's provisions, the potential denial of natural justice and the right to a fair hearing to some individuals adversely affected by visa decisions, the need to preserve and uphold the constitutional principle of separation of powers, and other matters, including the potential burden on the judiciary from appeals following the High Court's decision. We also note that concerns were raised about the retrospective nature of the bill. The Law Council put in a submission raising concern about the proposed retrospective application of the amendments to holders of cancelled visas or refused visa applicants, noting that they may be denied the opportunity to properly present their case. Submissions also went to issues of natural justice and the right to a fair hearing, with some submitters arguing that the provisions of the bill would result in a number of people being denied a fair hearing of their cases. I note the Law Council suggested that and that Refugee Legal noted that denying individuals a fair hearing of their claims would contravene fundamental principles within Australian law.
The committee, in looking at these issues and reporting, put weight on what the department submitted, which was that the bill does not cancel out natural justice and, indeed, preserves existing rights for relevant individuals to seek appropriate and fair judicial review of decisions to cancel their visas. The department told us that persons who've had their visas cancelled or a visa application refused on the basis of section 503A, protection of information, will remain able to seek judicial review of their visa decision following the commencement of these amendments. The amendments will not affect any review rights afforded to noncitizens under the law. They went on to say:
The amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia. They have had, and continue to have, access to judicial review of this decision and some of these individuals have challenged their cancellation/refusal decisions already.
A number of people raised the separation of powers issue. However, the committee found on balance that those issues had been addressed by virtue of the fact that the bill is an appropriate, proportionate and timely strengthening of the Migration Act, noting that its provisions maintain the integrity of Australia's visa framework by upholding decisions that have already been made to cancel or refuse visas for non-Australian individuals who have committed crimes in Australia or who may pose a significant risk to the Australian community in the future.
We on this side of the chamber note that the High Court is yet to hand down its decision in relation to the particular case I mentioned earlier and that some submitters advocated for this case to be concluded before the bill is further considered in this place. However, we are certainly of the view that the explanatory memorandum's acknowledgement that the bill is a proactive step to uphold existing decisions, pending the High Court's decision, is important. I note the explanatory memorandum says:
Through these amendments the Australian Government wishes to put beyond doubt that existing decisions to refuse or cancel visas under section 501 of the Act remain valid at law, notwithstanding their reliance on confidential information protected by section 503A.
We have noted, importantly, that the department has very strongly said that it does not affect judicial review for any person negatively affected by a decision. That was made in reference to information provided under section 503A of the act. We note that the department has clearly stated in its submission that the bill would not prevent a person's right to seek merits review of a relevant decision, to the extent that such a review is provided for under existing law.
That brings us to a place where the Labor Party believes that those issues, with the government's assurance, have been addressed. We note that it's important that we retain the capacity to refuse or cancel visas of noncitizens on character or criminal grounds and that it's important that we are able to remove criminals from Australia under section 501 of the Migration Act. Section 501 of the Migration Act sets out when a visa can be refused or cancelled on character grounds when a person fails to pass a character test or the minister reasonably suspects that the person does not pass a character test. I know from my own experience as a senator that these situations do not infrequently crop up and that ministerial review is often used with a good level of discretion to enable people to stay in Australia if exceptional circumstances apply.
I know many of us in this place will have had the situation where someone has committed, admittedly, a very serious offence but pleas on a range of compassionate grounds have been made to the minister to reconsider the cancellation of the visa, provided that that person is not deemed to be a significant security risk to Australia. I certainly know of cases, such as young people who have committed serious offences and have served their jail time and faced being deported to countries where they had very little of the language and very little in the way of family networks. It's important that that kind of discretion exists within the act, but it's also important that such provisions not be abused in ways that mean that when someone should reasonably have their visa cancelled, we are not able as a nation to do so.
I note that failing a character test is a significant thing. It means someone has a substantial criminal record. It means they may have been a member of a group or organisation that's involved in criminal conduct and there's a risk that while in Australia the person would engage in criminal conduct, or, if there's an Interpol notice on that person, they present a risk to the Australian community. These are not insignificant matters as far as being able to remove persons who have failed such a character test.
We note the effect of the bill does indeed preserve the validity of past decisions in the event that section 503A itself is found not to be valid as a result of the case that's currently before the court. We on this side of the chamber don't believe it's appropriate to comment on this case while those matters are still before the court, so I won't offer any comment. However, we do recognise that immigration ministers make decisions to cancel visas based on the best information they have available to them. That includes protected information from our security and intelligence agencies, and according to the Commonwealth's interpretation of the Migration Act. Indeed, I note that some of that information comes from members of the community and, indeed, members of parliament where they believe there may be mitigating circumstances against that character assessment. We note that if visa applicants are not satisfied with a decision, they do have the opportunity to lodge an application for review. That capacity remains with the passing of this legislation.
We are pleased that we were able to refer this bill to the Senate legal and constitutional affairs committee to allow for the short inquiry that's taken place, and that committee, of which I have been part, has recommended that the bill indeed be passed. I want to note the submissions by the Department of Immigration and Border Protection, Dr Martin Bibby, Refugee Legal and the Law Council of Australia. I note that they did balance out some of the issues and that the department needed to respond to the issues that were raised by those submitters. The Law Council did indeed express a view that the bill should be held over until the High Court makes a decision. However, the Labor Party agrees with the government that it is in Australia's best interests to preserve the validity of affected past decisions to refuse a visa application on character grounds.
I remind the Senate that in January the Commonwealth Ombudsman released two reports on Australia's immigration system. The reports highlighted significant failures by the minister and the department to manage the number of people in detention, leading to significant mismanagement of cases. One of the ombudsman's reports concerned the administration of section 501 of the act, and is therefore, in our view, relevant to this bill. The report pointed to the fact that people being held unnecessarily for long periods of time—and potentially indefinite periods of time—in immigration detention was a significant concern. It's beyond question that noncitizens who commit serious offences in our nation should expect to be deported. But that does not mean the minister should act in ways that leave families and children in limbo and increase their distress. I have certainly seen, through my own experience as a senator, those kinds of cases come before me where that kind of distress is caused.
Labor wants to continue to uphold a bipartisan commitment to keeping Australia and Australians safe. We're committed to upholding the integrity of the Migration Act. This includes the ability of law enforcement and intelligence agencies to freely provide the minister with advice. But we on this side of the chamber express our commitment to continuing to hold the minister to account for failures of the kind set out in the ombudsman's report, which are significant and concerning. With that warning, I express Labor's support for this bill.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (19:45): I thank all senators for their contributions to the second reading debate on the Migration Amendment (Validation of Decisions) Bill 2017. I note that the bill was referred to the following Senate committees: the Legal and Constitutional Affairs Legislation Committee, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights. I thank the Legal and Constitutional Affairs Legislation Committee for its consideration of the bill and note its recommendation to pass the bill unamended.
As you know, this bill addresses the potential risk to the community arising from current proceedings in the High Court of Australia. The purpose of the bill is to uphold the visa cancellations and applications refusals on character grounds of certain noncitizens who have committed serious crimes in Australia or pose an unacceptable risk to the safety of the Australian community. In terms of the types of criminal activity that would lead to a visa refusal or cancellation based on character grounds, a noncitizen who holds or applies for a visa may have their visa cancelled or application refused if they don't meet the character test. This includes if they have a substantial criminal record, are a member of or have an association with on outlaw motorcycle gang, have been convicted of a sexually based offence involving a child, or pose a threat to Australia's national interest. Again, I believe the Australian community would well and truly be backing the government in this regard.
Specifically, the bill amends the Migration Act 1958 to preserve existing section 501—character decisions which have relied on information which is protected from disclosure under section 503A of the act. The amendments in this bill will not impose extra requirements or burden on affected noncitizens or prevent affected noncitizens from seeking judicial review of their individual visa cancellation or visa refusal decision. Additionally, it will not impact future visa cancellation or visa application refusal decisions. Rather, the amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia.
Section 503A of the act protects information from disclosure when it is provided to the Department of Immigration and Border Protection by gazetted law enforcement or intelligence agencies to support a section 501 character visa application refusal or cancellation decision. This protects the information from disclosure to a court, a tribunal, a parliament, a parliamentary committee or any other body or person. The ability to protect information from disclosure is critical to the continuation of the critical relationship between the Department of Immigration and Border Protection and law enforcement and intelligence agencies. Continuing to successfully counter crime is dependent on agencies like the Australian Federal Police and the Australian Criminal Intelligence Commission being able to share information on the activities of non-citizen criminals with the Department of Immigration and Border Protection while their intelligence and sources remain protected.
The strengthening of the character test in late 2014 has led to the cancellation of over 2½ thousand visas, including more than 140 visas held by organised crime figures. Without the information supplied by intelligence agencies, these criminals may have kept their visas and been free to continue their illicit activities. The amendments in this bill proactively address the risk to the safety of Australians and reflect the government's and the Australian community's low tolerance for criminal behaviour by those who are given the privilege of holding a visa to enter into and stay in Australia. With that contribution, I commend the bill to the Senate.
The ACTING DEPUTY PRESIDENT ( Senator Leyonhjelm ): The question is that this bill now be read a second time.
The Senate divided. [19:55]
(The Acting Deputy President—Senator Leyonhjelm)
Third Reading
The ACTING DEPUTY PRESIDENT ( Senator Leyonhjelm ) (19:58): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires the bill be considered in Committee of the Whole.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (19:58): I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
In Committee
Consideration resumed.
The CHAIR (18:03): The question is that amendments (1) to (20), (22), (23) and (36) to (38) on sheet 8144 be agreed to.
The committee divided. [20:03]
(The Chair—Senator Lines)
The TEMPORARY CHAIR ( Senator Leyonhjelm ) ( 20:07 ): Senator Xenophon or Senator Rhiannon, are you seeking to move your amendments?
Senator XENOPHON (South Australia) (20:07): I can indicate that I will no longer be proceeding with the amendments on sheet 8214 in my name, because they have effectively been dealt with by the amendments moved by Senator Cameron in terms of Administrative Appeals Tribunal reviews.
Senator RHIANNON (New South Wales) (20:08): by leave—I move the Greens amendments (1) to (3) on sheet 8145 together:
Schedule 1, item 17, page 9 (lines 11 to 16), omit subsection 558A(2), substitute:
(2) A person is a responsible franchisor entity for a franchisee entity of a franchise if:
(a) the person is a franchisor (including a subfranchisor) in relation to the franchise; or
(b) the person:
(i) is a related body corporate of a franchisor (including a subfranchisor) in relation to the franchise; and
(ii) the person has a significant degree of influence or control over the franchisor (or subfranchisor).
Schedule 1, page 13 (after line 29), after Part 2, insert:
Part 2A—Recovery of unpaid amounts for franchisee employees
Fair Work Act 2009
17A After subsection 9(5B)
Insert:
(5C) Part 6-4C provides for the recovery of unpaid amounts for franchisee employees.
17B Section 12
Insert:
apparent responsible franchisor entity: see subsection 789GE(2).
franchisee employee: see subsection 789GC(1).
franchisee employer: see subsection 789GC(1).
franchise-related work: see subsection 789GC(1).
17C Section 12 (definition of unpaid amount)
Repeal the definition, substitute:
unpaid amount:
(a) in relation to TCF work performed by a TCF outworker: see subsections 789CA(1) and (4); and
(b) in relation to franchise-related work performed by a franchisee employee: see subsection 789GC(1).
17D After paragraph 789BA(1) (f)
Insert:
(fa) Part 6-4C (recovery of unpaid amounts for franchisee employees);
17E After Part 6-4B
Insert:
Part 6-4C—Recovery of unpaid amounts for franchisee employees
Division 1—Introduction
789GA Guide to this Part
This Part provides for employees employed by a franchisee entity to recover unpaid remuneration from the responsible franchisor entity for the franchisee entity.
789GB Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.
Division 2—Recovery of unpaid amounts for franchisee employees
789GC When this Division applies
Franchisee employees not paid for work in certain circumstances
(1) This Division applies if:
(a) a franchisee entity is the employer (the franchisee employer) of an employee (the franchisee employee); and
(b) the franchisee employee performs work (franchise-related work) for the franchisee employer for the purposes of business activities carried on by the employer under the franchise; and
(c) the franchisee employer does not pay an amount (the unpaid amount) that is payable, in relation to the franchise-related work, by the employer:
(i) to the franchisee employee; or
(ii) to another person, for the benefit of the franchisee employee;
on or before the day when the amount is due for payment; and
(d) the unpaid amount is payable under:
(i) a contract; or
(ii) this Act, or an instrument made under or in accordance with this Act; or
(iii) another law of the Commonwealth; or
(iv) a transitional instrument as continued in existence by Schedule 3 to the Transitional Act; or
(v) a State or Territory industrial law, or a State industrial instrument. 1828
(2) Without limiting paragraph (1) (c), the unpaid amount may (subject to paragraph (1) (d)) be an amount of any of the following kinds that relates to (or is attributable to) the franchise-related work:
(a) an amount payable by way of remuneration or commission;
(b) an amount payable in respect of leave;
(c) an amount payable by way of contributions to a superannuation fund;
(d) an amount payable by way of reimbursement for expenses incurred.
789GD Liability of responsible franchisor entity for unpaid amount
(1) Each responsible franchisor entity for the franchisee employer is liable to pay the unpaid amount.
(2) If there are 2 or more responsible franchisor entities for the franchisee employer, those entities are jointly and severally liable for the payment of the unpaid amount.
(3) Subject to subsection 789GG(2), this section does not affect the liability of the franchisee employer to pay the unpaid amount.
789GE Demand for payment from an apparent responsible franchisor entity
(1) The franchisee employee, or a person acting on behalf of the franchisee employee, may give an apparent responsible franchisor entity for the franchisee employer a written demand for payment of the amount that the franchisee employee reasonably believes the entity is liable for under section 789GD in relation to the franchise-related work.
(2) An entity is an apparent responsible franchisor entity for the franchisee employer if the franchisee employee reasonably believes that the entity is a responsible franchisor entity for the franchisee employer.
(3) The demand must:
(a) specify the amount, and identify the franchisee employer; and
(b) include particulars of the franchise-related work to which the amount relates, and why the amount is payable by the entity to which the demand is given; and
(c) state that if the specified amount is not paid by a specified time, proceedings may be commenced against the entity under section 789GF.
(4) The time specified for the purpose of paragraph (3) (c) must not be less than 14 days after the demand is given to the entity.
789GF Court order for entity to pay amount demanded
(1) If:
(a) in accordance with section 789GE, an apparent responsible franchisor entity for the franchisee employer has been given a demand for payment of a specified amount; and
(b) the amount has not been paid in full by the time specified in the demand;
a person or organisation specified in subsection (2) (the applicant) may commence proceedings for an order requiring the apparent responsible franchisor entity or the responsible franchisor entity for the franchisee employer to pay the specified amount.
(2) The proceedings may be commenced:
(a) by the franchisee employee; or
(b) on the franchisee employee's behalf, by:
(i) an organisation that is entitled to represent the industrial interests of the franchisee employee; or
(ii) an inspector.
(3) The proceedings may be commenced in:
(a) the Federal Court; or
(b) the Federal Circuit Court; or
(c) an eligible State or Territory court.
(4) Subject only to subsections (5) and (6), the court may make an order requiring a responsible franchisor entity for the franchisee employer to pay, to the franchisee employee or to another person on the employee's behalf, the specified amount (or so much of that amount as the applicant alleges is still owing).
(5) The court must not make an order under subsection (4) in relation to a responsible franchisor entity for the franchisee employer if the entity satisfies the court that the entity is not liable under section 789GD to pay any of the specified amount.
(6) If a responsible franchisor entity for the franchisee employer satisfies the court that the amount of the entity's liability under section 789GD is less than the specified amount (or is less than so much of that amount as the applicant alleges is still owing), the court must not make an order under subsection (4) requiring the entity to pay more than that lesser amount.
(7) In making the order, the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the unpaid amount was due for payment by the franchisee employer and the day when the order is made.
(9) Proceedings cannot be commenced under this section more than 6 years after the time when the unpaid amount became due for payment by the franchisee employer.
