At the request of Senator Santoro, I move:
Question agreed to.
Debate resumed from 27 March, on motion by Senator Ellison:
That these bills be now read a second time.
Last night I concluded my comments about this suite of bills—the Aged Care (Bond Security) Bill 2005, the Aged Care (Bond Security) Levy Bill 2005 and the Aged Care Amendment (2005 Measures No. 1) Bill 2005by making the point that this government has missed a number of opportunities. It has been provided with plenty of advice to date about the necessary reforms that need to happen urgently in aged care. I made the point that the Senate Community Affairs References Committee report was received by this government some 10 months ago. In that report, there were a number of recommendations that, finally, after the debacle, after the horrific stories that we have heard in the last few weeks, this government seems to have adopted. But it is too little too late.
I take this opportunity to make the point that the ministerial advisory committee that met was an existing committee. Whilst it had representation of considerable value, it did not have representation from advocates of residents who live in aged care homes or from people with absolute expertise on elder abuse, and that was a huge oversight and a missed opportunity from the Minister for Ageing.
Now we have to wait for a cabinet submission. It has been announced with great fanfare, but let us get on with it, Minister. There is a lot to be done; we have to restore confidence in residential aged care in this country. I concur with the words of Paul Sadler, the well-respected Chief Executive Officer of the Aged and Community Services Association of NSW and ACT. He said in a letter to the editor in the Sydney Morning Herald:
So I believe the minister’s committee made a good start, but much more needs to happen.
He went on to say:
It is imperative that this happens as soon as possible, because we need to protect our older citizens before they and their families lose faith in the aged-care system.
We are very close to that point, and I suggest that the response by the minister to date has fallen well short of restoring confidence in residential aged care.
In the time that I have left, I take the opportunity to remind the Senate that it is this government that has presided over a diminution in the number of aged care beds that are currently provided per 1,000 people over 70 in Australia. In 1995 there were 92 operational aged care beds for every 1,000 people aged over 70 years. In 2005 there were only 85 residential aged care beds. That is a drop of seven beds for every 1,000 people over 70 in Australia, and I am afraid to say that the graph is going downhill. After 10 years, this government has not faced up to the aged care bed crisis in Australia. Every week I hear from families—and I know my colleagues hear from families, because they tell me, and I know that government senators and members hear from families—complaining about the inability to get their loved one the appropriate care they want in residential aged care.
When the Howard government came into office, there was a target of 90 beds for every 1,000 people aged over 70. Labor had exceeded that target. We were up to 92, but what is the case now? We are down to 85. Against the target of 90 beds per 1,000 people over 70, there is a shortage now of 9,275 beds. But, instead of fixing the problem, they quietly lowered the target. Now the target reads at 88 residential aged care beds for every 1,000 people over 70. Even against their own reduced target, there is still a shortage in this country of 5,500 aged care beds. There are thousands of frail, elderly Australians desperate for support and desperate to get into residential aged care so that their care needs can be delivered.
I know that the government will say, ‘We’ve increased the number of community aged care packages.’ Yes, that is good. We accept that. We think that is a great idea, but you cannot deny that people are looking for residential aged care beds, especially high-care beds. That is a truth that the government cannot hide behind. They cannot say that they will continue to increase the number of community aged care packages. That is well received but not enough. The Productivity Commission reported in 2005 that 30 per cent of people needing nursing home care have to wait more than three months to get a bed, which is up from a figure of 15 per cent in 2000. There are significant shortages of beds in Australia and that issue has to be dealt with.
In conclusion, Labor will support this proposal. It goes some way towards protecting the accommodation bonds that are held in Australia. But, as part of my contribution, I will move a second reading amendment that has been circulated in the chamber, which identifies the lack of action of this government. I move:
At the end of the motion add:
“but the Senate:
(1) notes:
(a) there have been allegations of sexual abuse in five aged care facilities in Australia.
(b) the only response, to date, from the Minister for Ageing to call together an existing aged care committee, which whilst contains people with expertise in aged care, did not include advocates of residents in aged care nor people with specific experience in elder abuse.
(2) Condemns the Government for failing to:
(a) conduct an independent inquiry to determine if there has been an increase in sexual abuse of residents in aged care facilities;
(b) respond to, for nearly 10 months since the tabling of the Senate Committee Report of the Community Affairs References Committee, Quality and Equity in Aged Care, which recommended in part:
12: That the Agency ensure that all facilities be subject to a minimum of one annual random or targeted spot check and at least one site visit with notification over its accredited period.
16: That the Commonwealth review the operations of the Aged Care Complaints Resolution Scheme to ensure that the Scheme:
17: That the Commonwealth examine the feasibility of introducing whistleblower legislation to provide protection for people, especially staff of aged care facilities, disclosing allegations of inadequate standards of care or other deficiencies in aged care facilities.
18: That the Commissioner for Complaints conduct an investigation into the nature and extent of retribution and intimidation of residents in aged care facilities and their families, including the need for a national strategy to address this issue.
(c) answer, on 2 March 2006, the Senate question on whether there were any other aged care facilities in Australia being investigated for sexual abuse allegations.
(3) Calls on the Federal Government to urgently restore community confidence in residential aged care in Australia”.
(Time expired)
I also want to speak on the Aged Care (Bond Security) Bill 2005 and related bills—but at a little less length than Senator McLucas did, mainly because I will actually address the bills rather than the extraneous issues that Senator McLucas raised. First, I want to make it clear that the government deserves to be commended for a quite extraordinary achievement with this package of legislation.
These bills address the potential for a very serious crisis in aged accommodation in Australia. With hundreds of millions of dollars of accommodation bonds being held by thousands of providers across the country, the potential for those providers to default in their obligations to their residents’ estates is quite significant. There are some providers who operate a large number of homes in this country, and if one of them were to enter into serious financial difficulty—heaven forbid—and a default occurred, there would be a very significant loss to perhaps tens of thousands of people. It is true to say that that has not occurred before. In fact, the Senate Community Affairs Legislation Committee heard that there was no evidence of any default in the obligation to repay accommodation bonds in Australia. Nonetheless, the potential remains.
With these bills, the government has put in place a scheme which will, for the first time, address that potential disaster in the industry. The scheme has obtained more or less unanimous support from the industry, notwithstanding the fact that the proposed regime will potentially place a significant obligation on providers in the industry to foot the bill in the event that there is a default by one or more other providers in the industry. Given the complexity of the arrangements that might have been entered into, to design a scheme which has the support of industry is a major achievement. We should not underplay that in the course of this debate. I congratulate the Minister for Ageing and I congratulate the Department of Health and Ageing for having steered such a major reform through the process of consultation with industry so as to achieve this very significant outcome.
As has been summarised already, these bills put in place an arrangement where, in the event that there is a default by a particular provider in the repayment of accommodation bonds to residents, there is the capacity to levy other providers in the industry—either as a whole or on a selective basis—to recover the costs that the Commonwealth incurs in taking on the responsibility of repaying those bonds to individuals or to their estates. That is a very important piece of security which we confer on residents of aged care facilities in this country. Very often, the product of residents’ life work is in those bonds which are placed in the care of those homes. At the present time there is no protection at all for those bonds. If a home becomes insolvent, for example, there is nothing to prevent those bonds being lost. This package represents a very significant step towards ensuring that those sorts of dangers are averted in the future.
In order to avoid, at all costs, a situation where a provider cannot repay bonds, the industry will need to exercise great vigilance over the standards of accountability and transparency that they use in administering not only the bonds but also the other government funding which those establishments receive. With other developments in the industry in recent years, such as the conditional adjustment payments, which the government has been making in exchange for greater transparency and accountability, these are steps towards ensuring that the likelihood of a default is reduced.
I want to make it clear that the attack that Senator McLucas has made on the government’s general administration of aged care in this country is deeply unwarranted. There is, quite frankly, a distortion of the facts being executed here in order to prove some other broader political point. This does not do anything to enhance the sense of security of people in aged care facilities in this country, and they ought to have a sense of security because Australia does have a high-quality aged care sector. The vast majority of providers do a good job, and the standard of care that they provide is of a high order. People who live in residential aged care facilities in this country can attest to that fact, and most of them do—notwithstanding the fact that there are some conspicuous cases where those standards have not been met.
The suggestion by Senator McLucas that the government is somehow dudding the elderly of Australia by reducing the proportion of aged care beds which are operational is simply without foundation. The fact is that this government has more than doubled expenditure on aged care in the last 10 years, at a time when, clearly, the population of Australia aged over 70 has not doubled. It has doubled that expenditure in real terms because it wants to provide greater opportunity and choice for people in their retirement years.
The government has succeeded in increasing choice by greatly increasing support for home based accommodation packages. That is, people today who wish to remain in their own homes have the option of doing so much more often than was the case under the former Labor government. Those options have been vastly increased, and of course we all know that nine out of 10 Australians—probably 99 out of 100 Australians—would prefer to continue to live in their own homes and to have support in those homes for as long as possible than to move into a residential facility, no matter how attractive those options might ultimately become.
That is what the government has been focusing on and why the number of aged care beds is a less significant factor than the range of choice available to people who are ageing and need assistance to continue to live in their own homes. That is the choice the government has provided with its package and that is what Senator McLucas so comprehensively failed to address.
If you were looking at the situation of aged care provision in this country, the range of choice available to you, the range of support available to you in residential facilities, the quality of those facilities and the support provided by the community to those facilities, you would not exchange for quids the situation that existed 10 or 12 years ago with the situation today. You would be absolutely better off under today’s regime and that is a tribute to this minister and to his predecessors.
I commend the government again on having engineered a quite significant reform in aged care provision in this country with its package. It amounts to a very important set of changes. I do not recall an occasion when as a member of the Community Affairs Legislation Committee I have had the opportunity to be part of a report which has had unanimous support among members. I think that every other bill referred to the legislation committee in this area in the past has had dissenting reports or at least additional comments. This is the first report I can recall which has not had those sorts of comments and it reflects the fact that the government has got it right with its package. I commend the minister on having taken the trouble to ensure that that is the case.
I rise to speak on the three bills relating to aged care: the Aged Care (Bond Security) Bill 2005, the Aged Care (Bond Security) Levy Bill 2005 and the Aged Care Amendment (2005 Measures No. 1) Bill 2005. The first two bills are designed to protect accommodation bonds held by residential aged care providers in the case of a provider becoming insolvent. The third bill will serve to amend the Aged Care Act 1997 to establish new prudential regulatory arrangements to improve the management of residents’ accommodation bonds and entry contributions. The trio of bills will together strengthen the protection of residents’ accommodation bonds, enhance requirements of aged care providers and guarantee the repayment of bond balances to residents. The Aged Care Amendment (2005 Measures No. 1) Bill also includes consequential amendments to the act to ensure that all rules relating to the bonds apply to all services holding bonds, whether they are residential care services or flexible care services.
Labor has already indicated that it will support these bills but I would like to reiterate comments that have already been made by several of my colleagues. We are concerned with the way in which the Howard government has managed aged care. Many of us are already familiar with Professor Warren Hogan’s comments about aged care in Australia. He has called for a comprehensive review of the aged care system. But we are still to see the minister make a move towards fixing the problems which are growing by the day and we are still to see any planning for the future.
The sector, the community and Labor are all sick of the government’s quick fixes when it comes to the aged care system. Recently we have seen sickening reports of alleged physical and sexual abuse of elderly women in aged care homes. I am hopeful that these reports relate to isolated incidents, as I am sure that the majority of workers in the sector are respected, totally dedicated to what they do and do a fantastic job in circumstances which, in most situations, are probably not the ideal. However, the Minister for Ageing needs to take further steps to ensure that such abuses are not able to occur.
A meeting the minister held this month with the Aged Care Advisory Committee agreed to several proposals which were, in fact, recommendations from the Senate inquiry into aged care that was tabled in June last year. That the government had failed to respond to those recommendations is barely surprising. It has illustrated again and again the contempt it holds for the parliamentary process in its failure to answer questions on notice until the last minute, or not at all, so it is not surprising that the government failed to respond to the report and is still to do so. The mere fact that it has taken such terrible incidents to spur it to act is shameful. It is time for the minister to stop the talk and take action. The revelations of reported sexual assaults in our aged care homes are unfortunately just the latest in a sector that has been plagued by problems for many years.
The Howard government is still failing when it comes to delivering aged care beds. There is a shortage of almost 10,000 beds across the country. Waiting lists, particularly for high-care places, are growing. When we look at the issue of aged care, what is at the core of the system? Our elderly deserve the right to an efficient, safe, and high-level quality of care should living in their own homes become too much for them. The government has a responsibility to ensure that this service is available to all who need it, while the community has a right to know and be confident that their loved ones are being properly cared for by qualified staff.
The problem facing aged care is not a small one. To put it into perspective, it is projected that spending on aged care will more than double in the next 40 years. It is also projected that the number of Australians requiring high-care residential aged care will increase from fewer than 100,000 in 2003 to 337,000 in those 40 years. The size of the challenge is phenomenal. But is the government doing everything it can to prepare for that challenge? The answer is clearly no.
A testament to the Howard government’s failure in aged care is evident in my home state of Tasmania. It was Kevin Andrews, who was the then Minister for Ageing, way back in 2003, who worked with the Tasmanian Minister for Health and Human Services, David Llewellyn, and the Local Government Association of Tasmania. Mr Andrews was the first to announce a tripartite agreement between the federal, state and local governments in Tasmania to work together to improve aged care services. But, unfortunately, it seems that is about all that the minister did. The tripartite agreement was supposed to promote and further aged care in Tasmania. The Tasmanian government, along with the Local Government Association of Tasmania, has been and remains committed to the tripartite agreement. Both the Tasmanian government and the Local Government Association of Tasmania have signed-off on the agreement and it is presumably now with Senator Santoro awaiting the same treatment.
In his media release announcing the agreement, dated 20 August 2003, Mr Andrews stated:
The aim is to improve aged care services for older Tasmanians by three levels of government working together ... This is a major step forward in cooperation between government for the benefit of older Tasmanians particularly, but the whole Tasmanian community.
The failure so far to progress the agreement sadly seems to sum up the Howard government’s approach to aged care. The advice I have is that, since the recent state election—and I take the opportunity to congratulate Premier Lennon and his team on the wonderful result—the Tasmanian government has contacted the Department of Health and Ageing and remains committed to the agreement. I urge Senator Santoro to expedite the signing of this agreement so that older Tasmanians can begin to benefit from a more streamlined approach to delivery of aged care services across the state.
Coming back to the package of bills that we are looking at today, these bills will ensure that, in the event that a nursing home was to become insolvent, the Commonwealth will step in and ensure that accommodation deposits are refunded to the residents or the families of residents. Of course, this is a welcome change that has been long overdue and it is one which Labor supports. However, the burden is now on Senator Santoro to reverse the years of Howard government neglect of aged care. Senator Santoro faces the challenge of fixing the shortage of beds, cutting waiting times, guaranteeing our aged care centres are safe and efficient, and ensuring that those requiring high care places are not forced to stay in hospital acute care beds. The bills we are currently looking at will serve to assure our elderly that their accommodation bonds are protected. But what reassurance is it for people to know that their money is safe while wondering at the same time whether the same is true of them?
I rise to speak to the Aged Care (Bond Security) Bill 2005, the Aged Care (Bond Security) Levy Bill 2005 and the Aged Care Amendment (2005 Measures No. 1) Bill 2005. Labor supports these bills but is underwhelmed by the Howard government’s approach to dealing with the very real and growing problems in the aged care sector.
The Aged Care (Bond Security) Bill 2005 and cognate bills, when enacted, will create a process through which, in the unfortunate event that a nursing home were to become insolvent, the Commonwealth would step in and ensure that the accommodation deposits were refunded to residents and their families. While this package of bills will provide greater security for those deposits and picks up one of the recommendations of the Hogan report on aged care, it fails to address the rest. However, the one recommendation these bills do address, recommendation 9, covers an issue that is not the most pressing area of concern. As far as I know, there has not been one single instance of a bond not being repaid due to bankruptcy or insolvency of an aged care service provider. It is prudent that we act to close off the possibility of someone losing a bond at some time in the future, but with these bills the Howard government has shown that it is not serious about addressing more immediate problems, like the shortages of aged care beds, regional distortions in the allocation of aged care beds and growing waiting lists.
You might well ask why the government has ignored the more substantial recommendations of the Hogan review and has chosen instead to solve a problem that does not yet exist. It is because it gives government backbenchers the opportunity to trot out some key lines in a speech to make it appear as though these bills address the real and growing problems in the aged care sector. They do not. On 8 February 2006, Mr Stuart Henry, the marginal member for Hasluck, made a very enthusiastic speech on these bills in the other place. In that speech, Mr Henry describes these bills as ‘a striking example of the Howard government’s commitment to the welfare and dignity of senior Australians’. Mr Henry went on to trot out a range of government key lines—straight from the government media office script—such as:
This new legislation demonstrates the Howard government’s commitment to provide Australians with a world-class aged care system.
He also said:
Providing high quality, affordable and accessible services which meet the individual needs and choices—
and blah blah blah—I am sure you get the idea. You have to give it the member for Hasluck. He is trying his hardest to make these very meagre reforms sound impressive. I suggest that the reason he is being so over the top in his praise of these bills is that he is embarrassed by the Howard government’s continued inaction to address the real problems in the aged care sector.
If government senators will not take my word for it, they might be interested in what their former leader, Mr John Hewson, had to say. In an article in the Australian Financial Review on 20 January 2006, Mr Hewson wrote:
... commonwealth/state financial relations and the division of responsibilities is the single most festering sore on our national aspirations and capacities.
Mr Hewson then went on to list a range of key structural expenditure issues which he believes are consistently ignored by the Howard government before writing:
... aged care is a significantly bigger issue that the government cannot afford to keep avoiding. The Hogan report should not be left on the shelf.
So, according to the Liberal Party’s former leader, Mr John Hewson, aged care is a festering sore on our national aspirations. That might have been a more accurate key line for the member for Hasluck’s speech, but the truth rarely makes for good propaganda.
If we look at the first recommendation of the Hogan report, we can see why Mr Hewson says the Howard government has left it on the shelf. Recommendation 1 calls on the Howard government to come good on its 2001 commitment to provide 108 places for every 1,000 Australians over the age of 70. The failure to provide an adequate number of residential aged care beds is a continuing indictment of the Howard government’s inability to address the problems in the aged care sector.
In the last full year of the Labor government in 1995, there were 92 residential aged care beds for every 1,000 Australians aged over 70 years. The Howard government immediately lowered the standard and set itself a benchmark of providing only 90 residential aged care beds for every 1,000 Australians aged over 70 years. Yet, after 10 long years of Howard government mismanagement, there were only 85 residential aged care beds for every 1,000 Australians aged over 70 years by June 2005. This is a shortfall of over 9,000 beds.
Instead of working to meet its own lowered target, the Howard government is going backwards. On top of that, there are now over 20,000 phantom beds in the system for which residential aged care places have been allocated but no beds have been built. Is this a demonstration of the world-class system the member for Hasluck would have us believe the Howard government is committed to delivering? I think not.