789GG Effect of payment by entity (including entity's right to recover from franchisee employer)
(1) This section applies if an entity pays an amount in discharge of a liability of the entity under section 789GD, or pursuant to an order under section 789GF. 1830
(2) The payment discharges the liability of the franchisee employer for the unpaid amount, to the extent of the payment. This does not affect any right that the entity has to recover an equivalent amount from the franchisee employer (under this section or otherwise) or from another person, or to be otherwise indemnified in relation to the making of the payment.
(3) The entity may, in accordance with this section, recover from the franchisee employer an amount (the recoverable amount) equal to the sum of:
(a) the amount paid by the entity as mentioned in subsection (1); and
(b) any interest paid by the entity in relation to that amount pursuant to an order under section 789GF.
(4) The entity may recover the recoverable amount:
(a) by offsetting it against any amount that the entity owes to the franchisee employer; or
(b) by action against the franchisee employer under subsection (5).
(5) The entity may commence proceedings against the franchisee employer for payment to the entity of the recoverable amount. The proceedings may be commenced in:
(a) the Federal Court; or
(b) the Federal Circuit Court; or
(c) an eligible State or Territory court.
(6) The court may make an order requiring the franchisee employer to pay the entity the recoverable amount (or so much of it as is still owing) if the court is satisfied that:
(a) this section applies as mentioned in subsection (1); and
(b) the entity has not otherwise recovered the recoverable amount in full from the franchisee employer.
(7) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the recoverable amount was paid by the entity and the day when the order is made.
(9) Proceedings cannot be commenced under this section more than 6 years after the time when the entity paid the recoverable amount.
789GH Division does not limit other liabilities or rights
Nothing in this Division limits any other liability or right in respect of the entitlement of the franchisee employee to the unpaid amount (or to have the unpaid amount paid to another person for the employee's benefit).
Schedule 1, page 31 (after line 25), after item 19, insert:
19A Application of the amendments—recovery of unpaid amounts for franchisee employees
Part 6-4C of the amended Act applies in relation to an amount that is payable by a franchisee employer if the franchise is entered into on or after the commencement of this Part.
One thing that's really come out in this debate is that the government are making out that they're looking after vulnerable workers, but that argument has fallen over time and time again. If they were really sincere, this is where they would support these amendments, because these amendments are a simple package dealing with how we can recover the unpaid amounts for franchise employees. That's the essence, surely, of what this legislation is about. We're talking about vulnerable workers and we're talking about them being ripped off. Surely we should be doing something about it. This doesn't just put some airy-fairy measures in place; it gets to the heart of the issue—getting the money back to them. Considering the lateness of the hour and my voice, I will leave it at that, but I move these amendments and urge all senators to support them.
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (20:09): The government opposes the Greens amendments outlined in item (1), which would extend the bill to cover related bodies corporate and remove the control test in proposed paragraph 557A(2)(b). This amendment would extend the coverage of franchisor obligations to also include related bodies corporate of the franchisor. This amendment would potentially capture all kinds of arrangements that have only a loose connection with a franchise business—for example, a subsidiary of a franchisor operating an entirely unrelated business. The proposed amendment fails to target those with a responsibility to identify and rectify underpayments. It ignores that businesses in the best position to address noncompliance with workplace laws are those with control and influence over the affairs of the underpaying entity. For that reason, the government opposes the amendment.
In relation to the amendments outlined in items (2) and (3), which impose joint employer responsibilities on franchisors and franchisees—so in practice both would actually have the same employment obligations—this amendment would allow franchisee employees who are underpaid to demand that the franchisor rectify the underpayment. The amendments impose a presumption of guilt on franchisors and could simply incentivise struggling franchisees to underpay workers and pass the buck to the franchisor. This is obviously bad for workers, bad for business and bad for jobs. The government does not support imposing direct liability on franchisors for their franchisees' wages bill. Franchisors that take reasonable steps to prevent contraventions of workplace laws should not be subject to further regulation. On that basis, the government will also be opposing those particular amendments.
Senator CAMERON (New South Wales) (20:11): Can I just indicate that the opposition will not be opposing these amendments. Senator Rhiannon is clearly motivated by ensuring that the working class in this country are not ripped off. Senator Rhiannon's got a long history of being engaged in protecting workers whenever workers are under attack. I've been on many picket lines with Senator Rhiannon. I have been involved in many discussions and debates about workplace laws. I have been to anti Work Choices campaigns with Senator Rhiannon. One thing I can say about Senator Rhiannon is that she stands up for the working class in this country and she understands the issues that affect working people far better than Senator Cash ever could.
We think that this bill has just about been talked out. Senator Rhiannon is doing what she always does, and that is to attempt to ensure that workers are not exploited and to ensure that there are checks and balances in the system that will give fair and reasonable workplace laws. We are of the view that Senator Rhiannon is always genuine about workplace laws and always out there supporting the trade union movement and supporting workers far better than anyone else. As I said, I have known Senator Rhiannon for decades. She's been on more picket lines than even I can poke a stick at, and she's always genuine in her view. On the basis of that, we will not oppose these amendments.
The CHAIR: The question is that amendments (1) to (3) on sheet 8145 be agreed to.
The Senate divided. [20:18]
(The Chair—Senator Lines)
Third Reading
Senator CASH (Western Australia—Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (20:21): I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017
Second Reading
Consideration resumed of the motion:
That this bill be now read a second time.
Senator CAMERON (New South Wales) (20:22): I rise to indicate that Labor will support the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017, subject to an amendment which protects the penalty rates of 700,000 Australian workers across the nation. This bill will amend the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The bill will repeal the requirement for the Fair Work Commission to conduct four-yearly reviews of modern awards from the beginning of 1 January 2018. It will allow the Fair Work Commission to overlook minor procedural or technical errors when approving an enterprise agreement, where those errors were not likely to have disadvantaged employees, including errors related to the notice of employee representational rights requirements. It will ensure that the existing complaint-handling powers of the Minister for Employment and the President of the Fair Work Commission apply to Fair Work Commission members who formerly held office in the Australian Industrial Relations Commission and will apply in a modified form the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 to Fair Work Commission members.
The bill's measures are contained in four schedules. Schedule 1 deals with the repeal of the four-yearly reviews of modern awards by the Fair Work Commission. Schedule 2 deals with the factors considered by the Fair Work Commission when approving an enterprise agreement. Schedule 3 deals with a modified application of the JMI(PC) Act to Fair Work Commission members and application of the Fair Work Act to Fair Work Commission members who formerly held office in the AIRC. Schedule 4 provides for application and transitional provisions in relation to the amendments made by schedules 1 to 3 of the bill. The principles contained in the bill are supported by the opposition, and we are aware of supportive correspondence to the government from the Ai Group, the Australian Chamber of Commerce and Industry and the ACTU.
I want to turn to the burning issue of inequality and its effect on Australian workers and families. Inequality is increasing within Australia. Despite the assertions of Treasurer Morrison that inequality is not increasing, the public, low-income Australians and the working poor understand that Treasurer Morrison is completely out of touch. This is a Treasurer divorced from the social and economic realities facing Australian families as they struggle to make ends meet. It's not only the Treasurer who is out of touch; this divided rabble of a government has no comprehension of or empathy for the growing number of Australians surviving week to week, battling to put food on the table and shoes on their children's feet. I have noted on many occasions in this chamber the failure of the National Party to stand up for their constituents in rural and regional Australia, who would be particularly affected by the attacks on penalty rates. We have former Senator Joyce, now pretending to be the Deputy Prime Minister, even though he's not eligible to be in parliament, saying nothing about the attacks on working families via these cuts to penalty rates in the New England region. Penalty rate cuts have been promoted by coalition politicians and businesses with vested interests.
Our amendments to this bill are in the exact terms of the amendments proposed by the member for Dawson, Mr George Christensen. Labor will do whatever we can to protect penalty rates, because we know how important they are to Australian families. The Senate has already passed my private member's bill to protect penalty rates, but the government has blocked its passage in the House. We know that the member for Dawson, despite all of his big talk about standing up for workers and their take-home pay, failed to vote for Labor's bill to protect penalty rates, on three separate occasions. Mr Christensen introduced a private member's bill in the House but failed to move to bring his private member's bill on for debate. It was only when Labor moved amendments to the bill, when it was before the House, which would have given effect to the provision of Mr Christensen's private member's bill, that he was forced to cross the floor and support Labor. While these amendments have some deficiencies and are clearly inferior to Labor's bill, if this is the only way that we can get this parliament to overturn the decision of the Fair Work Commission to slash penalty rates and prevent it from ever happening again then this is what we will do. If the Senate passes these amendments then the House will be forced to deal with them.
Labor asks the Senate as a matter of urgency to pass these amendments and give the government, Mr Christensen and the crossbench one last chance to stop these penalty rate cuts that will create so much hardship for the most vulnerable workers in the country. This will be both an opportunity and a test for National Party senators and Liberal senators who live in regional Australia to stand up for their communities. It beggars belief that coalition senators have supported a $65 billion handout to business and at the same time have actively defended and supported the worst decision ever in the history of the Fair Work Commission. Trickle-down economics does not work. There are no examples of trickle-down economics delivering on the ideological and theoretical outcomes claimed by neoliberal economists, conservative politicians and rent-seeking businesses. The National Party should stand up and support Labor's amendment that will protect 700,000 Australian workers from cuts to their penalty rates. The National Party should stand up for small business and the farming community, who rely on the bulk of Australians having sufficient disposable income to buy the goods and produce of regional and rural Australia.
Beyond the overall negative economic impacts, there is also evidence that implementation of the commission's decision would be particularly harmful to regional economies. Modelling by the McKell Institute on the impact of penalty rate cuts on regional communities estimated that, for the partial abolition of penalty rates in the retail and hospitality sectors, the size of the cuts in this decision would result in workers losing between $370.7 million and $691.5 million a year. This would lead to a reduction in spending of between $174.6 million and $346.5 million per year across local economies. How could the National Party support this decision and abandon its constituents across the country?
Under the proposed cuts to penalty rates, the most that low-paid and financially vulnerable workers can hope for is to work the same hours for less money or to work more hours for the same money. The opposition agrees with the Fair Work Commission in rejecting the unrealistic suggestion of the Productivity Commission that employees 'can seek other jobs, increase their training and make other labour market adjustments'. Is it any wonder that I have been a long-term critic of the Productivity Commission? In its decision the Fair Work Commission concluded that:
A detailed assessment of the impact of a reduction in Sunday penalty rates—
In the awards—
… on the national economy is not feasible on the basis of the limited material before us.
It is Labor's view that this is a significant flaw in the commission's decision.
If the government possessed evidence of a positive impact to the economy from cuts to penalty rates, it should have made a submission to that effect. The reason the government did not make this submission is that there is no evidence of a positive impact to the economy. On 2 March 2013, the Prime Minister asserted, 'The commission has found that cutting penalty rates would create tens of thousands of jobs.' This assertion is politically motivated, incorrect and one that not even the employers argued in the current four-yearly review. As the commission noted, the hospitality employers and the catering industrial do not advance the bold proposition that cutting penalty rates will increase employment. Labor noted that what the commission actually concluded was that a reduction in penalty rates in the fast-food award may result in a modest increase in employment, 'despite a paucity of direct evidence' from industry participants. There was no suggestion that tens of thousands of jobs will be created in the hospitality, retail and pharmacy industries, with the commission merely concluding that a reduction in penalty rates is likely to lead to some additional employment—it is not a very resounding analysis of the arguments we have heard from the government—because of the common evidence of the employers that 'owner operators would employ people, rather than work themselves', and, 'it would increase the level of services with consequent increases in employment or hours worked'.
The Fair Work Commission has accepted the Productivity Commission's assessment that 'any potential positive employment effects from a reduction in penalty rates are likely to be reduced due to substitution and other effects.' The suggestion that a reduction in penalty rates could lead to reduced prices and thereby increased employment is flawed. The evidence base for an increase in employment is not strong and relies on economic simulation models, rather than strong empirical evidence. Such modelling assumes the relationship rather than finds it and, as such, it should be treated with real caution.
A realistic result of the proposed cuts to penalty rates is that, rather than reducing prices or employing more staff, employers may retain any savings in wages as profits. Given that company profits are at a record high at the same time as wage growth is at record lows, this would not be an unrealistic result. In all the circumstances, the commission's conclusion was that while there may be some positive employment effects, and it is difficult to quantify the precise effect, this not sufficient justification for inflicting this pay cut on some of the lowest-paid and most vulnerable workers. In the opposition's submission to the commission, we outlined that the government has downgraded its forecast for employment growth and wages growth, employment growth has halved and remains well below trend, full-time jobs have declined by 23,000, job creation is dominated by part-time work, underemployment remains near record highs at 1.1 million and wages growth has fallen to new record lows at 1.9 per cent.
The risk to economic activity from lower incomes comes at a time when the government and many major economists are warning about the risk to consumption and overall GDP growth, particularly from subdued wage growth. According to the 2016-17 Mid-Year Economic and Fiscal Outlook, factors such as sustained subdued income growth may result in slower growth in consumer spending. The RBA has said:
Domestic wage pressures remained subdued and household income growth had been low, which, if it were to persist, would have implications for consumption growth and the risks posed by the level of household debt.
The IMF recently noted that:
… there remain significant risks and uncertainties, notably weaker-than-expected domestic consumption …
And that:
… growth could be slower, as consumption growth could remain lackluster with continued low wage growth …
According to ANZ:
… we see any significant acceleration in consumer spending as challenging given ongoing weakness in wage growth and high household debt.
According to the CBA, the Commonwealth Bank:
Consumer spending growth is constrained by weak wages growth and the predominance of part- over full-time jobs' growth.
This evidence suggests that cutting penalty rates will only increase the risk of slower consumption and economic growth.
In the face of coalition, right-wing media and business pressure for penalty rate cuts, the Fair Work Commission has made a historically bad decision. There was no evidence before the commission that cuts to penalty rates would create more jobs. There were assertions by business lobbyists and advocates that more jobs would be created. There was no specific evidence presented other than assertions based on ideological and theoretical claptrap. The Fair Work Commission itself considered that their decision would create hardship for many Australian workers. It beggars belief that a decision that will cost individual workers between $39 and $127 on an eight-hour Sunday shift could be supported by the coalition. Treasury's Mid-Year Economic and Fiscal Outlook 2016-17 states:
Government receipts, although growing, are expected to be affected by softer domestic prices and wages growth.
… … …
If inflation and wage growth remain low, this would slow nominal GDP growth and in turn have adverse consequences for tax receipts, somewhat offset by a reduction in payments.
Treasurer Morrison stated:
Lower wages growth and profits have an obvious impact on government revenue.
The Governor of the Reserve Bank has called on workers to start demanding large pay rises from their bosses. Philip Lowe said Australia's economy was suffering a crisis in wage growth and workers ought to realise that the relatively low unemployment rate meant they could start asking for a larger share of the nation's economic pie. The governor told a conference at the Australian National University that the labour market was in better shape than some critics are suggesting. He said, 'The crisis really is in wage growth.' He said that despite the relative strength in the labour market too many workers were putting job security ahead of pay rises, partly because they were worried about competition from robots and foreigners.
This is the Governor of the Reserve Bank. What he is saying is that forcing more wage restraint on workers is going to have an effect on the economy. We know that cuts to the take-home pay of retail and hospitality workers, which have already commenced, are just the start. The Fair Work Commission is still hearing applications which would have the result, if successful, of cutting Sunday penalty rates in the clubs award, the hair and beauty award and the restaurant award, and the Sunday shiftwork loading is under review in the retail award. These will have massive effects in regional and rural Australia. These will have significant effects on the buying capacity of ordinary people in regional and rural Australia. These will have an effect on farmers, small business and medium-sized business in rural and regional Australia.
When I moved my bill on penalty rates last time, it was supported by One Nation and by the Xenophon party. If they are going to be consistent they should support these amendments to ensure that the position they adopted on my previous bill is carried through to this bill and that they protect the penalty rates of workers who are doing it tough, workers who are under the pump and do not need further cuts to their buying power.
Senator PATERSON (Victoria) (20:42): It is always a treat to be on the receiving end of a speech from Senator Cameron, late on a Monday night, about an industrial relations issue, and that speech was no exception. It didn't relate very much at all, though, to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017, which we have in front of us. In fact, apart from a very brief acknowledgement at the beginning that we were debating a government bill and the opposition would be supporting it, that was about all that was said on the bill. What we did get was a real treat: Senator Cameron's views on inequality—the catch-all complaint of the Labor Party for every social ill, perceived or real; Senator Cameron's views on the Deputy Prime Minister's citizenship and eligibility to sit in the House of Representative—perhaps somewhat premature before the High Court decision on the matter. We got treated to a lecture on trickle-down economics, an economic philosophy that exists only in the minds of Senator Cameron and other socialists, who like to invent a caricature of their opponents' views on the world rather than actually understanding them. Of course, we got to hear about Senator Cameron's proposed amendments on penalty rates, which I will come to in a moment.
Before I do, let me state for the record why we are here, which is to fix a problem identified in the industrial relations system put in place by the government that Senator Cameron was part of, the previous government, which is the four-yearly reviews of the award system. We are doing so at the urging of not just the business sector but also the union movement. I want to quote from a letter dated 17 November 2016. It is from the Ai Group, the Australian Chamber of Commerce and Industry and the ACTU. They are three logos you don't often see on the same letterhead, but nonetheless they came together over this issue to write to the Minister for Employment, Michaelia Cash. They wrote to her to raise their concerns about the four-yearly review, and they say:
In the consultation processes associated with the Productivity Commission's Review of the Workplace Relations Framework, a clear position was stated by employer associations and the union movement that four yearly reviews of modern awards ought not continue to be a feature of that framework.
The current review has been continuing for nearly three years and there are matters programmed to continue well into 2017. The next review is scheduled to commence in 2018. The cycle of almost continuous review sits uncomfortably with the stated objective in the act of a modern awards system that is 'simple, easy to understand, stable and sustainable'. In addition, the resource demands upon the Commission and the parties have been substantial.
It concludes, after making further points in favour of changing the laws that Labor put in place:
We commend our proposal to you and look forward to the opportunity to progress it as a priority in this term of Government.
But, instead of facilitating this joint employer-union priority, which they had come together to lobby the government to address, and which the government is responsibly acting upon, those opposite are seeking to frustrate, delay, politicise and make more difficult what should be an easy process—an easy fix.
This is one of the many reasons so many Australians are frustrated with the workings of parliament. What they have been seeing in this debate is bipartisan consensus—consensus not just within the parliament but outside the parliament, from bodies that are normally in conflict with each other and which normally have disagreement, but, on this, are unanimous. This is an issue and it needs to be fixed. It will be to the benefit of workers and employers and it will be to the benefit of employer associations and unions. Yet the government's attempt to fix it are being frustrated in a ridiculously politicised way by involving a non-related industrial relations issue.
As Senator Cameron himself mentioned, he has brought his own private member's bill to this chamber before to have it voted on, on this very issue. There's nothing stopping him from seeking to do that again, in many different ways, if he chooses. But why is it necessary to bring it into this debate? Why is it necessary to make this debate unnecessarily and needlessly complex and delay the passage of what should be non-controversial legislation?
Of course, we know on the issue of penalty rates that the Labor Party—and particularly the Leader of the Opposition, Mr Shorten—have displayed extraordinary hypocrisy. The government does not agree with the opposition's approach of regulating wages through legislation. We agree with their former position of allowing the Fair Work Commission to be the independent umpire that sets these rates. We know that they at least used to believe that position—when the Fair Work Commission was making decisions that they agreed with. They like umpires who make one particular type of decision, but, when the independent umpire, in its wisdom, after considering the evidence, made a different decision, those opposite decided that the idea of an independent umpire was not such a good one after all, and we should have an extraordinary change to our industrial relations system—the legislative setting of pay and conditions, which would be an extraordinarily cumbersome and complex thing to do. That is one of the reasons why the government does not support the amendments and did not support Senator Cameron's bill when it was here previously.
The other very fundamental reason we don't support it is that we know that those opposite are very happy to see penalty rate cuts occur; it's just that they don't want to see them occur via the Fair Work Commission in the awards system, which primarily benefits small business. They would rather see them happen through the enterprise bargaining agreement system, where big businesses and big unions get together and collude and do cosy deals that slash penalty rates, including for the vulnerable workers Senator Cameron says he is concerned about and including for workers on weekends and Sundays. Yet we don't hear any concern from Senator Cameron about this. We don't see a bill from Senator Cameron to prevent this. We don't see any proposed intervention to the EBA system. All we see is the proposed radical intervention into the Fair Work Commission system—which, as I said, primarily benefits small business. I think it is telling that the modern Labor Party is happy to have these cosy deals between unions, like the SDA, and major retailers which reduce penalty rates—which they are supposedly concerned about—but they are uncomfortable with allowing an independent umpire to make the same decision for workers in other industries and other businesses.
I just want to go through a few examples of this hypocrisy, because it is not just a theoretical hypocrisy; it is a hypocrisy that they have demonstrated time and time again—particularly in the career of the Leader of the Opposition as a union leader prior to entering parliament, where he himself oversaw, signed off and ticked off agreement after agreement after agreement which reduced penalty rates for workers in cosy deals with big business. Of course, it wasn't just his union, but his union was one of the repeat offenders.
When he ran the AWU, his union did deals with not only Big W but also Target and Just Jeans, which cut penalty rates for workers in Queensland from 200 per cent to 150 per cent—the same rate that the Fair Work Commission is modifying the award rate to over a number of years. Workers at Rydges Tradewinds in Cairns got no penalty rates. At a company called Cleanevent, which has been mentioned in this place from time to time, Mr Shorten and his union stripped penalty rates for low-paid cleaners with no compensation. At the same time, his union accepted payments from the company. We can only but wonder what role those payments might have played in ensuring that that deal was achieved. For years, big businesses and big unions have been making these agreements to cut Sunday penalty rates, particularly in the retail and hospitality industries, and we've heard not a peep out of those opposite about it. Mr Shorten is fine with lower penalty rates when he does it and when his union mates do it for big businesses. He only opposes it when it happens through the independent umpire for small business.
What the Fair Work Commission's decision actually does is levels the playing field. Small business have been paying an extraordinarily higher rate of pay for their workers on Sundays than big businesses, and this is a fundamental inequity in our economy that the Fair Work Commission goes part of the way to addressing, because big businesses can use their power with their cosy deals with big unions to cut these rates and effectively have an unfair competitive advantage over small businesses. A small-business retailer does not have the resources to reach these cosy EBA deals, and they don't have the same opportunity to pay their workers a competitive rate on a Sunday. As a result, a lot of them are either going out of business or not opening on Sundays at all and denying their employees the opportunity to work. Many of those employees may, in fact, have to choose to walk across the road and work for Big W, Target or Just Jeans where they'll get less than they did working for a small business.
Here are some concrete examples of this. A bed and breakfast, for example, must pay $10 more per hour than a five-star hotel. A family chicken shop must pay $8 an hour more than KFC. A family-owned takeaway must pay $8 an hour more than McDonald's. A family greengrocer must pay $5 more an hour than Woolworths. A family pizza takeaway joint must pay $8 more an hour than Pizza Hut. A boutique clothes shop must pay $7 more an hour than David Jones. A family bookshop must pay $8 more an hour than Target. A family newsagent must pay $7 an hour more than Officeworks. A family bottle shop must pay $7 an hour more than Dan Murphy's. And a family hardware store must pay $5 an hour more than Bunnings Warehouse.
I strongly suspect that that this is a state of affairs which, in his heart of hearts, Senator Cameron is uncomfortable with and does not support. I am sure, in his record as a union leader, he would not have agreed to deals like this, but the reality is he has to support his leader. He is part of the front bench of Bill Shorten, and he is saddled with Bill Shorten's record as a union leader for years prior to entering parliament. He ran a union that was willing to do these sorts of deals. I'm sure Senator Cameron wouldn't have done those deals, but Mr Shorten did. Yet, what we have here today is Senator Cameron in here defending these practices, justifying these practices and trying to put in place, in our Fair Work Commission system, a workaround that will allow these practices to continue and will come at the expense of workers and employers in the small-business sector who rely on the award system.
To quote the former ACTU president and Labor minister Martin Ferguson:
In my opinion, the campaign of the Labor Party, in association with the union movement, is based on hypocrisy and dishonesty when you look at the nature of agreements that have existed for many, many years. But they now condemn the Fair Work Commission for having the decency to give small business the same benefits.
The Fair Work Commission has cited many examples of owners who work Sundays for free but would rather hire staff or pharmacies, for example, that provide health care on Sundays. Levelling the playing field will help thousands of small businesses open their doors, serve customers and create jobs on Sundays. Labor wants small business, as we know, to pay higher taxes and higher electricity bills, and now they're also trying to ensure that they pay higher penalty rates. Only the coalition can be relied upon to consistently stand up for small business, because we know how important they are to a strong economy and more jobs.
There are so many more examples of the hypocrisy. Another which I think is worth mentioning and putting on the record is, of course, that this decision by the Fair Work Commission to cut penalty rates is not the first decision of the Fair Work Commission to cut penalty rates. In fact, the previous decision of the Fair Work Commission to cut penalty rates occurred under the previous government. That is right—it was under the previous Labor government of which Senator Cameron was a part. Yet, when in 2010 penalty rates were cut in some awards, including for some hotel, cafe and restaurant workers, under Labor's award modernisation process, not only did those opposite not do anything about it and not only did they not seek to pass an amendment or a bill like the one before us today but they didn't even speak up about it or complain about it. This is supposedly a new outrage they have suddenly discovered, but when it happened on their watch it wasn't one to be worried about.
I think it is important to just finally put on the table a few facts on this issue of penalty rates. The Fair Work Commission is independent. It is not a body that was established by this government. It was established under legislation passed not by this government but by the previous government. It was set up to be independent for a reason, and its independent decision in this case does not actually affect all workers; it affects approximately three to four per cent of Australia's workforce. Penalty rates for Sundays are being modified in four awards only and for public holidays in five awards out of 122. It does not affect people on enterprise agreements, as I have mentioned. The Fair Work Commission specifically ruled out modifying penalty rates in other industries, and so the claim that has sometimes been made in this debate, for example, that nurses may be affected is a blatant lie. Workers on awards in retail and hospitality will still get Sunday penalty rates; they are just now more in line with Saturday rates. So, for example, instead of getting double time on Sundays, casuals on a retail award eventually, after this has transitioned through, will get time and three-quarters and permanent staff will get time and a half. It is interesting, as a side point, to hear those opposite defending the sanctity of a Sunday compared to a Saturday when that is based on a principle that Sunday is a day for worship. In a modern secular country with people from diverse faiths and no faiths at all, is it really appropriate for the law to privilege the religious faith and observance of some on a Sunday when many people do not share those religious views and faiths?
As I mentioned, there will be transition arrangements. They will be phased in over a number of years, including over three annual instalments from 1 July 2017 for workers on the fast-food and hospitality awards and casual workers under the retail award and over four annual instalments for workers under the pharmacy award and full-time and part-time workers under the retail award.
I want to turn back now to the actual bill which is before us, which I was referring to at the beginning of my contribution. I think it's important that we get to some of the motivations of the government and what it has sought to put into effect by legislating this bill. It's a very sensible measure to fix very clear issues in the operation of the Fair Work Act 2009. It repeals the requirement for four-yearly reviews of modern awards from 1 January 2018. It enables the Fair Work Commission to overlook minor procedural or technical errors when approving an enterprise agreement. We have all heard ludicrous stories about how pages were not stapled together and other minor technical issues and typos that caused an EBA to be struck down. That is now going to be addressed. That is something that you would think that every member and senator would agree should be addressed expeditiously. It will apply the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act in relation to FWC members.
As I said earlier, it is unfortunate this has become politicised in the way it has. The first amendment that the bill seeks to achieve is repealing the current requirement for the four-yearly review of modern awards by the Fair Work Commission. The regulatory burden of the current review has already been enormous. The current review began in January 2014 and is still going, more than three years later. The Productivity Commission has found the current system is hugely resource-intensive for all involved. It is resource-intensive for the Fair Work Commission, unions and employers, and I think the resources in all three cases could be better spent elsewhere. The government is pleased to be removing these costs for these groups and to be streamlining the operation of the Fair Work Act. As I said earlier in my speech, having the ACCI, the AiG and the ACTU on the same page is not a common occurrence and yet that is what we have seen in this debate and that is what the government is trying to give effect to.
To ensure that there's an appropriate transition period, the bill will allow the current four-yearly review to conclude under the existing framework. Importantly, it will remove the requirement for the new review which is set to commence next year. That is something that all stakeholders have broadly supported. As I mentioned, it's really important that in the future the commission will be able to overlook minor errors. It is a commonsense change to the Fair Work Act. It will mean that the Fair Work Commission can still approve enterprise agreements if a minor procedural or technical error has been made.
This has been a significant issue in relation to the Notice of Employee Representational Rights, the statutory notice required to be provided by an employer to employees at the commencement of bargaining. For example, agreements have been knocked back, as I mentioned earlier, by the commission because an employer has stapled the Notice of Employee Representational Rights to other documents. It is ridiculous that this should mean the bargaining process must start again. Similarly, a typo in the notice should not be grounds for the agreement failing to be approved. This makes bargaining more expensive and protracted than it reasonably needs to be, denying pay rises to employees and denying productivity gains for Australian businesses and the economy. In some circumstances it means that bargaining must begin again from an early stage, and that is clearly ludicrous.
The Productivity Commission recommended that the Fair Work Commission be given the ability to overlook these errors as long as employees are not likely to have been disadvantaged. The government agrees with this commonsense recommendation. The government is committed to providing Australia with a balanced framework for enterprise bargaining and these sensible targeted amendments will move us closer to that goal. There have been some inaccurate criticisms of the bill, that it somehow removes safeguards or equates them with technicalities. To be clear, the bill does not undermine the existing safeguards in the Fair Work Act that are designed to protect workers or equate these safeguards with mere technicalities. These safeguards remain and the government expects they will continue to be strongly enforced.
Finally, I mention the introduction of a complaints-handling regime for commission members. This is the implementation of a sensible reform suggested by former Federal Court judge the Hon. Peter Heerey AM, QC in his report of the inquiry into matters concerning former vice-president Michael Lawler of the Fair Work Commission. The report found that there is currently no formal mechanism to inform the parliament's consideration of allegations of misbehaviour or incapacity against Fair Work Commission members. Like Commonwealth judges, the tenure of FWC members can only be ended, because of proved misbehaviour or incapacity, by the Governor-General at the request of both houses of parliament. However, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 presently only operates in relation to Commonwealth judicial officers, so there is no formal mechanism to inform the parliament's consideration of allegations of misbehaviour or incapacity against Fair Work Commission members. The judicial misbehaviour and incapacity act enables the parliamentary commission of inquiry to investigate allegations of misbehaviour or incapacity with powers to hold hearings, take evidence on oath and require the production of documents, and obligations to observe natural justice requirements. I hope their powers never need to be used but it is certainly comforting to know they will be there should the passage of this bill be secured.
Senator WATT (Queensland) (21:02): I rise to make a contribution on the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill and, as with my earlier contribution today on the protecting vulnerable workers bill, there are some aspects of this bill that we do welcome but of course there are many that we feel are deficient. We are very keen to move some amendments in relation to penalty rates, which I'll come to a little later. Firstly, to satisfy Senator Paterson, I want to make sure I begin by talking about what is in the bill as opposed to only what is not in the bill.
The general proposition in this bill is to abolish the four-yearly review of awards that currently occurs, and Senator Paterson is correct in saying that this was agreed to by employers and unions and it is a partial response to recommendation 8.1 of the Productivity Commission's report into workplace relations. The bill also contains provisions which will allow the Fair Work Commission to overlook minor technical or procedural errors when approving an enterprise agreement where those errors were not likely to have disadvantaged employees. This is also done in response to a recommendation of that same Productivity Commission report, in this case recommendation 20.1.
The Productivity Commission report that I'm referring to was handed to the then Abbott Liberal government on 30 November 2015 and was publicly released on 21 December 2015, just before the Christmas break. In what has become quite standard practice for this government, a year and a half later there has been no government response to the Productivity Commission report. We see this pattern over and over again, not just in this portfolio but across the board. Reports are handed down to the government, they languish on someone's desk or in someone's bottom drawer for a very long period of time, and eventually the government gets around to responding to them or responding to part of them, or picking up some aspects of a report and not others. This is another example of that practice that we see here.