In my home state of Western Australia, there is a shortage of some 787 beds against the Howard government’s lowered benchmark of 90 beds per 1,000. This is unacceptable. But the reason the Howard government thinks it can get away with this continued failure is that the Western Australian state government is forced to pick up the Howard government’s slack. On any given day there are over 100 Western Australians stuck in the state health system’s metropolitan hospitals, with a further 120 Western Australians stuck in rural hospitals who have been assessed as requiring a residential aged care bed but for whom no beds are available. The Western Australian state government has to divert considerable resources to provide care for people who are being forced to wait too long for a Commonwealth funded aged care bed to become available.
In 2005-06, the Western Australian state government budgeted $49 million of state government money to provide its care awaiting placement program in metropolitan hospitals and beds for nursing home type patients in rural hospitals where there is no nursing home in the area. The evidence shows that waiting times are getting worse. When the Howard government came to power in 1996, the average waiting time was less than a month. By 2001, the average waiting time had blown out to 55 days. After 10 years of Howard government mismanagement, the Productivity Commission reported that, by 2005, 30 per cent of people assessed as requiring a residential aged care bed were being forced to wait more than three months for a bed to become available. The cost of these waiting times created by the lack of Commonwealth provided aged care beds in my home state is being borne by the Western Australian taxpayers and, in turn, causing shortages in the number of hospital beds available to Western Australians. Is this a demonstration of the accessible services the member for Hasluck would have us believe the Howard government is committed to delivering? I think not.
While the number of residential aged care beds has decreased under the Howard government, the average cost of a bond has increased dramatically. When the Howard government came to office in 1996, the average cost of a new bond was only $26,000. After 10 years, the average cost of a new bond has increased to over $127,000. That is a massive increase and represents a significant proportion of the life savings of the average Australian. Is this a demonstration of the affordable aged care system the member for Hasluck would have us believe the Howard government is committed to delivering? I think not.
In May 2005, the member for Hasluck, Mr Stuart Henry, published an article in his community newsletter titled ‘Federal minister on visit to Amaroo retirement village’. In the article Mr Henry said that he wanted the minister to visit Amaroo Village because he had been impressed by the sense of community he had found amongst the residents and by the quality of the facilities provided. Senator McLucas, Labor’s shadow minister for ageing, disabilities and carers, and I have also been to Amaroo Village. We were also impressed by the sense of community and quality of care provided there. Amaroo Village is a credit to the dedicated staff and volunteers who work there. All the residents we spoke to were glowing in their praise of the care they received.
Mr Henry’s article did not mention that there is a two-year waiting list for a bed in Amaroo Village. Mr Henry’s article did not mention that, with a turnover of fewer than 10 residents a year, there is little prospect of the waiting list shortening in the near future. Mr Henry also failed to mention that the management of Amaroo Village had estimated that the value of the labour contributed by volunteers is over $750,000 a year, without which the centre would not be able to afford to operate. If Mr Henry’s idea of a world-class aged care system is one with a two-year waiting list kept afloat by the unpaid work of volunteers then he is doing his constituents a disservice. After 10 long years, the legacy of the Howard government has been fewer beds, longer waitlists and higher bonds. The people of Hasluck, the people of Western Australia and the people of Australia deserve better.
First of all, I would like to thank all senators for their support of the Aged Care (Bond Security) Bill 2005 and related legislation. Right from the word go, I would like to say that it is testimony to the hard work of many people that these bills have been going through the Senate and the lower house in such an orderly and bipartisan manner. It is the hard work of many people, not the least being the Hon. Julie Bishop MP, who preceded me in this role and is now the Minister for Education, Science and Training.
I am also very pleased to have this opportunity to acknowledge the efforts of many others that have been involved in the development of this important legislation. Yesterday, you may recall, Mr Acting Deputy President Watson, that the Senate Community Affairs Legislation Committee, chaired by Senator Gary Humphries, tabled its report on these three bills. I am very pleased to note that, following the committee’s deliberations and consideration of expert evidence, the unanimous committee report recommended the bills be passed without amendment. I think that that is a tribute to the very good orderly and bipartisan processes in this place that are not recognised often enough.
I will also take the opportunity to comment on a few matters that have been raised by senators in this debate. In particular, I want to respond to Senator McLucas, who acts as the shadow minister for my area of portfolio responsibility in this place. I have not yet seen Senator McLucas’s proposed amendment in terms of the abuse issue but I hope that it is coming—it has not been circulated yet. I will not talk about the issues in relation to abuse, but I want to talk at length in response to some of the more political points that she made and which were unrelated to this bill. I will refrain from taking up too much of my 20 minutes, which I intend to use, in replying to Senator McLucas, other opposition senators and Senator Humphries.
First of all, Senator McLucas—through you, Mr Acting Deputy President—I would like to welcome the Labor Party’s support for the bills. Unfortunately, that support has been marred by some of the political comments that have been made by senators opposite. I wish that sometimes people could be gracious in their support for something like this. Let us have questions without notice and questions on notice. I notice that yesterday I was not asked a question. That is how front of mind this issue was yesterday. I hope that I get two or three questions from you today on all the issues that you have expressed concern about. I would like to invite Senator McLucas to ask me questions without notice, particularly the political questions which have marred the debate that we are having.
Senator McLucas expressed some concern relating to my department’s response to her queries during the Senate committee hearing. In particular, she asked who was liable to pay a levy in the event of a default. I am sorry that Senator McLucas considered that there was some inconsistency in the advice provided by the department. However, it is my firm belief that the Hansard and my department’s submissions reflect a very consistent position. When appearing before the Senate inquiry, my department made it clear that newcomers to the industry are not liable—I stress that they are not liable—for a levy for an event that occurred before they began operating in the sector.
This is also the position that was explained in the department’s supplementary submission to the inquiry. The submission makes it clear that only those providers who hold bond balances 10 days before the default event declaration and who are still operational when the levy is imposed will be liable to pay. It was made clear that it is not the government’s intent that new entrants will have to pay as a result of an event that occurred prior to their entering the sector. The key principle of the new guarantee system is that providers holding bonds at the time of the default event share the risk and the cost of that event, as they have benefited from the guarantee of their bond liabilities up to that point. The department’s submission provided further clarification of who was considered to be a newcomer to the industry. I believe that this information has provided some reassurance to Senator McLucas, and for that I am grateful to Senator McLucas.
The submission makes it clear that when the ownership of a corporation that is an approved provider changes hands there is no change to the legal entity. As such, a corporation is not a newcomer to the industry. If a corporation holds bonds 10 days before the day on which a default event declaration is made and continues to be an approved provider on the day a levy is imposed, the corporation will be liable to pay the levy, even if in the intervening period the corporation changes hands. The corporation in this situation would not escape any eventual liability to pay a levy. I believe this approach is entirely reasonable and, based on Senator McLucas’s comments last night, I understand that she has accepted the appropriateness of this approach as reflected in the legislation.
Contrary to Senator McLucas’s and Senator Polley’s comments on aged care places, the government has every right to be proud of its aged care achievements over the last 10 years and expects to meet its 2001 commitment to provide 200,000 operational—200,000 operational—aged care places by June 2006. I repeated that for the sake of Hansard because I wish to have recorded my emphasis of that achievement. At the end of 2005 there were over 197,000 residential aged care places, with more coming online all the time. In partnership with the sector, the government has created and planned for the release of a record number of new aged care places—over 95,200 new places since 1996. That is a matter of technical and historical record.
We are also on track with our ratio of places to people. In 2004 the Australian government made a commitment to increase the ratio from 100 aged care places per 100,000 people aged 70 or over to 108 aged care places per 1,000 people aged 70 or older. I respectfully submit to Senator McLucas that we are on track with this. In 2005, 12,093 places were made available, and there will be a further 14,559 places in 2006 and 2007. The 2005 increment alone required an additional public commitment of $296 million, which is certainly not an insubstantial amount. This is designed to address diverse demand in the aged care marketplace. Consequently, this funding is directed towards 5,274 residential care places, 4,352 community aged care packages, 915 extended aged care at home packages and 667 new specialist dementia places. The government have allocated a further 885 places for multipurpose services, innovative pilots and transition care, which will assist the integration between health and aged care services. These will be further augmented by over 1,400 places over the next two years.
The allocation of places is a critical thing to get right. Places must be positioned where they are needed and allocated to those best able to provide sustainable quality care into the future. There must be confidence across the sector that we will get this process right. I have already signalled to the sector that I am willing to listen to any concerns they have about transparency or accountability for the allocation of places and to act to address legitimate deficiencies. In many of the industry forums that I have already addressed and taken feedback from I am on the record as saying that I am aware of some complaints from individual providers and from the sector generally. I have asked them to provide me with specific details on where they think the system may have lapsed. I have promised them that we will get specific debriefings in relation to their concerns. I have told them that if they are not happy I will take a personal interest. If Senator McLucas or any other senator has any specific instances of where dissatisfaction exists with the allocation process, I am very—
Just make it more transparent.
I hear what Senator McLucas says. She is aware, through you, Mr Acting Deputy President, that commercial-in-confidence situations apply to the process. To the maximum possible extent that the process can be transparent, of course this government is committed to that principle.
Around the country, people have told me that they would like support to live in their own homes for as long as practically possible, and the government has listened and responded. We have increased funding to home and community care services—up 103 per cent since 1995-96—and community aged care packages, which are up more than 1,012 per cent since 1995-96, as well as introducing the extended aged care at home packages, equivalent to residential nursing home care, to deliver high care to older Australians in their own homes.