So, we are still in the dark and the Australian public is still in the dark about which Productivity Commission recommendations the government does or does not support. And we will remain in the dark until we get government responses to individual recommendations, which are most commonly drip fed to the public via bills such as this one. Unfortunately, even though the original proposition of removing four-yearly reviews was put to the government in a joint approach by employers and unions, it appears that this bill differs from what was put to the minister in that joint approach from employer associations and the ACTU. That is of concern to us and it's a little bit unfortunate that we see some government senators misrepresenting what was put to government by employer associations and unions. There clearly has been some change in what is now being put forward by the government compared with what was originally sought in that joint approach.
The opposition has been concerned to ensure that removing the four-yearly review in the manner proposed in this bill does not have unintended consequences. It's very important that modern awards continue to be reviewed to ensure that they meet the modern award objective and that this is able to be done through a process whereby workers and employers have equal access and equal standing. That's why, if you look at the Senate committee report which examined this bill, opposition senators called for amendments to the bill in that report. And that's why the opposition supported those amendments in the House when the House considered this bill.
The bill also gives the Fair Work Commission the power to approve an enterprise agreement which would have been genuinely agreed to but for minor technical or procedural problems if the employees covered by the agreement were not likely to have been disadvantaged by the errors. We've all become used to the government and the Productivity Commission citing an example in which an enterprise agreement might be rejected because the employer stapled additional pages to the 'notice of employee representational rights' form. We were pleased to see that this bill was amended in the House to address a number of drafting concerns that the opposition raised.
Finally, the bill also applies complaint-handling powers of the minister and the president of the Fair Work Commission to Fair Work Commission members who previously held office in the Australian Industrial Relations Commission. The bill also applies the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 in relation to Fair Work Commission members. As Senator Paterson has acknowledged, this responds to the recommendations of the report from Justice Heerey. That report was commissioned by the government in the wake of the saga concerning former commissioner Michael Lawler.
So, there are some aspects of the bill that we support, and we are pleased that some of the amendments the opposition put forward were adopted in the House. But in the remainder of my contribution I want to talk about one of the things that is not in this bill, and that is any protection for Australians who either have lost penalty rates or stand to lose their penalty rates as a result of the Fair Work Commission's decision earlier this year. People will remember the decision of the commission to reduce penalty rates to workers in the retail and hospitality sectors for Sundays and public holidays. That is already having a devastating impact on those workers' pay packets, on the incomes of the families those workers belong to and on the very businesses that are in the process of cutting those workers' wages.
While there has already been some impact on workers who have lost their penalty rates, we can only imagine the even greater impact that cut will have on more and more workers who face these cuts in the future. We know that these cuts amount to up to $77 a week when fully implemented. It is not as if the people getting these penalty rates are high-income earners. They are not the kinds of people who will be benefiting from the government's cut to tax rates for millionaires. They are not the people who were paying the deficit levy because they were earning so much money that they could afford to chip in a little bit more. No. These are low-paid workers in retail and hospitality who depend very much on the penalty rates they receive to be able to pay their basic bills—to be able to pay their rent, their electricity, their gas and their mortgage payments. These are not wealthy people that we are talking about, yet this government has been very happy to support a pay cut for those people.
It is not really that surprising that the government has taken that position. Under this government, we know that wages across the economy are stagnant. They are growing at a lower rate than under any other government we have seen in Australian history. Ever since wages growth records were first prepared, wages have always increased at a higher rate than they are doing under the current government. But this government—in pursuit of its ideological agenda to support big business, to lift corporate profits, to lift income for the top end of town and to drive down the wages of average working people—has been happy to stand by and let those wages go down and has been happy to stand by and let these cuts to penalty rates go through.
I mentioned earlier today in my contribution on another bill that the government's own employment practices are contributing to this stagnation in wages. The government is proving incredibly unwilling to come to enterprise bargaining agreements and negotiated outcomes in terms of wage rises for their own employees. I have lost count of the number of different agencies where enterprise bargaining negotiations with this government have stalled after years of negotiation. In agency after agency, overseen by the Turnbull government, we have got workers— again, not highly paid people—whether they be in admin roles, clerical roles, professional roles or policy roles, not getting any pay rise at all, year upon year, because this government is not prepared to come to an agreement to give them a pay rise simply in line with inflation. This government continues to insist on pay rises below inflation. As a result we're seeing wages across the public sector decrease, and that is contributing to an overall decrease in wage growth across the entire economy.
In terms of penalty rates, I'm very pleased to report that, in a number of the duty electorates I represent in Queensland, we are finding examples of employers who are prepared to go against the tide, who are prepared to continue paying their employees the wages they deserve and the penalty rates they deserve. In the electorate of Capricornia in Central Queensland, over the last few weeks, I have met with the owners and workers at a number of businesses where the employer has decided to continue to pay their penalty rates. Only last week I was in Rockhampton and I was very pleased to have a steak sandwich—I think it was; I can't remember now—at the Giddy Goat, an establishment I often frequent in Rockhampton and that I'll be frequenting more.
Senator Smith: It might have been goat that you had.
Senator WATT: No, it definitely wasn't goat; it was steak. In Rockhampton, the beef capital of Queensland, you wouldn't eat anything other than steak. The Giddy Goat does serve a very good steak sandwich, but it also does the right thing by its employees who cook the steak sandwich for you and who bring it to you, and that's why I and many other people will be supporting them with our custom. When you are in Rockhampton, I recommend getting your coffee from Patti Mules's Fast Lane Drive-Thru Coffee, which the shadow minister, Brendan O'Connor, and I visited some weeks ago to congratulate Patti on her decision to continue to pay penalty rates to her workers who make coffee on weekends and on public holidays. You could feel from going into both of those establishments the high morale, the camaraderie and the shared objective between the employer and the employees, because they were being treated fairly. They felt they were all on the same playing field and everyone could contribute to making sure that there was good customer service. People wanted to turn up to work. So there are great examples of businesses in Central Queensland which are still doing the right thing by their employees and continuing to pay penalty rates, despite the fact that this government is effectively urging them to go forward and cut their workers' wages.
I have mentioned on numerous occasions that the problem of insecure work and stagnant wages is crippling Central Queensland. We know that they have been going through very tough times since the end of the mining boom. Not only are people struggling to hang on to the work they have got; but they're struggling even more to get secure work, permanent full-time work, rather than having to take up options of labour hire and casual employment. So the very last thing that the Central Queensland economy needs is people's wages being cut in the form of cuts to penalty rates.
The other main part of Queensland that I have the honour of representing is the Logan-Gold Coast corridor. Statistics from the Australian Bureau of Statistics make very clear that, if you're looking all around Australia to see what impact this cut to penalty rates will have on different locations, it is no exaggeration to say that the Gold Coast will be the epicentre of the cuts to penalty rates. When you think about that, it's actually not surprising, because so much of the old Gold Coast economy is based on tourism, retail and hospitality. That's why most people in this chamber and most people in this country go to the Gold Coast. Sure, it's a holiday location. It's a fantastic holiday location. But the reason that everyone has a great holiday when they go to the Gold Coast is that they're waited upon and served by hardworking people, who depend upon their penalty rates to be able to afford their family bills.
The Bureau of Statistics figures show that there are nearly 60,000 workers across the Gold Coast who potentially stand to lose their penalty rates because they work in these industries where penalty rates are going to be cut. In fact, if you look at it in terms of federal electorates, of the top 10 federal electorates across Australia with the most people who stand to lose their penalty rates, three of them are on the Gold Coast. Three of the top 10 federal electorates in Australia with the most people who stand to lose from the penalty rate cuts are on the Gold Coast, and it's headed by the minister for tourism, Steven Ciobo, the member for Moncrieff. That is the electorate across the entire country with the most people employed in retail and hospitality and, therefore, that is the electorate in Australia where most people stand to lose pay out of their own pay packet because of these penalty rate cuts. It's closely followed by the electorate of McPherson on the southern end of the Gold Coast, held by Karen Andrews. That's the fourth most affected electorate in the country. The sixth most affected is the electorate of Fadden, held by Mr Stuart Robert. So three of the top 10 electorates across the whole country where people will suffer most from these penalty rate cuts are on the Gold Coast.
One thing that is common across these electorates on the Gold Coast and the electorate of Capricornia, which I have already talked about, is that they are all represented by members of the LNP, all of whom have not said one thing to stand up for those workers who are going to lose their penalty rates. Instead, each of those members of parliament is cheering on the penalty rate cuts under this ridiculous economic theory that it's going to lead to more people being employed. We know the real reason why these members of parliament from the LNP have been happy to stand by and encourage bosses to cut the penalty rates of their workers, and that is that these members of parliament don't actually care about the working people on the Gold Coast or in Capricornia. All they care about is lining the pockets of the people they represent, particularly big business.
The other thing I'd like to mention in terms of penalty rate cuts is that it is another example of how this government completely has it in for young people. It doesn't matter what kind of young people we're talking about. If you're a young working person, particularly in retail and hospitality, where a lot of young people work, you're going to get your penalty rates cut under this government. If you're unemployed, they're coming after your Newstart, your dole. They want to make you go through random drug testing. They're putting forward dodgy internships under the PaTH program, where people are already coming forward and showing that they are being required to work many, many hours over the number that they're paid for, to get nothing in return. Only last week there was another example that came out of someone doing one of these PaTH internships sponsored by the Turnbull government, and rather than actually getting pay for the hours above 40 hours that they're working, they're getting gift cards. That is the kind of exploitation that we're seeing under a program put forward by this government.
Young working people are losing their penalty rates. Young unemployed people are losing their dole, getting drug tested and getting pushed onto dodgy internship programs. If you're in training you're suffering from apprenticeship cuts and cuts to funding to TAFE. Of course, if you're a university student, you're about to suffer, if the government gets its way, from the cuts to university funding and increases to university fees. Penalty rates are just one more example of how this government is doing everything it can to hurt the future of young people and make their lives harder. It's got to stop. That's why we are putting forward these amendments to this bill to try to restore the penalty rates which have been taken away and to make sure that young working people or older people who are receiving penalty rates get the wages they're entitled to.
The only other thing I want to say in terms of penalty rates is to respond to the argument that is sometimes put by the government that cutting penalty rates will be good for the economy. Nothing could be further from the truth. What businesses need to be sustainable and profitable, and to have a long-term future and employ more people, is a secure customer base that has money in their pockets and can come in and buy a cup of coffee and something from the shop. The surest way to make sure that people have the money to go and spend in shops, cafes and businesses across the country is to make sure that people's wages are increasing at a reasonable rate. This government is doing the opposite. It is taking money out of people's pockets by reducing their wages. They're doing it to their own workers in the public sector by refusing to enter into fair wage deals and driving down wages. They're doing it by supporting cuts to penalty rates for people in the private sector. All these things put together are having a devastating impact on our economy. They are taking money out of people's pockets, meaning they have less money to spend in the economy. That is going to be bad for business. It is going to mean fewer jobs—whether we're talking about the Gold Coast, Capricornia or anywhere else—and that's why I support these amendments to restore penalty rates.
Senator BURSTON (New South Wales) (21:22): I'm not sure whether I'm debating the right bill or not; I'm a bit confused after Senator Watt's ramblings about penalty rates. I'm not sure it even relates to this Fair Work Amendment (Repeal of 4 Yearly Reviews and other Measures) Bill.
Senator Watt: You've already voted against labour hire people. What are you going to do now?
Senator BURSTON: Go back to law. That's where you belong.
The ACTING DEPUTY PRESIDENT ( Senator Sterle ): Order!
Senator BURSTON: I rise to speak in support of this bill. There are a lot of people who at one time or another have chucked a sickie. Sometimes there's a personal matter that needs to be dealt with, and it's easier to simply call in to work pretending to be sick in order to get time to deal with it. Mostly this sort of behaviour gets tolerated. If you only do it occasionally, no-one will begrudge you the odd sickie, but there's a point where it becomes unreasonable.
In 2005 and 2016 I saw a gold medal performance with sickie chucking. Most people would lose their jobs if they didn't show up for a week, let alone a month. Mr Michael Lawler, then the vice-president of the Fair Work Commission, took things to a whole new level. He managed to go for nearly a year, drawing a $435,000 salary without doing a day's work. For $435,000, the average person might find time to come to work occasionally—perhaps to answer an email or two at least. But Mr Lawler was too sick—he assured us! He didn't go to work so he could deal with all the difficult legal issues that his partner, Kathy Jackson, was involved in. He stayed at home to deal with them. The Federal Court ultimately ordered her to repay $1.4 million in union funds, some of which went into Mr Lawler himself. No wonder he felt sick. He also made illegal recordings and failed to disclose conflicts of interest. Mr Lawler was able to get away with his flagrantly corrupt behaviour because there was, astoundingly, no legal way to fire him. As a statutory officer earning a very high wage and being responsible for very important decisions, he was subject to far less scrutiny or accountability than the average fast-food worker.
This bill will prevent incidents like this happening again and for that reason I am eager to support it. But this is too little, too late. Attempts to call Mr Lawler himself to account have ultimately been unsuccessful. The parliament appointed a former judge to investigate him, and Mr Lawler resigned to avoid responding to that investigation. Today, even after his behaviour and corruption have been exposed, he faces no legal consequences. He's not been fined or punished; he's not even been required to give an explanation of his behaviour. The Australian people are sick and tired of this sort of blatant corruption. They are fed up with people in the upper echelons of our society taking them for a ride again and again. Normal people work hard for their money. It's offensive and disgusting to see individuals getting rich at the expense of others.
Mr Lawler is one case but there are plenty of others. This kind of naked and corrupt self-interest is apparent everywhere amongst people who think themselves important, entitled and untouchable. We see it in the unions that take bribes to trade away their members' wages, and we see it in the banks where directors award themselves massive fees and bonuses while facilitating criminal money laundering and foreclosing on customers who have never missed a payment. We see it in the public sector with multimillionaire posties, and with politicians taking joyrides in helicopters. One Nation will not stand for it. We owe nothing to big business, big unions or big parties. The only favours we have to repay are to the people who elected us, and to them I say we will not rest until we have cleaned out all of this corrupt dead wood. We will not be happy until those at the top in our society do an honest day's work for an honest day's pay, just like everyone else.
The Labor Party will put amendments before the Senate to this Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill, and, despite the fact that this bill has nothing to do with penalty rates, I don't think they should be supported either. The opposition bizarrely tried to amend this bill in the House of Representatives yesterday to undermine the independence of the Fair Work Commission on penalty rates. This was a stunt from a populist who has shown time and time again he will always obey union bosses but never listen to small business. It was a stunt from someone with a short memory. It was Mr Shorten who set the rules for the Fair Work Commission inquiry. He appointed the umpire and said he would respect the decision.
When Mr Shorten was a union leader he was happy to cut penalty rates. When he was workplace relations minister he was happy for big unions to do deals with big businesses to reduce Sunday rates. And now the Greens are trying that stunt in this place. Labor opposes tax relief for small business. Labor puts Greens ideology before affordable and reliable electricity for small businesses. Labor opposes reforms to protect small businesses from CFMEU thuggery on work sites. More recently the CFMEU in Newcastle ran attack ads attacking me for my support of the ABCC bill, running full-page advertisements in the Newcastle Herald over a week. There were prime-time television advertisements attacking me, and radio ads as well. That would have cost that union at least, in my estimation, $100,000—another waste of members' money. It's about time the CFMEU realised that bullying does not work, especially on me.
Senator HUME (Victoria) (21:28): I rise this evening to discuss this urgent and vital measure that will alleviate the growing regulatory burden on employers and employees across Australia. The government is proud to introduce the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill to ensure that the Fair Work Act continues to operate effectively and prudently while also ensuring that the Fair Work Commission retains its independence. This bill contains three key measures. The first is to repeal the requirement for the four-yearly review of the modern awards. The second is to enable the Fair Work Commission to overlook minor procedural or technical errors when approving enterprise agreements. The third is to apply the judicial misbehaviour and incapacity act to Fair Work Commission commissioners in order to improve public confidence in the Fair Work Commission and ensure the highest standards of behaviour from this very important role. There is absolutely nothing controversial about this bill. The bill seeks to take the politics out of the Fair Work Act. It will in fact ensure that, whether you are an employee or an employer, the application of the legislation will allow for timely resolution. Unfortunately, those opposite in the Labor Party, and their wayward allies in the Greens, for reasons of posturing and theatre alone have decided to oppose these measures and to introduce their own amendments.