As members opposite have alluded to, on 14 March 2006 I convened a meeting of the Aged Care Advisory Committee, which included representatives from across the industry. As I said, I will speak a lot more about the political points that Senator McLucas and others have raised when we debate their amendment in the committee stage. Basically, the legislation that we are debating focuses on the three principles that guide my activities and those of the government in terms of the provision of aged care. Those three principles are choice, quality and financial sustainability.
Choice means three things: focusing on individual needs and providing the care when and where it is needed; giving residents’ families, friends and carers a greater voice in the system; and adopting a flexible approach to meeting personal needs—in other words, to continue the transition away from a system in which the government pays providers for the kinds of services that they want to provide to one in which the government pays providers for the kinds of services that individual service users want.
The bills before parliament reflect this principle. By establishing a cast-iron guarantee that every resident that pays an accommodation bond will have the bond returned to them in the event that their provider becomes bankrupt or insolvent, the government is clearly focusing on the needs of the resident. The timely repayment of what may be a person’s life savings without question or unnecessary delay will remove worry from residents and their families. Without this new government guarantee, a resident would continue to rank as an unsecured creditor to an insolvent or bankrupt provider. People may have to wait months or even years to have their bond balance repaid and still not be sure of recovering all of the money owed to them.
The new system set out in the bills also gives residents and their families a greater voice in the system. New prudential standards to be established under the measures bill will give residents and their representatives access to up-to-date information relevant to the financial standing of the home in which the resident lives. Access to information empowers residents and their families to ask questions and make informed choices. I am proud that these new measures will enable residents to make better judgments about the financial viability of the provider.
Quality of care is the second of the three principles that I just mentioned. Quality is an essential aspect of aged care provision. In my view, the high road to improved quality is the road of competition and innovation, with regulation playing a very important supporting role. One of my predecessors, the Hon. Bronwyn Bishop MP, was passionate about improving the quality of care given to residents in aged care services. Mrs Bishop, as minister for aged care, oversaw the improvements to the responsiveness of the aged care accreditation agency and expanded the complaints resolution scheme.
The new regulatory arrangements set out in these three bills will further improve quality by assisting homes to manage their financial affairs and their ability to provide care into the future. We have worked very closely with industry to ensure the nature and degree of regulation is reasonable. I would like to acknowledge the residential aged care industry groups for their cooperation and assistance in the development of this legislation. In particular, Greg Mundy from Aged and Community Services Australia, Rod Young from the Aged Care Association of Australia and Mr Richard Gray from Catholic Health Australia have worked closely with government to ensure that this legislation meets the needs of both residents and industry.
Returning to the three principles for aged care, the third principle—financial sustainability—is closely linked to the principle of quality. The residential care system in Australia must be affordable to taxpayers, to service users and to providers. This requires a focus on productivity and efficiency so that the cost of providing world-class and innovative care to our elderly can be met. As Minister for Ageing, the Hon. Kevin Andrews MP understood this implicitly and instigated a number of strategic reviews of the system. I commend Minister Andrews particularly for his foresight in initiating the paperwork review, which has so well informed our current work on developing a more streamlined and efficient funding model.
I just want to particularly mention my predecessors Julie Bishop, Bronwyn Bishop and Kevin Andrews, because they did so much pioneering work in this area for which these days I have the privilege of enjoying ministerial responsibility. I heard those ministers invariably criticised in contributions by senators opposite, but they did much work to bring the aged care system of this country into the 21st century, which it certainly was not in when the Labor Party relinquished office in 1996.
The new prudential regulations to be made under the measures bill before the Senate also support the objective of financial sustainability by minimising the cost of industry and by focusing on improving the efficiency and viability of industry. I am acutely aware that the ongoing delivery of quality care is dependent on a financial, robust and vibrant industry. While the care and welfare of residents is paramount in every provider’s mind, each provider must also be conscious of the importance of running their business in a financially sustainable way. Good accounting practices, strong governance, risk assessment and management processes, and clear and up-to-date records and systems should be the backbone of any soundly run business. This point was strongly made by Professor Hogan in his excellent report Review of pricing arrangements in residential aged care, which has contributed significantly to the policy underpinning this new legislation for government thinking on longer term aged care reform. I am grateful to Professor Hogan for his significant contribution.
Senator McLucas interjecting—
While good business practices are critical, it is not, however, the government’s intention that the government run the business of each provider for them. Nor will the government bear the risk of or responsibility for market success or failure. It is my philosophy that each provider must understand and manage their business themselves. The government will provide the appropriate support and guidance to assist providers, but providers must at the end of the day be responsible for the market success or failure of their own venture. This point was very effectively championed by my predecessor, the Hon. Julie Bishop MP, and was a recurring theme of the government’s response to Professor Hogan’s review. Ms Bishop, through successive federal budgets, secured over $3 billion additional funding for aged care programs, much of which were designed to improve the sustainability and quality of residential aged care in this country and answers very substantially the interjection that was made very quietly by senators opposite a minute or so ago.
The philosophical approach of financial sustainability is an important context for the new prudential standards that will be set by the measures bill before parliament. The liquidity standard, for example, will require providers to develop their own mechanisms to ensure that they have sufficient liquidity to repay bonds as they fall due. Providers will each be required to develop their own liquidity management strategy, cognisant of their individual business risks and operation. The new standard will not abrogate their responsibilities to the government. The strength of prudential arrangements will also reduce the risk of failure and activation of the guarantee scheme, another central component of the legislation before parliament.
My approach to financial sustainability is also reflected in the levy bill. This enables the government to levy all aged care providers who hold bonds to recover any amount paid out to residents by the government which are not recovered from the defaulting provider. The government will have the flexibility to ensure that the structure of the levy does not impact on the financial sustainability of approved providers nor, more importantly, compromise the quality of care being delivered.
Existing protections under the Aged Care Act 1997 have worked well to date, as shown by the fact that there has not been an incident where a resident’s bond balance has not been repaid because of the bankruptcy or insolvency of a provider. The government believes however that these additional protections are timely. The average new bond has increased in value from $26,000 in 1996-96 to $127,600 in 2004-05. Bonds can represent a significant proportion of a resident’s life savings and understandably residents and their families expect secure arrangements for their bonds and the reassurance that their bond balances will be repaid when the resident leaves home.
This legislation strikes a balance between the added security for residents that is provided by the strengthening of the arrangements and the financial impact of the new arrangements on the sector’s viability and its standing with the capital markets, including its ability to construct and maintain aged care homes. The new arrangements complement the $877.8 million conditional adjustment payment which was implemented in 2004. These government initiatives will assist the aged care industry to become more financially mature and more sustainable. The introduction of these precedents or these protections into the act demonstrates the coalition government’s commitment to a world-class system of aged care that provides high-quality, affordable and accessible services to meet the individual needs and choices of older Australians.
In closing, I want to acknowledge the individual approved providers operating aged care services across the country. I know that they share my commitment to choice, quality and financial sustainability. They have told me that repeatedly during the months I have been minister. I know that many services have made substantial financial commitments to upgrading their existing buildings, a serious investment in the future of the aged care industry in this country. The diversification that many providers are embarking upon, such as branching into community services, is an example of preparedness to provide consumers with greater choice and flexibility in their care options. In terms of quality, I acknowledge the continued high level of compliance across the sector with our accreditation standards.
I believe in the sector’s clear commitment to continuous improvement and its dedication to provide high standards of care now and into the future for the good of the Australian community. I thank all of those who have been involved in the development of this legislation and acknowledge the broad support of senators within this chamber, including the support of the opposition.
Question negatived.
Original question agreed to.
Bills read a second time.
Aged Care Amendment (2005 Measures No. 1) Bill 2005
Bills—by leave—taken as a whole.
I move amendment R(1) on sheet 4875 revised that was circulated in the name of Senator Allison:
R(1) Page 20, (after line 11), at the end of the bill, add:
Schedule 8—Protection of information
Aged Care Act 1997
1 After section 86-8
Insert:
86-8A Whistleblowing disclosure that qualifies for protection
(1) Despite any other provision of this Act, a person may disclose protected information in accordance with this section.
(2) If a person makes a disclosure that qualifies for protection under this Part:
(a) the person is not subject to any civil or criminal liability for making the disclosure; and
(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.
Note: This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.
(3) Without limiting subsection (2):
(a) the person has qualified privilege (see subsection (4)) in respect of the disclosure; and
(b) a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.
(4) For the purpose of paragraph (3)(a), qualified privilege, in respect of the disclosure, means that the person:
(a) has qualified privilege in proceedings for defamation; and
(b) is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;
in respect of the disclosure.
(5) For the purpose of paragraph (4)(b), malice includes ill-will to the person concerned or any other improper motive.
(6) This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or an action, for defamation.
86-8B Protection for whistleblowers
For the avoidance of doubt, section 16 of the Public Service Act 1999 applies to an Australian Public Service employee performing functions in accordance with this Act.
86-8C Disclosures qualifying for protection under this Part
A disclosure of information by a person (the discloser) qualifies for protection under this Part if:
(a) the discloser is:
(i) an officer of a company or aged care service provider; or
(ii) an employee of a company or aged care service provider; or
(iii) a person who has a contract for the supply of services or goods to a company or aged care service provider; or
(iv) an employee of a person who has a contract for the supply of services or goods to a company or aged care service provider; and
(b) the disclosure is made to:
(i) ASIC; or
(ii) the company’s auditor or a member of an audit team conducting an audit of the company or aged care service provider; or
(iii) a director, secretary or senior manager of the company or aged care service provider; or
(iv) a person authorised by the company or aged care service provider to receive disclosures of that kind; or
(v) the Aged Care Standards and Accreditation Agency; and
(vi) the Aged Care Complaints Revolution scheme.