But let me first speak to the strengths of this bill. The centrepiece of this legislation is the repeal of the four-yearly reviews of modern awards. These reviews represent an immense regulatory burden that needs to be removed to allow the Fair Work Act to provide steadfast rulings and decisions. The current review began in January 2014, and it is still going. In its review of workplace relations, the Productivity Commission has found that the current framework is one that is 'hugely resource-intensive for all involved'. The government, I can assure you, is committed to removing these burdensome costs in a timely manner for employers, for unions and the Fair Work Commission. By seeking to streamline the current operation of the Fair Work Act, employment disputes and agreements will be able to be resolved in a far more timely manner. This repeal has wide-ranging support from the Australian public. Indeed, it is a rarity to have the Australian Chamber of Commerce and Industry, the Australian Industry Group and the Australian Council of Trade Unions in lock-step in consensus on a legislative change. It is a truly revolutionary moment when the partisan lines of industrial relations are set aside to allow Australians, employee or employer, to benefit from a robust piece of legislation that delivers fair and just enterprise agreements for all. This bill has done exactly that.
In November of last year, these groups co-authored a letter to the Minister for Employment, Senator Cash, indicating—in fact, pleading—that the four-year review requirement be removed from the Fair Work Act. Surely this act of unity demonstrates that this bill is a measure designed specifically to improve workplace agreements for all Australians. By lifting such a time-consuming and resource-intensive constraint from the Fair Work Commission's operations, the government is ensuring that the Fair Work Act can operate in a comprehensive and timely manner.
Furthermore, the bill will adequately provide an appropriate transition period. The current review that has been ongoing since 2014 under this bill will be concluded under the existing framework, but, importantly, after this mandatory review has been concluded the bill will remove the requirement for the new review to commence in 2018. This is a position that is broadly supported by the Fair Work Commission, by businesses and also by the trade unions. This amendment is both thorough and considered. I remind the chamber that the Fair Work Act's stated objective is that the award system be simple, easy to understand, stable and sustainable. Repealing the requirement for four-yearly reviews of modern awards will go some way to meeting that objective.
The second measure of the bill is what is technically known as a no-brainer. The fact that, currently, entire enterprise agreements can be thrown out over a simple mistake, such as a typo or a spelling mistake, illustrates the level of unneeded regulation and ridiculous red tape that is weighing down the bargaining process. We in the government are committed to providing Australia with a balanced framework for enterprise bargaining. By targeting these absurd barriers in the current legislation, these amendments will guarantee that the framework can operate with ease. Let me give you an example of the absurdity of the current regime. The current legislation states that if an employer were to staple a notice of employee representative rights to any other documents, the commission, within its current framework, is allowed to reject the entire application and force the employer to start all over again because the staple is in the wrong place. Heaven forbid that there is a typo in any of these forms, for, yes, a typo in the current framework also constitutes a procedural error that warrants rejection from the commission.
As it stands, the current legislation makes enterprise bargaining more expensive, the process protracted and entirely unproductive. This is not only a cost to the employer but it is an immense cost to employees and to the Australian economy. If you want to promote a sluggish and low-growth economy, as those opposite seem to want, then by all means let us sit belligerently on our hands and maintain the status quo of the current legislation. But, while I can see the flimsy trade unionist rationale from the Labor Party, who oppose those reforms, we on this side of the chamber will not sit idly by as the economy is held back by cumbersome barriers such as this one.
Those opposite will say that we are removing the safeguards in the current legislation. I can assure you that we are most certainly not. How can this bureaucratic process be a safeguard if it promotes more paperwork, more red tape and, ultimately, more confusion for businesses and employees alike? Yet this is what we are hearing from those opposite. We are committed in this government to a common-sense approach to the agreement-making process. This amendment will allow employees who are satisfied with agreements from their employers, even those with a minor spelling or procedural error, to be approved by the Fair Work Commission provided that these small technicalities do not disadvantage the employee. This is a flexible and a fair measure, and it's designed to allow the legislative framework to continue to operate in the rare event that employers commit a minute procedural error.
To allow for these reforms to operate fairly, the government is seeking to implement the sensible reform of applying the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 to members of the Fair Work Commission. It is only fair that those administering the rulings of the bargaining agreements are kept to the highest standards of impartiality and good conduct. The government is adopting this reform as suggested by former federal judge the Honourable Peter Heerey AM QC, who has delivered a report concerning former vice president of the Fair Work Commission Michael Lawler. As spoken about by Senator Burston so eloquently, as indicated in the report, there is no formal mechanism currently that informs the parliament of allegations of misbehaviour against the Fair Work Commission members. Without any formal checks or balances, the Fair Work Commission's position as an independent body is severely compromised. How is this possibly fair?
By not reforming the current legislation, we enable bad behaviour. We become enablers of bad behaviour. We allow individuals to abuse their positions and allow the vital process of enterprise bargaining to become a protracted and costly affair. Mr Heerey's recommendation ensures that the parliament, upon the discovery of allegations of misbehaviour against the Fair Work Commission members, will be able to quickly establish an inquiry into those allegations. This particular reform guarantees that due process and accountability are restored to the Fair Work Commission, and these actions will strengthen the commission. Furthermore, it will improve public confidence in the Fair Work Commission.
This issue has drawn significant commentary from our friends in the fourth estate. The measures we're introducing are designed to improve workplace relations for all Australians. The aggressive behaviour of the militant trade unions over the past year has drawn ire from our side of politics and from the press, but, most importantly, from the Australian people. There is no appropriate time for bullying and harassment in any workplace. The lawlessness displayed by the CFMEU and by John Setka demonstrates that Labor will continuously support malpractice and criminal conduct in the workplace. But the government will not be deterred from ensuring that public confidence in the workplace agreement process is not sidelined by the actions of a few violent thugs. The integrity of our workplaces for both the employee and the employer requires that the legislation can be relied upon to effectively rule on agreements when such issues arise.
It is bizarre—it's extremely bizarre—that those opposite in the Labor Party and in the Greens wish to link these measures to penalty rates. I found Senator Watt's 20 minutes of talking about penalty rates to be nothing short of extraordinary. This bill has absolutely nothing to do with penalty rates—nothing to do with penalty rates at all. To assume otherwise or pretend otherwise is nothing more than political opportunism.
This bill is purely about reforming the procedural and accountability measures of the Fair Work Act and of the Fair Work Commission. The actions of the ALP and the Greens witnessed in the House of Representatives, where they sought to insert their own amendments into this act with the explicit purpose of compromising the commission's independence when ruling on penalty rates, demonstrate the divisive politics that those opposite seek to extract from this very important bill. If the Labor Party and the Greens want to ensure that all employees get a fair go then, surely, their support of this bill could be taken as a given. But if we want to talk about undermining Australian employment prospects, if we want to talk about limiting access to new employment opportunities, limiting access to jobs, well, then, let us look no further than the Australian Labor Party. Let us turn to their political agenda that has been promoted under the shroud, this guise, of fairness and equality that is nothing more than a covert cover for a redistributionist agenda.
The irony, of course, is that the Leader of the Opposition, Mr Shorten, established the Fair Work Commission in 2009 as an independent body. This decision by Mr Shorten in 2009 was his most noble and conciliatory action to date. It was the Labor government in 2009 who appointed all of the fair work commissioners who ruled on penalty rates, and it saddens me to think that Mr Shorten, who was once committed to giving Australians a fair go, has come to this. Mr Shorten used to support measures designed to grow the pie of the Australian economy, but surely this is not the case anymore. Mr Shorten is now firmly in lock step with militant trade unions and their desire to engage in futile and divisive class warfare. Mr Shorten, who was once the champion of lower penalty rates and flexible workplace agreements, has now committed to doing little more than punishing small businesses. Mr Shorten was once a supporter of lower company tax rates. He's on the record as saying so. These lower company tax rates are so vital for the millions of businesses in Australia to grow, but now he has committed the Labor Party to one of the most redistributionist agendas that we have seen since Arthur Calwell. Gone are those days of the economic rationalists of the Hawke and Keating Labor governments. This is not a progressive Labor Party. This is an economic nationalist and reactionary Labor Party that most Australians had thought to be consigned to the pages of history. Well, it has been resurrected again by Mr Shorten.
The best way to protect and grow Australian jobs is not to adopt the politics of fear and division but to take a sensible, policy-minded approach which is grounded in economics and not the politics of populism. This bill is thoroughly grounded in independent policy analysis. It has been designed to cut through the day-to-day politics and the regulatory burdens to allow employees, employers and the Australian economy to go forward on a more stable footing.
It is imperative that the Senate pass this legislation, that all of us in this chamber come together to support this bill and discard the hollow rhetoric of fairness and inequality for the sake of efficiency and productivity. We must all be committed to providing Australians with an enhanced framework of workplace law. The government have introduced these measures to do exactly that. We, the Turnbull government, are committed to delivering a prudent workplace framework, we are committed to delivering an efficient workplace system and we are committed to guaranteeing that all Australians are given a fair go. I thank the chamber for its time.
Senator KETTER (Queensland) (21:46): I rise to spoke on the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017, subject, of course, to Labor's proposed amendment in relation to the protection of penalty rates. I note the bill and other measures have the broad support of the Labor Party, unions and, most notably, also employer groups. In the consultation processes associated with the Productivity Commission's review of the workplace relations framework, a clear position was stated by employer associations and the union movement together that four-yearly reviews of modern awards ought not to continue to be a feature of that framework. The cycle of almost continuous reviews sits uncomfortably with the stated objective of the Fair Work Act of a modern award system that is simple, easy to understand, stable and sustainable. In addition, the Ai Group, the Australian Chamber of Commerce and Industry and the ACTU have all unanimously agreed that the resource demands on the commission and the industrial parties have been substantial. I think I am safe to assume that we are talking millions and millions of dollars of resources of unions, employer organisations and the Fair Work Commission that have been taken up in these reviews of the modern award system.
Importantly, in speaking to this bill I think it's relevant to highlight the history surrounding the Australian industrial relations system and the ongoing public service provided by the trade union movement in seeking to uphold the wages and working conditions of Australian workers. I look forward to this opportunity to set out in some detail the work that, in particular, the union that I have been associated with, the SDA, has done in recent times in trying to ensure that the awards that apply to retail workers are robust and immune to attacks by employer organisations. Since the creation of penalty rates, we have seen attacks on these conditions and on workers and their unions expand and grow with the changing tides of the regulatory environment. We now need stability in the system.
I think it is important to reflect at the moment. Let's just look at the retail industry, which has been the focus of the Fair Work Commission's decision in respect of penalty rates. We are looking here at probably something in the order of 1.3 million retail workers throughout Australia. A very substantial proportion of those workers would be subject to the awards of the Fair Work Commission. We know that the SDA, the union that I have previously been associated with, has something like 200,000 members. The work of the SDA in protecting award conditions and mounting arguments in the Fair Work Commission to protect the award—
Debate interrupted.
ADJOURNMENT
The DEPUTY PRESIDENT (21:50): I propose the question:
That the Senate do now adjourn.
Tasmanian Headstone Project
Senator ABETZ (Tasmania) (21:50): The Tasmanian Headstone Project is one of those genuinely motivated, community initiated organisations for which my home state of Tasmania is well-known. Established by Mrs Andrea Gerrard and a determined committee, it has made a difference within our community for lots of families and in particular for the memory of the many who served our country in World War I and came home only to be left forgotten in unmarked graves. Thanks to the Tasmanian Headstone Project they are no longer forgotten. Their service to our nation is now recognised and their resting places appropriately marked.
The Tasmanian Headstone Project grew from the Families and Friends of the First AIF Inc., which discovered several years ago that there were many World War I veterans lying in unmarked graves at Cornelian Bay Cemetery in Hobart as well as in many other cemeteries around Tasmania. It is estimated that there are between 500 and 600 men who returned—from the 13,000 Tasmanians that embarked to assist the efforts in World War I—who lie in unmarked graves within Tasmania. As of today, about 300 gravesites have been marked with an appropriate headstone and plaque. All this has required painstaking research by Mrs Gerrard and her committee.
The research, identifying and locating of particular gravesites is one thing. The next part is to provide the appropriate headstone. This has been achieved by the generosity of many within the community, including businesses that have shown exemplary corporate citizenry. The organisations that have been instrumental in allowing these markers to double as markers of respect and gratitude, facilitated by the Families and Friends of the First AIF, are the RSL's Greater Hobart Sub Branch; Clennett's Mitre 10; Cement Australia; Sika Australia; Ricoh Business Centre; the Tasmanian government; the RSL's Dunalley Sub Branch; the Hobart City, Glenorchy City, Clarence City and Kingborough councils. As well, there have been donations from families and friends. Millingtons' cemeteries have waived their fees and provided the committee with maps, as well as helping with the plaques.
As a number of gravestones are completed, there is an appropriate unveiling ceremony which is so ably and movingly supported by the Australian Army Band Tasmania and the 12th/40th Battalion, Royal Tasmania Regiment, and its association of past members. Community involvement goes even further, with students from various schools in the Greater Hobart area, such as Rose Bay High School, Claremont College, St Virgil's College, involved in the conduct of the services and the research of each individual soldier whose name has been commemorated. Another aspect of the project has been the very successful involvement of two Work for the Dole projects. They have been of enormous benefit to the project.
Different dignitaries have presided over particular ceremonies, including the Chief of Army, Lieutenant General Angus Campbell AO DSC and the Director of the Australian War Memorial, the Hon. Dr Brendan Nelson AO. The Office of Australian War Graves assists the project by providing permission for the project to use the relevant service emblem to mark the grave of individual servicemen.
I would encourage others to harness their volunteer sector to engage in a similar program in their various states and territories. It is a matter of regret that, as a community, we have neglected the thousands of Australians who went off to defend our freedoms and who now lie in unmarked graves. As the chair of the Tasmanian Headstone Project has said: 'On Anzac Day and Remembrance Day, as we say, "lest we forget" those words really mean not to forget these men. This is the thing about the project for me: that we are not forgetting these men and we are remembering them every day.' These poignant words from Mrs Gerrard provide an insight into the motivation for this wonderful project, which has meant so much to the community at large and to individual families. I salute Ms Gerrard and her committee, who have ensured the Tasmanian Headstone Project has made such significant progress. I wish them ongoing success and assure them of my ongoing personal support. I wish them well, salute their endeavours and thank them for their service to our community. We are all enriched by this display of dedication and expression of thankfulness to those who are willing to defend our freedoms—freedoms that we still enjoy today. The least we can do is to say thank you with this mark of respect.
International Childhood Cancer Awareness Month
Senator BILYK (Tasmania) (21:56): September is International Childhood Cancer Awareness Month and it is a time when cancer organisations around the world put the spotlight on children's cancer and the need to improve diagnosis, treatment and outcomes. We need to do more to drastically improve childhood cancer survival rates in Australia and across the world. In Australia, over 700 children aged nought to 14 are diagnosed with cancer every year, and about 100 will die from the disease. Of those children, 35 or so each year are children who suffered from brain cancer.
The awareness month is the idea of Childhood Cancer International, CCI, which was founded in 1994 as an umbrella organisation of childhood cancer grassroots and national parent organisations. CCI is a global, parent driven non-profit organisation that represents 181 parent organisations, childhood cancer survivor associations, childhood cancer support groups and cancer societies in 90 countries across five continents. In September every year, CCI members and childhood cancer champions, advocates and supporters encourage iconic buildings, historic landmarks, monuments, bridges and natural environment to go gold by lighting up in gold or by hanging huge gold ribbons. So it was good to see, late last week, the photo of the Sydney Harbour Bridge lit up in gold in support of this cause. Other buildings in Melbourne, Fremantle and other locations around Australia are also going gold during September for this great cause.
Individuals can show their support for kids with cancer by turning their homes, workplaces, schools and communities gold. It must be so incredibly difficult to be a parent of a child diagnosed with cancer. Many parents have given evidence and written submissions to the Senate Select Committee into Funding for Research into Cancers with Low Survival Rates, and their testimony has been utterly heartbreaking. I acknowledge in the chamber tonight two of my colleagues who are also on that committee, Senator Smith and Senator Griff, who have both been really great colleagues to work alongside on this committee. I note that it has impacted all members of the committee and witnesses alike to hear these heartbreaking stories that the parents have told us.
But we have also heard of parents using their experiences to help others. In Australia, The Royal Children's Hospital Melbourne's Children's Cancer Centre Parent Advisory Group, commonly called PAG, and Childhood Cancer Support are members of the CCI. PAG is a made up of a number of parents or carers of babies, children or adolescents who are being or have been treated for cancer or a haematological disease at The Royal Children's Hospital Melbourne's Children's Cancer Centre. Childhood Cancer Support is a not-for-profit organisation that, for the past 40 years, has been dedicated to providing families in Queensland affected by childhood cancer with a place to live that looks and feels like home.
There are many other organisations that raise funds for childhood cancer research, for example, The Kids Cancer Project, or that provide support for children with cancer, such as CanTeen, which I spoke about in this place only recently. While in the general population cancers like leukaemia have had large improvements in survival rates over the last few decades, there was little or no survival change for several types of childhood cancers over recent years. These include brain, kidney and liver cancers. The incidence of liver cancer in children is increasing by 2.5 per cent per year compared to a stable trend of a 0.2 per cent per year increase in the rate for all childhood cancers combined. The reasons for the apparent increase in the incidence of liver cancer are unknown. An international study involving the Australian Paediatric Cancer Registry is being planned to examine issues around childhood liver cancer.
Approximately 35 children, as I said before, which is equivalent to a fairly large classroom of children, will die from brain cancer alone this year in Australia. This weekend's Sunday Tasmanian and other News Corp papers throughout Australia launched a campaign to improve childhood brain cancer survival rates. I thank The Mercury for their article and for quoting me, as chair of the Select Committee into Funding for Research into Cancers with Low Survival Rates, in that article. That's because there needs to be drastic action to improve survival rates for brain cancer and other childhood cancers. Not only do survival rates need to improve but the impact of the cancer treatment also needs to improve. Unfortunately, children who survive cancer can suffer serious long-term consequences resulting from their treatment. Depending on factors such as the type of cancer and the treatment the child receives, there can be many different impacts on the child's overall health. Some examples include learning and behavioural problems, vision and hearing deficiencies, stunted growth, heart disease, reduced lung capacity, dental issues, impaired sexual development and a higher risk of secondary cancers—so there's still a lot of work to be done.
As chair of the Senate Select Committee into Funding for Research into Cancers with Low Survival Rates, I've heard some extremely sad stories from right around the country. The committee has heard from many parents who have lost their children to brain cancer or some other low-survival cancer. Cancer is a terrible disease, yet it seems more terrible when it affects children. As rapid advances have been made to improve survival rates for some of the better publicised cancers, I believe now is the time to concentrate more efforts on low-survival cancers, because too often the committee has heard the outcome isn't a good one. In one bright spot, though, time and time again we've been told of wonderful paediatric oncologists, nurses, doctors and other medical professionals who have gone over and beyond to make the children's lives better.
Recently I had the opportunity to visit the Royal Hobart Hospital's paediatric oncology outpatients clinic. I was there at the invitation of the Kids' Cancer Project. In this life, some people are simply an inspiration and do amazing things just to help others. Col Reynolds, founder of the Kids' Cancer Project, is one of those people. Twenty-five years ago he decided to start a charity to support research into childhood cancer. Since 1993 the Kids' Cancer Project has raised over $36 million to assist childhood cancer research, which is a remarkable feat. Now the Kids' Cancer Project has committed $140,000 over two years to support access to clinical trials for Tasmanian child, adolescent and young adult cancer patients. The project will assist with the establishment of a statewide children's and AYA cancer clinical trials unit at the Royal Hobart Hospital. This will make an extraordinary difference to the lives of many Tasmanian children and AYA patients with cancer and their families. Many families will no longer need to spend weeks or months separated while treatment is sought on the mainland, which is obviously a stressful and expensive process that can be very difficult for families. The children on the trials will be able to be treated in their home state, closer to friends and supportive family members. I'm extremely excited by this development, and I hope this initiative will result in a dramatic improvement in cancer treatment for Tasmanian children.
While I was at the Royal Hobart Hospital, I felt extremely privileged to meet some of the young patients. One of these young patients was little two-year-old called George. George has brain cancer, but he's still a happy, smiling little boy, and I say to his mum now: I think you and George are both extremely brave. It's children like George who inspire me to continue raising awareness of this terrible disease. Another organisation that provides a lot of support for children with brain cancer and their families is the Cure Brain Cancer Foundation. I think most people here know that I've been involved with the Cure Brain Cancer Foundation for many years. I have to put in a little plug for the Hobart Walk4BrainCancer 2017.
This is the fourth Walk4BrainCancer event that I've organised in Hobart, and it will be held at Dru Point Bicentennial Park in Margate at noon on 5 November. It's a relaxing two-kilometre walk along the banks of North-West Bay, which is south of Hobart, and the aim is to raise funds and awareness for brain cancer research. People can register and start raising funds by heading to walkforbraincancer.com.au and clicking on the map of Tasmania. I'd like to encourage people to register, bring along their families and raise much-needed funds for this fantastic cause.
I do hope fervently that we can improve cancer survival rates, particularly for children and young adults. Each of us has a part to play. We can do so by raising awareness through the Childhood Cancer Awareness Month campaign, helping raise money for organisations that fund research across childhood cancers, like the Kids' Cancer Project; providing support to childhood cancer patients through organisations like CanTeen; or raising funds for organisations like the Cure Brain Cancer Foundation, which provides support and funds research into particular types of cancers that impact children particularly hard. There is so much more to do to improve childhood cancer diagnosis treatments and survival rates. Please use September to talk about this issue with your families, friends and colleagues, help out where you can and remember to light up gold for kids with cancer.
The PRESIDENT: Thank you, Senator Bilyk. I think we'll overlook your plug there—that's quite okay!
Migration
Senator GRIFF (South Australia) (22:06): In 2016, Deng Adut was named NSW Australian of the Year. He delivered an address at the Sydney Conservatorium of Music about freedom from fear. He said:
To appreciate the value of freedom one must first be denied it. To know real fear gives special meaning and yearning to being free of fear.
Deng went on to share what freedom of fear meant to him in the context of his own story, emphasising how very lucky we are to enjoy freedom from fear and how very unlucky many others are who neither choose nor deserve their fate.
He spoke of his memories as a child soldier, of losing the right to be innocent and to be a child, of memories of the deadened face and gaunt and skeletal body of one of his nephews lying on a cornsack, of watching other boys his age abused and killed, of being abused himself and, perhaps worst of all, of experiencing what it was like to be expected to kill or be killed. He spoke of being denied the right to become an initiated member of his tribe and how difficult it was having someone so special taken away from him. Finally, Deng spoke of his gratitude to Australia for opening the doors not only to him but also to all other migrants like him. He said:
Without your spirit of a fair go, my story could not have been told.
It was this opportunity that finally made him feel that he belonged—the mark of inclusiveness he had yearned for all of his life.
Deng's story is one of many hundreds of thousands that I could highlight tonight. I chose his because it epitomises all that we stand to lose if we cave in to the fearmongering and dog whistles that seem to have become all too common in this place. Much of this dog whistling appears to be seeping into this government's political agenda. In recent times, we have seen a shift in migration policy that doesn't sit comfortably with many of us. Right now, we are considering changes to our citizenship laws that will alter everything we know about becoming an Australian. The impacts of some of these changes are so far-reaching that it beggars belief. If you scratch beneath the surface, you'll see that the proposed changes have very little to do with integration or even national security and everything to do with instilling fear.
The bill targets people from non-English backgrounds and particularly targets vulnerable people. It ignores everything we know about the protections these people ought to have and says to them, 'You aren't good enough, literate enough, smart enough, hardworking enough or'—maybe even by inference—'white enough to be an Australian.' It says to those people, 'We don't trust you, and we don't want you to live in Australia.' It instils fear and it foments hate. It targets families and children as if in an attempt to wear them down to ultimate defeat. Personally, I think the majority of Australians are fair-minded and would not support these changes. I believe the majority of Australians have no problem with our current citizenship laws, regardless of their views on other migration issues, such as offshore detention. The government is, in effect, trying to solve a problem that doesn't exist in the first place.
In some ways, the proposed citizenship changes don't come as a surprise to me. They are certainly in keeping with the minister's comments last year, when he expressed concerns over refugees not being literate in their own language, let alone English, suggesting that they were a threat to Australian jobs and only likely to end up languishing on unemployment queues. They are also in keeping with last week's move by the government to cease payments and accommodation for refugees in Australia for medical treatment, in an effort to drive them out of Australia. It's mean and it's ugly, and because of it we stand to lose people like Deng—someone who is living proof of what the human spirit can help a kid achieve, if given half a chance.
We stand to lose people like His Excellency Hieu Van Le, the Governor of my home state of South Australia, who arrived here by boat as a refugee in 1977 after fleeing from the communist regime in Vietnam. We stand to lose people like author, actor, comedian and artist Anh Do, who fled to Australia with his family, also by boat, from Vietnam in 1980. We stand to lose people like the great late Les Murray, who couldn't speak a word of English when he and his family were forced to flee from their homeland, Hungary, in 1956, following the Soviet invasion. Les was just 11 when he arrived in Australia. He went on to become one of Australia's most recognised and loved sporting identities. He also became a fierce advocate of tolerant policies towards asylum seekers and refugees. In 2009, when he was presented with the lifetime achievement award for contribution to sports journalism at the Australian Sports Commission Media Awards, Les said:
That I, who came here as a penniless child refugee over 50 years ago, should receive such an award says a lot about this country and about what a welcoming, open and receptive society we are.
If the proposed citizenship changes are implemented, we stand to lose tens of thousands of people who didn't come here as refugees but for whom citizenship could now be out of reach because they will never be able to meet the proposed English language test. Indeed, many of us wouldn't even be here today if our parents or grandparents or great-grandparents were required to meet the government's proposed changes. I certainly know mine wouldn't have—they fled from Russian pogroms in 1900 and came to Australia with limited English language skills but a tremendous desire to make a new life in Australia and contribute to our fantastic social fabric.
Australia has very much been enriched by having people like Deng, His Excellency Hieu Van Le, Anh Do, Les Murray and the many other migrants that arrived before and after them. Indeed, Australia is a nation built by migrants. Since free settlement began, settlers have travelled across oceans, all in search of a better life—from the Chinese traders and the Afghan cameleers of the gold rush era to the migrants of the early 1900s and then the 1950s and 1960s; from the Vietnamese boat people of the 1970s to the Indochinese and Middle Eastern asylum seekers of the late 1990s; and from the African refugee intake of the early 2000s to asylum seekers as we know them today and everyone else in between. Close to 10 million people have, either through choice or desperation, arrived on Australian shores, by boat and by plane, in search of a new and definitely better life.
Of all the English-speaking nations, Australia is the most multicultural, thanks to those 10 million British, European, Asian, African, Middle Eastern, American and New Zealand-born people. We are a melting pot of different races, languages, cultures and religions. We've gained a reputation for our approach to multiculturalism that is the envy of other nations. That is why the current direction of our citizenship policy beggars belief. It is an affront to all of those people who came here and forged ahead to make a life for themselves and their families, who embraced our way of life and enriched our society by sharing with us their own cultural values and beliefs. What the government is trying to do is nothing short of un-Australian. It undermines the very fabric of our society—a society that has been enriched and strengthened by migration.
Senate adjourned at 22:15
DOCUMENTS
Tabling
The following documents were tabled by the Clerk pursuant to statute:
[ Legislative instruments are identified by a Federal Register of Legislation (FRL) number. An explanatory statement is tabled with an instrument unless otherwise indicated by an asterisk.]
Australian Citizenship Act 2007—
Citizenship (Authorisation) Revocation and Authorisation Amendment Instrument 2017—IMMI 17/105 [F2017L01074].
Citizenship (Authorisation) Revocation and Authorisation Instrument 2017—IMMI 17/098 [F2017L01044].
Australian Communications and Media Authority Act 2005 and Radiocommunications Act 1992—Radiocommunications (Consequential Amendments) Instrument 2017 (No. 1) [F2017L01075].
Australian Education Act 2013—Australian Education (SES Scores) Amendment Determination 2017 (No. 1) [F2017L01047].
Autonomous Sanctions Act 2011—Autonomous Sanctions Regulations 2011—
Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Syria) List 2017 [F2017L01080].
Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Ukraine) Amendment List 2017 (No. 2) [F2017L01118].
Autonomous Sanctions (Designated Persons and Entities – Democratic People’s Republic of Korea) Amendment List 2017 (No. 2) [F2017L01063].
Bankruptcy Act 1966—Insolvency Practice (Bankruptcy) Amendment (Minor Amendments) Rules 2017 [F2017L01103].
Broadcasting Services Act 1992—Broadcasting Services (Events) Notice (No. 1) 2010—Amendment No. 7 of 2017 [F2017L01100].
Building and Construction Industry (Improving Productivity) Act 2016—Code for the Tendering and Performance of Building Work Amendment (Infrastructure Exemptions) Instrument 2017 [F2017L01052].
Carbon Credits (Carbon Farming Initiative) Act 2011—
Carbon Credits (Carbon Farming Initiative) Amendment Rule (No. 2) 2017 [F2017L01039].
Carbon Credits (Carbon Farming Initiative—Plantation Forestry) Methodology Determination 2017 [F2017L01038].
Census and Statistics Act 1905—Census and Statistics (Statistical Information) Amendment Direction 2017 [F2017L01041].
Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988—Child Support Legislation (Exclusion of Courts of Summary Jurisdiction) Proclamation 2017 [F2017L01096].
Christmas Island Act 1958—Christmas Island Legislation Amendment (2017 Measures No. 1) Ordinance 2017 [F2017L01107].
Civil Aviation Act 1988—
Civil Aviation Regulations 1988—Direction — number of cabin attendants (Jetstar Airways)—CASA 84/17 [F2017L01068].
Civil Aviation Safety Regulations 1998—Fitting – Wing Attach – Lower Forward Carry Through Spar (Left and Right Wings)—AD/CESSNA 400/120 [F2017L01119].
Commissioner of Taxation—Public Rulings—
Class Rulings—
Addenda—CR 2015/111 and CR 2016/58.
CR 2017/53-CR 2017/59.
Product Rulings—
Addendum—PR 2014/14.
PR 2017/10.
Taxation Ruling—Addendum—TR 2006/11.
Competition and Consumer Act 2010—
Competition and Consumer (Industry Code—Sugar) Regulations 2017 [F2017L00387]—Replacement explanatory statement.
Competition and Consumer (Inland Terminals) Declaration 2017 [F2017L01077].
Guidelines relating to deferral of arbitrations and backdating of determinations under Part IIIA of the Competition and Consumer Act 2010 [F2017L01112].
Corporations Act 2001—
ASIC Corporations (Disclosure Relief—Offers to Associates) Instrument 2017/737 [F2017L01070].
ASIC Corporations (Repeal) Instrument 2017/738 [F2017L01071].
Insolvency Practice Rules (Corporations) Amendment 2017 (No. 1) [F2017L01088].
Currency Act 1965—
Currency (Royal Australian Mint) Amendment Determination (No. 1) 2017 [F2017L01087].
Currency (Royal Australian Mint) Determination (No. 5) 2017 [F2017L01089].
Defence Act 1903—Section 58B—
Health support allowance – amendment—Defence Determination 2017/27 [F2017L01048].
Overseas financial supplement—Defence Determination 2017/28 [F2017L01115].
Defence Force Retirement and Death Benefits Act 1973—Defence Force Retirement and Death Benefits Regulations 2017 [F2017L01095].
Environment Protection and Biodiversity Conservation Act 1999—
Section 269A – Instrument Adopting a Recovery Plan (Numbat) (4 August 2017) [F2017L01035].
Section 269A – Instrument Adopting a Recovery Plan (Western Ringtail Possum) (4 August 2017) [F2017L01034].
Section 269A – Instrument Adopting Recovery Plan (Threatened Tasmanian Orchids) (9 August 2017) [F2017L01043].
Section 269A - Instrument Jointly Making the Recovery Plan for the Giant Freshwater Crayfish (7 July 2017) [F2017L01040].
Export Control Act 1982—Export Control (Orders) Regulations 1982—Export Control (Animals) Amendment (2017 Measures No. 1) Order 2017 [F2017L01113].
Family Law Act 1975—Family Law Amendment (Insolvency Law Reform) Rules 2017 [F2017L01091].
Federal Circuit Court of Australia Act 1999—Federal Circuit Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017 [F2017L01085].