(c) the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and
(d) the discloser has reasonable grounds to suspect that the information indicates that:
(i) the company or aged care service provider has, or may have, contravened a provision of the Corporations legislation or the Aged Care Act 1997; or
(ii) an officer or employee of the company or aged care service provider has, or may have, contravened a provision of the Corporations legislation or the Aged Care Act 1997; and
(e)the discloser makes the disclosure in good faith.
This amendment relates to the area of protection of information and whistleblower disclosures. Close observers would note that the amendment is in many ways identical to amendments that have been moved to other legislation. It is simply a standard amendment the Democrats are attempting to use to try and improve whistleblower provisions in federal legislation. The arguments have been made a number of times before, and the amendment would be appropriate for the Aged Care Amendment (2005 Measures No. 1) Bill 2005.
The Labor Party will be supporting this amendment. This amendment goes to the protection of whistleblowers—those people who have a view that something that they have seen is untoward or inappropriate. The Labor Party, along with coalition members of the Senate Community Affairs References Committee, recommended in its report—which, I say again, was tabled 10 months ago—that the government undertake an analysis of the suitability of whistleblower protection. This amendment puts into action protection of employment for people who expose something that they think is untoward.
We heard during the last few weeks that one of the horrific events, the abuse of an elderly person, was apparently witnessed by a person and that that person did not report it. It is almost indescribable how offensive that is, but you have to ask why that person did not respond in the absolutely predictable human way and report to somebody that they had witnessed something inappropriate.
This amendment in itself will not prevent such events, unless that person was worried about their job or the potential for a defamation action to follow. What we really need to do in those circumstances is to look to the culture of the facility that allows that to occur. This amendment does go some way to protecting people who disclose that they have seen something untoward that should be reported. The other concern that I have is that the media have reported that someone who did blow the whistle about another event—someone who did report to the person in charge of the facility that they had witnessed something untoward—was sacked. That was one of those cases of shooting the messenger.
This is a sound amendment. Hopefully, the government will support it and, if they do not, I encourage them to explain why it is an inappropriate measure at this point. If the minister is saying that this is not an appropriate measure, what is the minister going to do about ensuring that people who come forward with honestly held concerns will be protected in the transfer of that information from either defamation or loss of their position with the aged care facility? The minister knows that this has happened. The Senate Community Affairs References Committee report also made a recommendation that asked the government what it was going to do about retribution and intimidation. We had strong evidence through the committee process that these things are occurring not only to staff of residential aged care facilities but also to residents and their families.
It is incumbent upon this government to take the committee’s 51 recommendations seriously. It was a unanimous report and those recommendations were made in good faith. We now have the situation where the government is piecemeal picking them off—slowly, slowly—because it has been forced to by these extraordinary and abhorrent revelations that we have heard about over the last month. Let’s do something in a systematic way. Let’s get the response to our report. Let’s find out what the government intends to do. Let’s get on with the job of restoring confidence in residential aged care because it has been sorely threatened by what we have heard over the last month. The Labor Party will be supporting this amendment and we look forward to the government’s support as well.
Senator McLucas was right when she said that there have been cases where people have observed some heinous events in terms of abuse within aged care facilities and that those cases have caused a lot of public concern over recent months. She is right when she said that examples have recently been reported in the media. In fact, I was the person who made public one such example. I made it very public in a major speech I made to the Aged Care Queensland conference. I did that because I wanted to place the industry on notice; that these things were happening within the industry. Senator McLucas and others would appreciate that that attracted a lot of media attention. I wanted people within the industry to appreciate that that particular issue had come to my attention, and the last thing I wanted to do was to keep the knowledge to myself. By being very open and totally up-front, I think we can all contribute to reinforcing the very strong culture of disclosure and mandatory reporting that already exists within the industry.
The vast majority of people who observe abuse of any sort within an aged care facility report it. I am glad that Senator McLucas, towards the end of her remarks, pulled back from saying that there was a crisis of confidence within the industry or particularly within the minds of residents and relatives. She talked about not wanting to threaten the confidence of people who are involved in the industry, and I commend her for that. By using the words ‘not wanting to threaten the confidence’, she acknowledges what I have been at great pains to do in this place and outside this place—that is, to tell the public that it is my belief that the vast majority of residents and their relatives, the carers, the providers and anybody else involved in the industry believe that the vast majority of people operating in the industry and, in particular, caring for our elderly people in aged care facilities are caring for them in a way that is exemplary. As a result of that, there is much confidence in the industry. As a result of that very dedicated effort and commitment to looking after our aged and frail residents, there is a strong level of confidence. I am never going to stop saying that.
I acknowledge that some bad things have happened, and never at any stage have I sought to hide any knowledge of bad things that have happened—I have sought to answer questions as truthfully as I can, given my level of knowledge at the time I am asked the questions. However, there are some very strong privacy issues involved. The aged care legislation and other acts that impact on the Aged Care Act 1997 have some very strong privacy provisions ingrained in them that prevent the government and other people from impinging in a dramatic way on the privacy of people that are being looked after in our aged care facilities.
I certainly assure the Senate that, whenever I can, I will be totally honest—and that will be in the vast majority of cases subject to, as I said, privacy provisions. The Senate has my assurance that I will always be up-front. I think we need to adopt that approach. If any government, any minister or anybody within the sector seeks to hide wrongdoing, I think that is when confidence will be severely affected. I can assure Senator McLucas that I will be totally up-front with her.
Senator McLucas asked me to talk about the amendment and she asked some very reasonable questions: if you are not supporting it, why aren’t you supporting it and what are you doing? I now wish to address those reasonable questions in a formal way. We have before us an amendment from the Democrats which seeks to make changes to division 86 of the Aged Care Act 1997. That particular division deals with protected information. The amendment attempts to provide whistleblowers with broad-ranging protection. However, these particular measures are piecemeal and, with respect, I think they are ill-considered in the context of the broader aged care system that these bills specifically provide for. It is generally considered that an effective whistleblower regime should, at the very minimum, address four main issues: what information may be disclosed under the legislation, who may make disclosures, to whom disclosures may be made and, lastly, the process for dealing with a disclosure once one has been made.
I am concerned that on each of these points the Democrats amendment appears to again, with respect, miss the mark. In terms of the information that may be disclosed, this amendment is cast extremely widely and the technical advice that I have is that it allows any protected information as defined in the Aged Care Act 1997 to be disclosed. This includes personal information or opinion, whether true or not, about any individual, including residents. This raises a number of concerns, not least of which is the fact that a person could disclose highly personal information about a resident, including information such as medical records and financial information, to a very wide range of individuals and organisations. The individuals to whom disclosure may be made include any company auditor, regardless of whether they have any connection at all with an aged care service, and any person who has been authorised by an aged care service to receive disclosures.
In an extreme example, this could mean that personal medical information about a resident could be disclosed to the local media merely because the aged care service authorised the media outlet to receive this information. I acknowledge that it is an extreme example, but I think sometimes extreme examples, by their very clear definition, are good examples to put forward.
Under the Aged Care Act, protected information may be disclosed to a court, yet even in this case there must be the consent of the person to whom the information relates. No equivalent protection exists in the Democrats amendment, and that is certainly one of its major deficiencies. The amendment also fails to describe what is to be done when a disclosure has been made. For example, the legislation enables disclosures to be made to company auditors, yet company auditors have no power or responsibility to investigate possible breaches of the Aged Care Act. Overall, the amendment appears to expose residents to the risk of their personal information being disclosed, yet, even if a disclosure is made in good faith in an attempt to address a problem, there is no mechanism or process to deal with any such problem.
In contrast, as honourable senators have alluded to in this debate, I have already announced that the government is constructing a package of reforms to further strengthen our already robust aged care system. At the Prime Minister’s invitation, I will shortly seek cabinet agreement to measures to reduce the incidence of abuse of elderly people within our aged care facilities. I have already, as Senator McLucas and other senators in this place know, widely consulted the stakeholders, including some of the people who have suffered the abuse and their families, providers of aged care services and the Aged Care Advisory Committee. I will also soon be consulting with my state and territory counterparts. That meeting is arranged for 10 April, and so far all states and territories, with the exception of Tasmania and the Northern Territory, have indicated that they will be attending. I certainly can assure Senator McLucas and Senator Bartlett on behalf of the Democrats that I will be placing the issue of whistleblowers legislation well and truly on the agenda for some discussion, and we will see what comes out of that.
As I previously publicly announced, my key expert advisory committee has expressed general support for a range of measures. At this point I want to address briefly what seems to be emerging as the main criticism from senators opposite about the structure or the membership of that committee. The big point that is being made is that somehow that committee is not as good as it could be because advocacy groups are not represented. I want to stress very deliberately again today what I have stressed at aged care organisational conferences and in other forums that I have addressed. That is that, I respectfully suggest to all senators in this place, every member on that committee—whether they be a representative of the providers, nurses unions, doctors, pharmacists or carers—is an advocate, and I use that word very deliberately, for the welfare of the aged and the frail within our aged care facilities. Senator McLucas and other senators, when they criticise the make-up of that committee because of that perceived lack of expertise from formal representation of advocacy groups, are saying that they should be represented. But I am saying to Senator McLucas that I think they are all advocates for the aged and frail within our aged care facilities.
The question that I think can legitimately be asked—and, if it has not been asked of me, I will now ask it of myself and answer it—is: how do we get the opinion of the organised advocacy groups within the system, within the current deliberations, on the solutions or some of the measures that should come out of the process that we have undertaken? I have spoken to three of the leaders of the representative groups. I have not spoken extensively to them but I have invited them to provide me with their extensive and formal contributions, and they have done that. There are many pages in combination, and they make many very good points, in my view. A lot of the points that they make are in fact the points that are overwhelmingly coming through not only from the community generally but also from the advisory committee that I convened a few weeks ago.