Federal Court of Australia Act 1976—Federal Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017 [F2017L01106].
Financial Framework (Supplementary Powers) Act 1997—Financial Framework (Supplementary Powers) Amendment (Health Measures No. 5) Regulations 2017 [F2017L01086].
Health Insurance Act 1973—
Health Insurance (Allied Health Services) Amendment (Health Care Homes) Determination 2017 [F2017L01092].
Health Insurance (Extended Medicare Safety Net) Determination 2017 [F2017L01082].
Health Insurance (FTB(A) Family Determination 2017 [F2017L01081].
Health Insurance (General Medical Services Table) Amendment (Obstetrics) Regulations 2017 [F2017L01090].
Industry Research and Development Act 1986—Industry Research and Development (Onshore Gas Social and Economic Research Fund Program) Instrument 2017 [F2017L00752]—Replacement explanatory statement.
Inspector of Transport Security Act 2006—Inspector of Transport Security Regulations 2017 [F2017L00510]—Replacement explanatory statement.
Legislation Act 2003—Legislation (Exemptions and Other Matters) Amendment (Sunsetting Exemptions) Regulations 2017 [F2017L01093].
Migration Act 1958—
Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017—IMMI 17/015 [F2017L01042].
Migration Regulations 1994—
Migration (IMMI 17/053: Specification of Transit Passengers Having Prescribed Status – Special Purpose Visas) Instrument 2017—IMMI 17/053 [F2017L01102].
Migration (IMMI 17/092: Areas of Australia and kinds of work – specified Subclass 462 work) Instrument 2017—IMMI 17/092 [F2017L01116].
Military Justice (Interim Measures) Act (No. 1) 2009—Military Justice (Interim Measures) (Remuneration and Entitlements) Amendment (Chief Judge Advocate) Regulations 2017 [F2017L01101].
National Health Act 1953—
National Health Determination under paragraph 98C(1)(b) Amendment 2017 (No. 5)—PB 64 of 2017 [F2017L01109].
National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2017 (No. 8)—PB 67 of 2017 [F2017L01120].
National Health (Highly specialised drugs program) Special Arrangement Amendment Instrument 2017 (No. 7)—PB 66 of 2017 [F2017L01117].
National Health (Listed drugs on F1 or F2) Amendment Determination 2017 (No. 7)—PB 68 of 2017 [F2017L01110].
National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2017 (No. 7)—PB 62 of 2017 [F2017L01098].
National Health (Pharmaceutical benefits – early supply) Amendment Instrument 2017 (No. 6)—PB 65 of 2017 [F2017L01105].
National Health (Price and Special Patient Contribution) Amendment Determination 2017 (No. 6)—PB 63 of 2017 [F2017L01111].
National Health (Weighted average disclosed price – October 2017 reduction day) Amendment Determination 2017 (No. 1)—PB 69 of 2017 [F2017L01084].
National Health Reform Act 2011—Direction to the Independent Hospital Pricing Authority on the performance of its functions under section 226 – No. 1/2017 [F2017L01099].
Norfolk Island Legislation Amendment Act 2015—Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule (No. 2) 2017 [F2017L01064].
Occupational Health and Safety (Maritime Industry) Act 1993—Occupational Health and Safety (Maritime Industry) Amendment (Incident Notification and Reporting) Regulations 2017 [F2017L01104].
Primary Industries (Customs) Charges Act 1999—Primary Industries (Customs) Charges (Designated Bodies) Declaration 2017 [F2017L01065].
Primary Industries (Excise) Levies Act 1999—Primary Industries (Excise) Levies (Designated Bodies) Amendment Declaration 2017 [F2017L01066].
Private Health Insurance Act 2007—Private Health Insurance (Prostheses) Rules 2017 (No. 2) [F2017L01094].
Public Governance, Performance and Accountability Act 2013—
Commonwealth formed and acquired shares in a company—WSA Co Limited—20 August 2017.
Commonwealth Grants Rules and Guidelines 2017 [F2017L01097].
Public Governance, Performance and Accountability (Charging for Regulatory Activities) Order 2017 [F2017L01073].
Radiocommunications Act 1992—
Radiocommunications (Devices Used in the Inshore Boating Radio Services Band) Standard 2017 [F2017L01078].
Radiocommunications (Digital Cordless Communications Devices — DECT Devices) Standard 2017 [F2017L01079].
Radiocommunications (HF CB and Handphone Equipment) Standard 2017 [F2017L01076].
Radiocommunications (Register of Radiocommunications Licences) Determination 2017 [F2017L01069].
Radiocommunications (Unacceptable Levels of Interference — 2 GHz Band) Determination Variation 2017 (No. 1) [F2017L01072].
Remuneration Tribunal Act 1973—
Members of Parliament – Travelling Allowance—Remuneration Tribunal Determination 2017/16 [F2017L01037].
Official Travel by Office Holders—Remuneration Tribunal Determination 2017/15 [F2017L01036].
Remuneration and Allowances for Holders of Public Office and Judicial and Related Offices—Remuneration Tribunal Determination 2017/17 [F2017L01108].
Social Security Act 1991—
Social Security (Exempt Lump Sum – Victorian Industry Transition Assistance Payment) Determination 2017 [F2017L01083].
Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2017 [F2017L00719]—Replacement explanatory statement.
Therapeutic Goods Act 1989—Therapeutic Goods Information (Medical Devices) Specification 2017 [F2017L01114].
VET Student Loans Act 2016—VET Student Loans (Approved Course Provider Application Fee) Determination 2017 [F2017L01060].
Veterans’ Entitlements Act 1986—
Statement of Principles concerning alcohol use disorder (Balance of Probabilities)—No. 49 of 2017 [F2017L01046].
Statement of Principles concerning alcohol use disorder (Reasonable Hypothesis)—No. 48 of 2017 [F2017L01045].
Statement of Principles concerning benign paroxysmal positional vertigo (Balance of Probabilities)—No. 57 of 2017 [F2017L01051].
Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis)—No. 56 of 2017 [F2017L01050].
Statement of Principles concerning influenza (Balance of Probabilities)—No. 45 of 2017 [F2017L01056].
Statement of Principles concerning influenza (Reasonable Hypothesis)—No. 44 of 2017 [F2017L01054].
Statement of Principles concerning malaria (Balance of Probabilities)—No. 47 of 2017 [F2017L01061].
Statement of Principles concerning malaria (Reasonable Hypothesis)—No. 46 of 2017 [F2017L01049].
Statement of Principles concerning popliteal entrapment syndrome (Balance of Probabilities)—No. 55 of 2017 [F2017L01058].
Statement of Principles concerning popliteal entrapment syndrome (Reasonable Hypothesis)—No. 54 of 2017 [F2017L01053].
Statement of Principles concerning rheumatoid arthritis (Balance of Probabilities)—No. 51 of 2017 [F2017L01057].
Statement of Principles concerning rheumatoid arthritis (Reasonable Hypothesis)—No. 50 of 2017 [F2017L01055].
Statement of Principles concerning tooth wear (Balance of Probabilities)—No. 53 of 2017 [F2017L01062].
Statement of Principles concerning tooth wear (Reasonable Hypothesis)—No. 52 of 2017 [F2017L01059].
Veterans’ Entitlements (Statements of Principles—Cumulative Equivalent Dose) Amendment Determination 2017—No. 58 of 2017 [F2017L01067].
Tabling
The following documents were tabled pursuant to standing order 61(1) (b):
Australian Crime Commission (ACC) Board—Report for 2015-16.
Australian Meat and Live-stock Industry Act 1997—Live-stock mortalities during export by sea—
Report for the period 1 January to 30 June 2017. [Received 31 August 2017]
Report for the period 1 July to 31 December 2016—Replacement. [Received 31 August 2017]
Australian National Audit Office—Report for 2016-17.
Indigenous Business Australia (IBA)—Corporate plan 2017-18. [Received 29August 2017]
Institutional Responses to Child Sexual Abuse—Royal Commission—Report of case study no. 40—The response of the Australian Defence Force to allegations of child sexual abuse, dated August 2017. [Received 22 August 2017]
National Health and Medical Research Council (NHMRC)—Corporate plan 2017-18. [Received 24 August 2017]
Norfolk Island Administration—Financial statements for 2015-16—Independent report of the Australian National Audit Office.
Regional Forest Agreement between the Commonwealth and Tasmania—Variation, 18 August 2017.
Treaty—Multilateral—Framework Agreement on the establishment of the International Solar Alliance (ISA) (New Delhi, 18 July 2017)—Text, together with national interest analysis.
COMMITTEES
Government Response to Report
Australian Government r esponse t o t he Sen ate Standing Committee on Rural And Regional Affairs a nd Transport References report on t he Inquiry Into Beef Imports Into Australia (2013)
August 2017
Introduction
On 27 February 2013, the Senate referred the matter of beef imports into Australia to the Senate Standing Committee on Rural and Regional Affairs and Transport References Committee (the Committee) for inquiry and report. The Committee produced a first and interim report from the inquiry. No final report was produced, and the inquiry was closed in November 2013.
The Australian Government's response to the recommendations of the 2013 inquiry follows.
Recommendation 1 (First Report - 2013) — The Committee recommends that beef and beef products should not be imported from any country that has: reported any cases of BSE; or cross ‑border trade with an adjoining country which has reported any cases of BSE .
Response: Noted.
The Australian Government regards the health and safety of Australian consumers and our favourable animal health status as matters of the highest importance. As such, the Government's current policy on imported beef and beef products does not allow these products to be imported unless the risks associated with all diseases of quarantine concern and affecting public health and safety, including bovine spongiform encephalopathy (BSE), are adequately managed.
Australia maintains comprehensive controls that protect Australians from exposure to unsafe food through the application of food standards developed by Food Standards Australia New Zealand (FSANZ), and implemented by the Department of Agriculture and Water Resources (for imported products) and state and territory food authorities.
Australia's policy on BSE and imported food safety utilises a science-based risk assessment of applicant countries based on the World Organisation of Animal Health (OIE) risk assessment methodology. Australia's import conditions require exporting countries to prove they have acceptable controls in place and that those controls are monitored. This includes controls on food safety, animal health, traceability, surveillance, animal feeding and slaughter practices. FSANZ assesses the controls which are in place for each country which applies to Australia for a BSE Food Safety Assessment, and the assessment includes an in-country verification visit by FSANZ if considered necessary. This process and import conditions for beef and beef products are outlined in the Australian Government's document Bovine Spongiform Encephalopathy: Requirements for the importation of Beef and Beef Products for Human Consumption—Effective 1 March 2010.
The comprehensive assessment by FSANZ determines the BSE risk category to which a country belongs and therefore the certification that must accompany each consignment of beef and beef products imported into Australia. Any country that does not meet the assessment requirements will not be able to export their products to Australia for human consumption.
The Review of Scientific Evidence to Inform Australian Policy on Transmissible Spongiform Encephalopathies (TSEs) 2009 Addendum by Professor Mathews assessed BSE risks pertaining to beef for human consumption. The Addendum notes the decline in BSE cases worldwide and the increased confidence in the efficacy of measures to prevent the occurrence of BSE cases in cattle. These factors are reflected in the much-reduced risk globally of transmission of the BSE agent through beef for human consumption, and support the current Australian Government policy.
Australia must ensure that its processes are consistent with its obligations under the World Trade Organisation (WTO)Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Decisions on beef imports are based on risk assessment processes which are consistent with Australia's WTO obligations, and are based on a robust, science-based approach for the evaluation of countries with regard to BSE. Trading partners were increasingly critical of Australia's 2001 policy largely because it was inconsistent with current science. This left Australia vulnerable to retaliatory trade action. The trend in key trading partners has been to align BSE import food safety policies for beef more closely to the OIE's international BSE standard, which can include permitting beef imports from some countries that have reported BSE cases.
Recommendation 2 (First Report - 2013) — The Committee recommends that the Australian Government work with OIE to develop a live test for BSE.
Response: Agree in principle.
The Australian Government, through the Department of Agriculture and Water Resources' Office of the Chief Veterinary Officer, continues to work with the OIE to develop and improve the international standards and guidelines for the prevention, surveillance and management of BSE.
There are a number of post-mortem laboratory tests that have been developed and validated to diagnose BSE in cattle. A number of these tests have been adopted by Australia's animal health laboratories and are being used in the national Transmissible Spongiform Encephalopathy Freedom Assurance Program, which is supported by the Australian Government. The laboratories in this program, including Australian Animal Health Laboratory in Geelong, have been working with overseas laboratories on tests for BSE.
Recommendation 3 (First Report - 2013) — The Committee recommends that the relevant Minister report any decision to approve or reject such recommendations to the Parliament and this Committee prior to a determination by the Director of Animal and Plant Quarantine, in the case of a BSE country assessment, and prior to formal advice being provided to the applicant country .
Response: Noted.
Australia is a strong international advocate of open markets and the application of science‑based decision-making on issues of food safety, and human, animal and plant health. The WTOSPS Agreement requires WTO Members, among other things, to ensure that quarantine rules are based on scientific principles and are not maintained without sufficient scientific evidence.
A robust decision-making framework for the scientific management of both biosecurity and food safety import risk has been established by the Australian Parliament through primary and subordinate legislation, which delegates the decision-making powers under the legislation to officials in the relevant departments. This framework for conducting scientific analyses and implementing Sanitary and Phytosanitary (SPS) measures underpins the integrity and independence of our biosecurity and food safety import risk processes.
Consistent with our international obligations, the Australian Government adopts a science-based approach to decisions about the entry into Australia of imported products. Decision-makers are supported in their decisions by a range of scientific expertise already existing in government agencies (in some cases with the guidance of eminent and independent scientists). There is also an existing range of cross-agency cooperation measures that contribute to the overall strength of the legislated measures adopted by the Australian Parliament.
Ministerial decision-making and parliamentary review of import risk assessments would be inconsistent with Australia's independent, scientifically-based decision-making processes as required under our obligations in the SPS Agreement and bring into question the credibility and legitimacy of our system. It would likely be criticised by trading partners as political interference. Australia would be concerned if our agricultural exports faced political decision-making processes when SPS measures were being developed and implemented in our export markets.
The Australian Government (Department of Agriculture and Water Resources and Department of Health) works collaboratively with the New Zealand Government and the Australian state and territory governments, through the Australia and New Zealand Ministerial Forum on Food Regulation (the Forum), to develop food regulation policy. FSANZ develops national food standards, having regard to policy guidance from the Forum. State and territory governments develop and administer food legislation, which gives effect to the requirements of the Australia New Zealand Food Standards Code (the Code).
The Imported Food Inspection Scheme, administered by the Department of Agriculture and Water Resources under the Imported Food Control Act 1992, is a risk-based inspection scheme that aims to ensure that imported foods comply with the Code. If unsafe or non-compliant imported food is identified, it is re-exported or destroyed or, in some cases, treated in order to bring it into compliance.
The Biosecurity Act 2015 (the Biosecurity Act) and the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 prohibit the importation of certain goods unless an import permit is granted. This applies to many commodities, including beef and beef products.
Sections 173 and 174 of the Biosecurity Act require that the directors of Biosecurity and Human Biosecurity are responsible for determining if goods are to be prohibited or conditionally non-prohibited for import into Australia (i.e. require import conditions and/or import permits). These sections also provide that Determinations made under the Biosecurity Act are non-disallowable instruments.
The Director of Biosecurity makes decisions under the legislation, including whether to grant an import permit. In considering whether to issue an import permit, the Director (and the Director's delegates) is required to take into account a range of information. This includes the level of biosecurity risk and whether the imposition of conditions is necessary to reduce the level of biosecurity risk to an acceptable level.
Biosecurity import risk assessments carried out by the Department of Agriculture and Water Resources are a major reference source on which decisions are based. These risk assessments are science-based and apply Australia's appropriate level of protection (ALOP) for biosecurity risks, which is expressed as 'a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero'. Biosecurity Import Risk Analyses (BIRAs) are conducted in accordance with section 167 of the Biosecurity Act. The Minister may only direct that a BIRA is commenced, in accordance with section 168 of the Biosecurity Act.
It must be noted that the Director's decision to issue a permit is not the sole determinant of an import being allowed into the country. Imports are also subject to the Customs Act 1901 and other relevant laws depending on the particular class of import. In the case of beef, the Director also considers the outcomes of any FSANZ BSE food safety assessments, which are conducted by FSANZ at the request of countries which wish to apply to export beef or beef products for human consumption to Australia.
The Parliament and relevant Ministers have been kept informed of activities relating to BSE Food Safety Assessments. Substantive advice on the schedule of BSE food safety risk assessments and expected completion dates have been readily available through Senate Estimates hearings. Ministers of both the Department of Health and the Department of Agriculture and Water Resources are provided with the FSANZ assessment schedule and work timetable and formally alerted of all BSE food safety risk assessment decisions pending public release of the outcomes.
Australian Government r esponse t o t he Sen ate Standing Committee on Rural and Regional Affairs a nd Transport References report on t he Inquiry Into The Possible Impacts And Consequences For Public Health, Trade And Agriculture Of The Government ' s Decision To Relax Import Restrictions On Beef (2010)
August 2017
Introduction
On 20 October 2009, changes were made to Australia's policy on bovine spongiform encephalopathy (BSE) and the safety of imported food, specifically relating to beef and beef products. The new policy, which came into effect on 1 March 2010, allows beef to be imported from countries with prior cases of BSE, provided they can prove they have acceptable BSE controls in place and that those controls are effectively monitored. This includes controls on animal feeding practices, surveillance, transportation, animal identification and traceability, slaughtering, food safety and food recall systems. The new policy replaced the policy put in place in 2001 which included a ban on imports of beef and beef products from all countries that had reported cases of BSE.
Any country wishing to export beef into Australia must now apply to Food Standards Australia New Zealand (FSANZ) and undergo an assessment. The assessment determines whether the beef and beef products from that country represent a risk to the health of Australian consumers and what import conditions would need to be imposed by Australia before beef and beef products could be imported for human consumption. For fresh (chilled or frozen) beef, the Department of Agriculture and Water Resources will also conduct an animal biosecurity risk assessment.
On 9 November 2009, the Senate Standing Committee on Rural and Regional Affairs and Transport References (the Committee) announced it would conduct an inquiry into the possible impacts and consequences for public health, trade and agriculture of the Australian Government's decision to relax import restrictions on beef. The Committee produced a first and a final report from the inquiry in 2010.
The Australian Government's response to the recommendations of the 2010 inquiry follows.
Recommendation 1 (First Report - 2010) — The Committee recommends that a clear policy through which Australia ' s provisions for the recall of beef and beef product will be exercised in the event of an Australian case of BSE should be developed in consultation with the Australian beef industry. The Committee also recommends that a process is initiated through COAG to seek the input and agreement of the relevant Federal, State and Territory human health and food safety Ministers.
Response: Agree in principle.
FSANZ has worked with the states and territories to develop a contingency plan for managing the domestic food safety aspects of any potential Australian case of BSE. The contingency plan forms an annex to the National Food Incident Response Protocol (NFIRP), and determines whether beef products comply with the BSE provisions set out in Standard 2.2.1 of the Australia New Zealand Food Standards Code (the Code). In the event of detection of BSE in Australia, the product would be recalled under the provisions set out in the NFIRP. On 3 December 2010, the former Australia and New Zealand Food Regulation Ministerial Council, now the Australia and New Zealand Ministerial Forum on Food Regulation (the Forum), endorsed the Annex to the National Food Incident Response Protocol for BSE and Food Safety (the BSE Annex).
Recommendation 2 (First Report - 2010) — The Committee recommends that Australia ' s Bovine Spongiform Encephalopathy (BSE): Requirements for the Importation of Beef and Beef Products for Human Consumption—effective 1 March 2010 and all administrative processes for the assessment of applications from countries seeking to import beef and/or beef product be suspended pending the outcome of a formal import risk analysis modelled on the expanded import risk analysis process provided for in the Import Risk Analysis Handbook 2007 (updated 2009).
Response: Noted.
Australia has effective controls in place to mitigate BSE risk.
The Bovine Spongiform Encephalopathy (BSE): Requirements for the Importation of Beef and Beef Products for Human Consumption—effective 1 March 2010 was developed by a range of federal government departments and agreed to by the Government. It was also endorsed by industry stakeholders. The implementation of the policy with respect to the evaluation of countries is undertaken by FSANZ and the assessment process is overseen by the Australian BSE Food Safety Assessment Committee. The Department of Agriculture and Water Resources provides technical assistance to the evaluation program through its membership on the BSE Food Safety Assessment Committee. All country reports pass through this Committee for approval before being endorsed by FSANZ.
Additionally, representatives of the Department of Foreign Affairs and Trade and the Department of Agriculture and Water Resources meet regularly with FSANZ management to discuss the program and its activities, and provide trade and technical assistance where required.
These processes ensure a robust evaluation is undertaken of countries exporting to Australia. The level of co-operation between the agencies ensures that the endorsed outcomes of BSE food safety country evaluations have been extensively scrutinised and are well supported. A classification of Category 1 or Category 2 BSE risk status by FSANZ allows access for heat-treated shelf-stable beef and beef products (for example retorted canned product) for human consumption from the applicant country, on the basis of the treatment meeting current biosecurity requirements.
Category 1 status means there is a minimal likelihood that the BSE agent has or will become established in the national herd from that country and enter the human food chain. Beef and beef products derived from animals from these countries are therefore regarded as posing a minimal risk to human health. Category 2 status is for countries that have either not reported cases of BSE, but there are identified risk factors, or they have reported BSE but pose a minimal level of risk through effective implementation of, and compliance with, appropriate BSE control measures. The risk of beef and beef products potentially containing the BSE agent is mitigated through more stringent certification requirements to reflect this level of risk.
If a country also requests access for fresh (chilled or frozen) beef then the animal biosecurity risk needs to be assessed by the Department of Agriculture and Water Resources. Both the FSANZ BSE food safety risk assessment and the Department of Agriculture and Water Resources biosecurity risk assessment need to be successfully completed before permission to export fresh (chilled or frozen) beef from those countries to Australia may be given.
Recommendation 3 (First Report - 2010) — The Committee recommends that FSANZ revise the Australian process to assess BSE risk, including the Australian Questionnaire to Assess BSE Risk, to include a clear requirement that applicant countries must demonstrate that they have in place a national animal identification scheme with the same physical ability to trace an individual animal from birth to point of retail sale as Australia ' s National Livestock Identification System .
and
Recommendation 2 (Final Report -2010) — The Committee recommends that unless there is full traceability across national borders (equivalent to Australia ' s traceability requirements) both countries must be considered to pose equal risk.
Response: Agree in principle.
Countries that wish to export beef and beef products to Australia are required to demonstrate that they have adequate livestock identification and traceability systems in place which deliver equivalent outcomes for the control of BSE to those of Australia's National Livestock Identification System (NLIS). NLIS provides for livestock identification and traceability from their birthplace to the point of slaughter.
Requirements for the traceability of cattle and products derived from them are built into the Australian Questionnaire to Assess BSE Risk. The FSANZ BSE food safety risk assessment considers an applicant country's policies and practices on imports of cattle and their products when assessing risk.
Recommendation 4 (First Report - 2010) — The Committee recommends that FSANZ revise the Australian process to assess BSE risk, including the Australian Questionnaire to Assess BSE Risk, to include a mandatory requirement for an in-country inspection to be undertaken as part of the assessment of each application to import beef and/or beef product to Australia .
Response: Noted.
Australia has robust processes in place to determine whether an in-country inspection is required.
The announcement of a change to Australia's BSE imported food safety policy included a provision for FSANZ to undertake in-country inspections as part of the risk assessment process. In-country inspections are undertaken where there is a need to collect further information on a country's systems; and/or where verification of the effectiveness of application of a country's BSE food safety control measures is indicated on analysis of the BSE questionnaire response. FSANZ may also seek advice from the Department of Agriculture and Water Resources on assessing the performance of the relevant competent authority and its systems of certification and verification.
To date, FSANZ has conducted in-country verification visits to all of the countries for which it has completed a BSE assessment under the 2010 policy.
Recommendation 5 (First Report - 2010) — The Committee recommends that the Government review the administrative framework through which policy relating to implications for food safety and plant and animal health arising from import applications is developed. The Committee recommends that final responsibility for the development and administration of such policy should rest with the Minister and that such policy and administrative procedures should be reflected in legislative instruments to ensure that they are subject to appropriate parliamentary scrutiny .
and
Recommendation 1(Final Report - 2010) — The Committee recommends a process whereby the relevant Minister is required to consider and rule on the recommendations provided by Biosecurity Australia, following an Import Risk Analysis, and the Australian BSE Food Safety Assessment Committee, following a country assessment. The committee also recommends that the relevant Minister report any decision to approve or reject such recommendations to the Parliament and this committee prior to a determination by the Director of Plant and Animal Quarantine, in the case of an Import Risk Analysis, or the Chief Executive Officer of FSANZ, in the case of a country assessment, and prior to formal advice being provided to the applicant country .
Response: Noted.
Australia is a strong international advocate of open markets and the application of science‑based decision-making on issues of food safety, and human, animal and plant health. The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) requires WTO Members, among other things, to ensure that quarantine rules are based on scientific principles and are not maintained without sufficient scientific evidence.
A robust decision-making framework for the scientific management of both biosecurity and food safety import risk has been established by the Australian Parliament through primary and subordinate legislation, which delegates the decision-making powers under the legislation to officials in the relevant departments. This framework for conducting scientific analyses and implementing SPS measures underpins the integrity and independence of our biosecurity and food safety import risk processes.
Consistent with our international obligations, the Australian Government adopts a science-based approach to decisions about the entry into Australia of imported products. Decision-makers are supported in their decisions by a range of scientific expertise already existing in the departments (in particular FSANZ, the Department of Agriculture and Water Resources and the Therapeutic Goods Administration; in some cases with the guidance of eminent and independent scientists). There is also an existing range of cross-agency cooperation measures that contribute to the overall strength of the legislated measures adopted by the Australian Parliament.
Ministerial decision-making and parliamentary review of import risk assessments would be inconsistent with Australia's independent, scientifically-based decision-making processes as required under our obligations in the SPS Agreement and bring into question the credibility and legitimacy of our system. It would likely be criticised by trading partners as political interference. Australia would be concerned if our agricultural exports faced political decision-making processes when SPS measures were being developed and implemented in our export markets.
The Australian Government (Department of Agriculture and Water Resources and Department of Health) works collaboratively with the New Zealand Government and the Australian state and territory governments, through the Forum, to develop food regulation policy. FSANZ develops national food standards, having regard to policy guidance from the Forum. State and territory governments develop and administer food legislation, which gives effect to the requirements of the Code.
The Imported Food Inspection Scheme, administered by the Department of Agriculture and Water Resources under the Imported Food Control Act 1992, is a risk based inspection scheme that aims to ensure that imported foods comply with the Code. If unsafe or non-compliant imported food is identified, it is re-exported or destroyed or, in some cases, treated in order to bring it into compliance.
The Biosecurity Act 2015 (the Biosecurity Act) and the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 prohibit the importation of certain goods unless an import permit is granted. This applies to many commodities, including beef and beef products.
Sections 173 and 174 of the Biosecurity Act require that the directors of Biosecurity and Human Biosecurity are responsible for determining if goods are to be prohibited or conditionally non-prohibited for import into Australia (i.e. require import conditions and/or import permits). These sections also provide that Determinations made under the Biosecurity Act are non-disallowable instruments.
The Director of Biosecurity makes decisions under the legislation, including whether to grant an import permit. In considering whether to issue an import permit, the Director (and the Director's delegates) is required to take into account a range of information. This includes the level of biosecurity risk and whether the imposition of conditions is necessary to reduce the level of biosecurity risk to an acceptable level.
Biosecurity import risk assessments carried out by the Department of Agriculture and Water Resources are a major reference source on which decisions are based. These risk assessments are science-based and apply Australia's appropriate level of protection (ALOP) for biosecurity risks, which is expressed as 'a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero'. Biosecurity Import Risk Analyses (BIRAs) are conducted in accordance with section 167 of the Biosecurity Act. The Minister may only direct that a BIRA is commenced, in accordance with section 168 of the Biosecurity Act.
It must be noted that the Director's decision to issue a permit is not the sole determinant of an import being allowed into the country. Imports are also subject to the Customs Act 1901 and other relevant laws depending on the particular class of import. In the case of beef, the Director also considers the outcomes of any FSANZ BSE food safety assessments.
The Parliament and relevant Ministers have been kept informed of activities relating to BSE Food Safety Assessments. Substantive advice on the schedule of BSE food safety risk assessments and expected completion dates have been readily available through Senate Estimates hearings. Ministers of both the Department of Health and the Department of Agriculture and Water Resources are provided with the FSANZ assessment schedule and work timetable and formally alerted of all BSE food safety risk assessment decisions pending public release of the outcomes.
Changes to the legislation are a matter for the Parliament and subordinate legislation is subject to parliamentary scrutiny.
Recommendation 6 (First Report - 2010) — The Committee recommends that Australia ' s current labelling requirements are amended to reflect the country of origin for all food products including unpackaged fresh beef .
and
Recommendation 3 (Final Report - 2010) — The Committee recommends that all food product be labelled with both the country of origin and the country of processing, if different .
Response: Noted.
All foods produced or imported for sale in Australia are required to comply with the food labelling standards. Standard 1.2.11 of the Code (administered by FSANZ) sets out mandatory country of origin labelling requirements for packaged food and most unpackaged fresh produce, including fresh fruit and vegetables, fish, pork, beef, chicken and lamb products. Changes to extend country of origin labelling to unpackaged meat products (beef, veal, lamb, hogget, mutton and chicken) came into effect on 18 July 2013. At the 27 July 2014 meeting of the Forum, Ministers agreed not to extend country of origin labelling to all remaining unpackaged primary food products, on the basis that it was not considered cost effective.
The state and territory food authorities are responsible for monitoring food within their jurisdictions for compliance with these labelling requirements. The Department of Agriculture and Water Resources has responsibility for enforcing these requirements at the border.
The Australian Consumer Law (ACL) prohibits businesses from making false or misleading representations regarding the origin of goods they supply, including food products. To provide certainty for businesses, Part 5-3 of the ACL also includes country of origin 'safe harbour' defences, which provide that the use of certain representations is not false or misleading where specific criteria are met.
On 21 July 2015, the Commonwealth Government announced proposed reforms to provide consumers with clearer, simpler information about where food comes from. The Government developed final proposals and a Decision Risk Impact Statement (RIS) for consideration by state and territory governments through the Legislative and Governance Forum on Consumer Affairs (CAF). CAF agreed to the final proposals on 31 March 2016.
The reforms will see the continuation of mandatory country of origin labelling for most food offered for retail sale in Australia. In addition to a statement about where the food was produced, grown, made or packaged, most Australian food will carry the familiar kangaroo symbol and an indication of the proportion of Australian ingredients by weight through a statement and a bar graph. Labels can also include the origin of specific ingredients, and the reforms will see clearer rules around when food labels can carry 'made in' or 'packed in' statements.
Under the reforms, if Australian beef is exported and re-imported into Australia without substantial transformation or the addition of ingredients from other countries, the label must also include a description (in brackets) of the processing that occurred outside Australia.
The first element of the reforms, an ACL Information Standard on country of origin labelling for food, commenced on 1 July 2016 with a two-year transition period. As a result of the introduction of this information standard the Forum agreed, on 29 August 2016, to remove the current country of origin labelling provisions from the Code with effect from 1 July 2018.
In addition, the ACL country of origin safe harbour provisions were amended through the Competition and Consumer Amendment (Country of Origin) Act 2017 (the Act). For claims like 'Made in', the changes make it clearer what substantial transformation means and remove the complex 50 per cent local production cost test, reducing regulatory burden across all industry sectors. The Act also removes redundant safe harbour provisions and introduces a new defence for claims in the form of marks required by information standards relating to the country of origin labelling of goods.
Other elements of the reforms will be introduced progressively during the transition period.
Report
COMMITTEE REPORTS AND GOVERNMENT RESPONSES T O PARLIAMENTARY COMMITTEE REPORTS P RESENTED OUT OF SITTING SINCE 17 AUGUST 2017
Committee reports relating to the consideration of bills—not available for consideration
Community Affairs Legislation Committee—Social Services Legislation Amendment (Better Targeting Student Payments) Bill 2017—Report, dated September 2017 and submissions. [Received 1 September 2017]