There are some suggested refinements, some of which I think would be quite useful. At this stage that is only my personal opinion; I still have not gone to cabinet. But some of them will be in the mix and will be considered. I can assure the Senate that over the next three weeks I will be travelling to the cities where these advocacy groups are based and I will personally be making time to meet with them for an hour or so, which will enable them to also provide me with more direct input. I do stress that I personally have received, at my invitation after speaking with the chief advocates, comprehensive formal representations, the content of which is generally very good and is being considered.
I hope that people accept that and do not try to somehow not besmirch but water down the quality and the good reputation of the committee that advises the minister. I am not suggesting that any individual has been attacked as being incompetent or not worthy of being a representative of a particular part of the aged care sector. But I do not want the suggestion that, because there is no formal representative on the committee for the three or four advocacy groups that take an interest in this area of aged care policy, somehow the members of the committee are not advocates, individually or as a whole, for the interests of residents within our aged care facilities or somehow the committee is not as high quality as it could be.
As I have previously and publicly announced, the key expert advisory committee that I have just been referring to has expressed general support for a range of measures. The measures under active consideration include a uniform system of police checks for workers in the aged care industry, an increase in unannounced spot checks for aged care facilities, a review of the current complaints resolution scheme, and enhanced training for all aged care staff in relation to knowledge and awareness of abuse of the elderly and how to deal with complaints. I do not intend to deal in a piecemeal fashion with the important areas of reform that this debate is prompting us to consider. I intend to be as consultative as I have been. I understand the urgency that exists in the minds of the general community, senators opposite, the media and a whole lot of groups in the community. I will be acting expeditiously and the Senate has that assurance from me.
In terms of the amendment, we will not be accepting it. I have previously had discussions along these lines with Senator Allison. She withdrew a similar amendment a little while back for reasons which I thought she understood. I hope that my additional explanation will be of assistance to the Senate and particularly to the Democrats.
The Democrats amendment is based on interesting precedents. They include a reference to section 16 of the Public Service Act, which is the weakest public service whistleblowing provision of all in our nine governments. Nevertheless, it does exist and it is better than nothing. The precedents within the amendment draw on the very good initiative of the Treasurer in introducing whistleblower provisions into the Corporations Law—the first time in Australia’s history that whistleblowing provisions have been introduced for the private sector. The subsequent extension of those provisions to the Workplace Relations Act is also reflected in this amendment. So this amendment actually repeats the government’s words in three acts and which are slightly adjusted for this act.
The government is rejecting not just this amendment but, of course, its own concepts which have been established elsewhere. That is unfortunate. The reason for the Democrats amendment is to show up the government for being resistant to full disclosure. We would design a much stronger whistleblowing regime. Members of the Senate would be aware of my extensive private senator’s bill on public disclosures. Nevertheless, we support there being some provision for whistleblowing.
One of the things that have motivated us is that there is an immense institutionalised pressure on employees to keep quiet and not notify circumstances which they are concerned about. I recognise and acknowledge what the minister is saying and the government’s attempts to much improve the environment for disclosure. It is not as bad as it was, with the institutions in which children were put in the last century, when over 500,000 children were in institutions and the staff of those institutions did not disclose the mental, physical, emotional and sexual abuse of those children, which was widespread. Indeed, when children escaped and told the police or were sent to hospital and told doctors and nurses their stories, they were just ignored and sent back to the institutions for another round of sexual or physical abuse by the people who ran those institutions. The modern environment is not quite as bad as that, but you still have to provide the mechanisms and motivations for whistleblowing.
When the government rejects its very own legislative words, which it has established in other pieces of legislation, what I read is not a willingness to maximise disclosure but a resistance to ensure that proper and full disclosure occurs. So I am disappointed that the government has rejected this amendment. I will be urging my colleagues and the Labor opposition to keep pushing at the issue of whistleblowing in this sector, where people are vulnerable, disadvantaged and at risk, and where the nature of their age and circumstances means that they need maximum protection from the staff and authorities. With his obvious keenness to make this portfolio work under his tutelage, I do hope that the minister returns to this issue and in fact does provide for proper whistleblowing provisions within the aged care sector.
I again wish to acknowledge the concerns expressed by senators, including Senator Murray, which have led to their putting forward and supporting this amendment which seeks to implement whistleblower protection. They are concerns that have come to my knowledge in several situations and about which I have spoken publicly. May I say to Senator Murray in brief response to his words of a minute or so ago that I have in turn outlined the government concerns about the amendment that is before us. That is the technical advice that I have received, Senator Murray, and mainly for that reason we will not be supporting the amendment. But, on a more positive note for the Democrats and the Labor senators opposite, I reiterate the government’s intention to quickly and seriously address the concerns that have led to this amendment being put forward and I reiterate my very strong undertaking there.
Since the minister says he is acting on advice, perhaps he could inform us whether those advising him were even aware that these are in fact government legislative words coming from government legislation.
I will again say to Senator Murray that I do accept that the words are based on precedents in other legislation. However, Senator Murray with his great experience in this place would accept, I think, that it is not wise to pick up sections from one regulatory framework and seek to insert them into another quite different legislative scheme. The Aged Care Act is not, I would suggest with respect, analogous to the legislation from which the sections are drawn. Again, while I appreciate that the amendment draws on precedent, I still consider the amendment to be poorly adapted to the Aged Care Act for the reasons which I outlined. Again I note my concerns with the proposed amendment and the technical problems in the context of the Aged Care Act. However, I reiterate that we will be looking at this issue further in consultation with stakeholders and I believe that this will ensure that not just any precedent is used but the right solution is found—and again I am more than happy to make that very strong commitment.
Question negatived.
Bills agreed to.
Bills reported without amendment; report adopted.
I move:
That these bills be now read a third time.
Question agreed to.
Bills read a third time.
I move:
That intervening business be postponed till after consideration of government business order of the day No. 4 (Financial Framework Legislation Amendment Bill (No. 2) 2005).
Question agreed to.
Consideration resumed from 1 March.
As you pointed out, Mr Chairman, the amendment is co-sponsored by the Australian Democrats and the Australian Labor Party. In my second reading contribution on the Financial Framework Legislation Amendment Bill (No. 2) 2005, I did outline the findings of the Australian National Audit Office in Audit report No. 28—Management of net appropriations and the serious deficiencies that were highlighted in respect of special appropriations. The amendment I have co-sponsored on behalf of the Australian Labor Party with the Australian Democrats requires a register of special appropriations to be tabled in the house of parliament not later than 31 August. The amendment lists the particular appropriations that we believe, for the public record, should be made available and detailed. I would urge the Senate to support a very wise amendment that enhances accountability and openness with respect to the appropriations that the parliament in this case does not deal with.
Question negatived.
Bill agreed to.
Bill reported without amendment; report adopted.
I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
My question is to Senator Abetz, representing the Minister for Employment and Workplace Relations. Is the minister aware of comments from the minister for workplace relations on Lateline last night that anyone working in a business with fewer than 100 employees can be sacked simply because the boss does not like them? Under the government’s new system, wouldn’t the employee have no entitlement to redundancy pay and no right to appeal the termination? What is to stop an employer simply sacking someone and then offering them the same job on a significantly lower wage? Can the minister explain how this complete loss of employment security benefits the four million Australians working in small businesses, many of whom are struggling to pay off mortgages and raise children?
To assist the honourable senator and those who may be listening to the question that has been asked, I indicate that the minister said, ‘You can sack somebody provided it is not unlawful.’ Then he went on to make the other comment. So there is a legislative protection against unlawful sacking, which those opposite continually refuse to acknowledge. They refuse to acknowledge that important fact because they are concerned about running a campaign of political opportunism against Work Choices rather than engaging in the exercise of nation building that we are.
For the past decade, we have been engaged in the exercise of nation building and have seen more and more of our fellow Australians getting jobs and higher wages. What we are doing as a government is increasing and ramping that up even further so that more of our fellow Australians can get employment whilst being protected against unlawful dismissals. The reasons for unlawful dismissal include sex, race and sexual preference. Interestingly enough, I think one of the reasons it would be unlawful is if you happen to belong or not to belong to a particular trade union. But we know that is the offence that many people in the Labor Party get sacked for, because they happen to belong to the wrong trade union and therefore they are disendorsed. Just ask the deputy leader in this place, Senator Conroy, about the unfair dismissal attempts aimed at the member for Hotham and Mr Gavan O’Connor, the member for Corio—
Former.
You are quite right, Senator McGauran.
Opposition senators interjecting—
Order! Senators on my left, shouting across the chamber is disorderly.
Mr Sercombe, the former member for Maribyrnong, was also disendorsed. Most interestingly, when the Labor Party introduced their unfair dismissal law experiment, do you know, Mr President, who the first parliamentarian was who fell foul of that law? Was it a coalition member or senator? No. They know who it was. It was none other than the then member for Bowman, Con Sciacca. What you have is the Labor Party preaching for political opportunism but not practising it themselves with their own staff or their own members and senators, who they regularly seek to disendorse simply because they happen to belong to the wrong trade union or the wrong faction. What the minister said last night on Lateline was very clear, and the unlawful protection guarantee is there for all workers.
Mr President, I ask a supplementary question. We will try again and see whether we can get a straightforward answer from the minister. Can the minister confirm that under the regulations for the industrial changes an employee can be paid below the minimum wage if, over a 12-month period, they are on average paid the minimum rate? Won’t this allow employers with seasonal workloads to significantly cut wages in the off season, which may last six months? How does the government expect these employees, whose living expenses do not vary, to survive on less than the minimum wage?
That sounds like another question to me.
The reason it was another question was that he had to concede ground after I exposed his misrepresentation of the Minister for Employment and Workplace Relations, and that is exactly what the Australian Labor Party do in this place and in public. They assert something. When they are knocked down, they know they can no longer stand their ground. Do you know what they do? They shift ground.
Minister, I remind you of the supplementary question.
In relation to the supplementary question, when they are debunked in relation to one scare campaign, they simply move to the next false assertion. That is exactly what those opposite did in relation to the goods and services tax. It was so evil, according to Mr Beazley, that he was going to roll it back. He now of course fully embraces it. I suggest to those opposite that they fully embrace Work Choices and save themselves the embarrassment. (Time expired)
My question is to the Minister for Immigration and Multicultural Affairs, Senator Vanstone. Will the minister outline to the Senate how the temporary skilled migration program is bringing economic benefits to Australia?
I thank the senator for the question. His state of Western Australia is a very strong user of the temporary skilled migration program. Australia, as we all understand, is in the middle of an economic boom, and that is good news, but unfortunately it does lead to skills shortages. Labor’s approach to these circumstances would be to simply run this boom into the ground, as they have done with every boom that has ever come to Australia when they have been in office.
We all remember that five lousy minutes of economic sunshine generated by the Keating government’s management of the economy. In contrast, this government has produced conditions that have enabled a long-term boom that we are all enjoying. The business long stay visa allows businesses to get people in with the skills they need to make the most of those conditions—not just to survive but to grow and expand while things are going well.
The union movement and individual unions have embarked on a campaign of attacking this particular visa. The shadow immigration spokesperson has gone out and done a bit of dog-whistling by saying, ‘Why are we bringing people from Beijing, Bombay and Beirut?’ If he were up to date, he would say, ‘Manchester, Mumbai, Memphis and Muizenberg.’ That is what he would really say, because the truth of the matter is that 26 per cent of the people who come in under these visas come from the United Kingdom, 10 per cent come from India, six per cent come from the United States, six per cent from South Africa, and so it goes on. So the proper course of action was to mention Manchester, Mumbai, Memphis and Muizenberg. But the shadow spokesperson did not do that, because he was engaging in xenophobic dog-whistling.
There are very positive outcomes from this program. I have been told of a meatworks that, for example, is able to maintain two shifts running. Without being able to maintain those two shifts running, they would have had to lay off Australian workers.
They locked them out! What are you talking about?
Senator Carr! Come to order!
These visas can be used to allow Australian workers to really enjoy the benefits of this boom. A motor trader in central Queensland told us that he was now able to train a number of apprentices because he had experienced mechanics to train them. But the opposition are still not convinced. They still complain. They want strong compliance on this visa—and so do I, incidentally. I do not want the visa ever to be misused. But what are they suggesting? That we go out into the health sector? Do we really think that hospitals are bringing in nurses to undermine Australian conditions? I do not think so. Seven per cent of uptake of this visa is by nurses. With an average salary of $62,000, it does not sound like slave labour to me.
Do the Labor Party want me to go to the cancer institutes that bring people in under this visa and say, ‘I am sorry. The opposition thinks you are undermining Australian working conditions, and you cannot have the specialists that you bring in.’ Or what about the hearing centres that desperately need people? Do we want to tell the Ludwig Institute for Cancer Research that they cannot use the visa? Would Senator Ludwig say that they would be undermining Australian working conditions by using this visa?
Senator George Campbell interjecting—
Senator George Campbell! I will not ask you to come to order again!
It is somewhat ludicrous, isn’t it? Are we to send a compliance team and go and raid St John Ambulance? Why don’t we go and raid St John and say: ‘You terrible people. You are trying to undermine Australian working conditions.’ St John are there at every fete and every celebration, looking after Australians. They are there when there is a car crash and bad news to be communicated. That is where St John are, and they use these visas.
Perhaps we should go to St Vincent de Paul—that well-known bastion of hatred of Australian people. Help me here. What a joke. These visas are used by people like St Vincent de Paul and Barnardos for a very good reason: they allow businesses and charities to bring in the skills they need. (Time expired)
Mr President, I ask a supplementary question. Will the minister specify to the Senate which industries across Australia have benefited the most from this program?
As I indicated earlier, the health sector is a very big user of this system, but I did not get the opportunity to point out that the education sector is also a very big user of this system. The Australian National University, the University of Queensland, the University of Melbourne, Monash University, the University of Sydney and the University of New South Wales all use it. There have been, in fact, 296 nominations for lecturers. We could have a debate about whether the Labor Party think they are unskilled—at an average salary of $58,000—if that is the proposition you want to put, but I would not put that proposition. Or we could have a debate about the mining sector, with an average salary of $89,000.
Who was the biggest user in the last year of this visa? The New South Wales Labor government. Let’s send a compliance team and see if they are rorting the system. Let’s see if the New South Wales government are using this to undermine Australian working conditions. We could go to the Rail Corporation, the Wildlife Information and Rescue Service, the Cancer Institute and the Rural Doctors Network. We could go to every state government and say to them, ‘Do you really want to use this visa, because your federal opposition just do not understand?’ (Time expired)
My question is to Senator Vanstone, the Minister for Immigration and Multicultural Affairs.
Hang on, I’ll get my pearls on!
I refer the minister the answer she gave the Senate yesterday, when she was unable to provide details of two separate allegations of rorted 457 visas at meatworks in South Australia. Now that the minister has had the opportunity to put her pearls on and to obtain advice about these cases, can she update the Senate on the status of these allegations? In particular, can the minister confirm that DIMA advised a union official some two weeks ago that foreign workers at a Murray Bridge meatworks were not engaged in skilled work and were being paid less than they should? If these workers were not engaged in skilled work, isn’t this just confirmation that the visa conditions were not met at the time the visas were issued? Doesn’t this mean that the department has allowed this employer to engage foreign workers in breach of visa conditions at the expense of Australian jobs?
I thank the senator for giving me a moment to pop on the pearls! Starting from a low base, I like to do my best—thanks very much. I believe that two places are being looked at in South Australia. As I indicated yesterday, of course, if an allegation is made, it is going to be investigated. I thought it was a pretty stupid question, actually. Of course, if an allegation is made, it will be investigated.
Senator Chris Evans interjecting—
Senator Evans, come to order.
Mr President—
No, I asked you to come to order. I do not want a lecture. Resume your seat.
I would like to raise a point of order.
When I sit down you can make your point of order.
Mr President, I rise on a point of order about the abuse of question time. I raised this with you yesterday. Ministers are making no attempt to answer the questions. This is a repeat of a question asked of Senator Vanstone yesterday because she was allowed to carry on with a statement and abuse of the shadow minister, which did not relate at all to the question. We then had Senator Abetz’s performance today. Opposition senators will get frustrated and unruly if there is no integrity in question time, and I ask you to ensure the integrity of question time.
He did not seek leave. If Senator Evans wants to make a statement he should seek leave.
Order! Senator Ian Campbell and Senator Evans, come to order! Senator Evans raised a point of order. The minister has had less than 30 seconds to answer the question. She has got three minutes and 27 seconds left on the clock. I remind her of the question and I ask senators to remain silent while she is answering it.
Thank you, Mr President. I can give the senator some information about the meatworks that I think the senator is probably referring to in South Australia. There is one meatworks in particular that is a very reputable Australian employer and, as I am advised, we have no allegations against that meatworks. They employ some 2,100 Australians, including 300 in Naracoorte. Their national workforce includes 13 apprentices and 300 trainees. They have taken on a number of overseas skilled meatworkers to supplement their Australian workforce and transfer skills. The overseas workers enjoy the same wages and conditions as their Australian workforce, many with salaries of over $60,000. As I indicated yesterday—but I did not think that the opposition was listening, as they do not listen to the electorate—all union claims or claims by anybody will be investigated. This visa is critical to maintaining Australia’s skills and to allowing industry not only to survive in a boom but to take real advantage of it to grow exports and create more Australian jobs. So we do not want it misused or undermined any more than anyone else does.
There is one meatworks where there have been allegations made and we are having an independent skills assessment done by the National Meat Industry Advisory Council and they will do an independent and proper assessment. It is an irrelevance that the certifying body for those particular positions was the South Australian government. If a mistake has been made there I will go back to the South Australian Labor government and raise with them whether as a regional certifying body they have done the right thing. I will be saying to the South Australian government: what are you doing certifying these things if Aussies could have the jobs? And do you know what I expect to find? I expect to find that the South Australian government have done their job properly, because we are working very closely with them on immigration issues, unlike with you.
Senator Robert Ray interjecting—
Senator Abetz interjecting—
Order! Senator Ray and Senator Abetz, conversations across the chamber are disorderly.
I am advised that workers at both of these abattoirs are all on AWAs that have been approved by the Employment Advocate and claims of underpayment at one of the abattoirs, of course, are being investigated. The bottom line with respect to this visa is this: it is very important for Australia that businesses can bring in the skills they need when they need them either for a short-term job or for people to come in quickly and then look at permanent migration. It is vitally important. We must make sure that Australian industry has the skills it needs. We will not condone people underpaying the Australian award or undermining these conditions and we will deal with them when that happens.
Mr President, I ask a supplementary question. Will the minister stand by her comments yesterday that companies which do misuse visas will probably ‘lose their right to further sponsor workers’? Can the minister confirm that the Murray Bridge company has been told by DIMA simply to improve the situation? Does this mean that the company will only now be required to train these workers and pay them correctly? Isn’t this yet a further corruption of the integrity of the skilled migration program?
The senator carries an imputation in the question ‘isn’t this yet a further corruption’, implying that there already is one. In the thousands of cases of any issue you will find one that is not as good as another. That will be the case. I do not have a full report on the meatworks at Murray Bridge and I can assure you that we are absolutely determined to ensure that isolated examples that are found are dealt with and dealt with promptly. The senator asked me, in effect, whether we would engage in a practice that might ensure the closure of the meatworks. I would be very reluctant to do that, Senator. (Time expired)
My question is to Senator Abetz, representing the Minister for Employment and Workplace Relations. Will the minister provide the Senate with an update on the implementation of the government’s Work Choices legislation? Will the minister also advise the Senate whether his attention has been drawn to a survey about community views in relation to this legislation?
I thank Senator Fifield for his insightful questions and confirm to the Senate that the sky has not fallen in as a result of Work Choices being implemented. According to numerous newspaper reports today, the ACTU recently commissioned Auspoll to survey voters in 24 coalition held marginal seats. This is not the first time Auspoll has been used to manufacture concern. According to the Daily Telegraph last September, secret polling by Auspoll revealed that the controversial workplace reforms could cost the Howard government the next election.
It is no secret to any of us here that there is some community concern about Work Choices just as, might I add, there was about the introduction of the goods and services tax. That was so evil, according to Mr Beazley, that he would roll it back. He now of course fully embraces it. As with the GST, the union movement and the ALP are deliberately manufacturing fear, concerned with short-term opportunism rather than with nation building.
Auspoll Pty Ltd is owned and operated by six individuals, four of whom also own and operate Essential Research, which conducted dodgy polling for the ACTU last May. I say ‘dodgy’ polling because when the ACTU released some of the questions asked it was clear that dubious polling methods such as leading questions had been employed. This time the ACTU has not even released the raw data, let alone any of the questions.
But back to the owners of Auspoll. Elizabeth Lukin formerly worked for the Nursing Federation, the Finance Sector Union and the Australian Education Union. She and Mark Civitella formerly worked as media officers with the Victorian Trades Hall Council. Peter Lewis works as the media officer for the New South Wales Trades and Labour Council, edits Workers Online and was press secretary for former New South Wales industrial relations minister Jeff Shaw. John Armitage is a failed former Labor candidate for Flinders, who doubles as pollster for the Victorian ALP. There is a common thread here, Mr President. Even the Melbourne Age, in 2003, said Auspoll has ‘strong ALP connections’. Auspoll, once run by Labor upper house MP Matt Viney, has conducted polling for the ALP and has given money to the ALP. So much for the independence of this particular polling company. James Douglas, another Auspoll director and shareholder, has been described by his companies as follows:
James is a campaign organiser and political strategist.
The document says:
He understands the working of government and the ALP. He has organised state election campaigns and most recently was the campaign manager for Matt Viney—
remember that name—
in the supplementary election.
To conclude, what we have seen from the ACTU and the Labor Party over Work Choices is a campaign of dodgy polls, dodgy so-called independent academics and dodgy so-called disadvantaged workers who are in fact union officials like Fran Tierney. We as a government are proud of our Work Choices program because we see it as an exercise, as I said before, in nation building. Those opposite can engage in their short-term opportunism, but I invite them to make the backflip today so they will not be embarrassed in a few years time. (Time expired)
My question is to Senator Ellison, the Minister for Justice and Customs, and concerns answers he gave to the Senate yesterday. In reference to the ghost ship Jian Seng, the 80-metre unmanned tanker found drifting well inside Australia’s borders, does the minister stand by his claim yesterday where he said:
What this does demonstrate is that we have in place aerial and maritime surveillance to intercept a vessel in these circumstances, and that was done.
How did a massive 80-metre steel hulled tanker manage to evade this brilliant surveillance network? Why did it take the Howard government two weeks to intercept the vessel after it entered Australian waters? And, since the Howard government’s border security is so porous, what actions has the minister undertaken to fix these problems?
As I said on the record yesterday—and that was not in question time but in answer to questions put to me—when the vessel was first sighted on 8 March it was not doing anything illegal. At that stage there was no reason—
Opposition senators interjecting—
unless the opposition thinks that we should interdict vessels that are not doing anything illegal and that we should interdict and unlawfully board vessels for no reason at all. Maybe that is the way the opposition would do business. I can tell you that Australia abides by its international obligations and the law of this country and the law of the sea. When that vessel was first ascertained, on 8 March, it was not observed to be doing anything unlawful. To say that it drifted for the next 17 days is a leap of speculation on the part of the opposition. Quite frankly, this vessel was sighted at that stage and subsequently, some 17 days later, it was reported as drifting. It was not stated as having drifted for the whole of the 17 days—
Senator Ludwig interjecting—
Order! Senators on my left, including you, Senator Evans, are very disorderly during this question. I would ask you to come to order.
For Senator Ludwig to make that assertion is completely without foundation. When there was a report we sent a helicopter out to have a look at the vessel concerned. It did so. We then despatched the Storm Bay, which, as I described yesterday, came alongside the vessel during the hours of darkness and waited for daylight hours before boarding it. We notified AMSA of the vessel, and AMSA took over the operation. And we alerted vessels in the area in relation to any possible hazard in relation to the vessel. That was standard procedure. It was an interdiction which took place by our assets once that information had been received.
Mr President, I ask a supplementary question. Is it not the case that it was not Customs but a passing Australian barge that in fact spotted the vessel in Australian waters? How can the minister claim to be taken seriously when a drifting unmanned vessel has made a complete goose of his claim to have strong border security? If you cannot spot an 80-metre ship, what is the chance of tackling small fishing vessels that are ripping out our fish stocks?
Senator Ludwig does not quite appreciate how our system works in relation to the cooperation of other vessels that make sightings and report them to us. But I suppose Senator Ludwig believes that we should not rely on private vessels for sighting. He thinks that fishermen have no role. He thinks that commercial vessels have absolutely no role in looking out for Australia. I can say to Senator Ludwig that I have met with commercial fishermen who believe they do have a role. And we are working with them. We will rely on reports to our hotline and go out and inspect vessels which have been reported to us. We will do that when that is reported to Customs. If we did not do that, Senator Ludwig would be the first to say that we were derelict in our duty. In this case, we dispatched a helicopter immediately and the Storm Bay came alongside hours later. That demonstrates that we have a very good system in place; that vessel has been interdicted and towed into Weipa.
My question is to the Minister for Communications, Information Technology and the Arts, Senator Coonan. Will the minister update the Senate on the options being considered to bring Australia’s media industry into the digital age in a way that protects diversity in rural and regional Australia? Is the minister aware of any alternative policies?
I thank Senator Scullion for the question and for his interest in what is obviously a very important issue. The government is aware of the need to review media policy and to respond to the challenges of the digital age. Of course, protecting diversity in rural and regional Australia will be a central plank of any new policy this government espouses on media. So-called live and local media is vitally important to a regional community, and the government is well aware of its importance. Whatever response the government makes to the discussion paper, important consumer safeguards will remain.
The proposal I released last week includes a range of measures to protect diversity in regional markets. As I travel around rural and regional Australia, it is very clear that Australians need and enjoy access to locally relevant news and information. That is why the proposal includes a floor of four separate media groups in regional markets compared to five in mainland state capitals. This means that for 64 per cent of regional licence areas there can be no change at all. No mergers of any kind would be permitted in these markets unless a new player first entered the markets. Even in larger markets, where some mergers would be possible, they are by no means assured. Four players is a floor; it is not a target. We need to understand that the ability to restructure is in some cases a very good and necessary thing for those businesses. Often regional broadcasters face higher costs and lower revenues than metropolitan counterparts due to factors such as higher transmission costs and the lower advertising revenue that is available. Being able to expand and grow gives media companies an opportunity to be profitable without resorting to cost cutting and reduced services.
ACMA and the government will continue to monitor the provision of local content in regional television licence areas and in regional commercial radio services and will consider extending local content licence conditions to regional commercial radio broadcasters if local material declines. The government is taking the needs of regional communities very seriously and consulting widely on these proposals.
I was asked about some alternative policies. Unfortunately, I have searched in vain to find some. I did see, however, one media release from the ALP yesterday encouraging the protection of media diversity in regional Australia, but it was not from the communications spokesman—
Senator Ferguson interjecting—
You are right, Senator Ferguson—it was from someone he knows well; it was from Mr Simon Crean. Unfortunately, the opposition, by and large, retain a very outdated approach to media ownership. They want to restrict investment and the expansion of the Australian media sector and favour foreign investment over diversified investment by Australian investors. This horse and buggy approach to the media ignores diversity and the opportunity delivered by the internet and new technologies. The government is committed to reforming Australia’s media industry while protecting public diversity in one of the fastest growing areas of the Australian economy.
My question is to the Minister representing the Prime Minister, Senator Minchin. Can the minister confirm that the proposed treaty and agreement with China to be signed during Premier Wen’s visit will provide for export of uranium to China and also allow the involvement of Chinese companies in the exploration for uranium in Australia? If so, how can the government grant any such right to explore given that the Commonwealth does not have power over the states in that regard? What is the rationale for such a treaty and agreement, given that China is a nuclear weapons state which is already failing to fulfil its obligations to disarm under the non-proliferation treaty and that there can be no guarantee that Australian uranium will not displace limited Chinese supplies and facilitate the Chinese nuclear weapons program?
I thank Senator Milne for that pertinent question. It is timely and appropriate that that matter be raised. I say, on behalf of the government, as we have said on every occasion that this issue has been raised, that negotiating a nuclear safeguards agreement with China is a fundamental precondition to any sale of uranium to China. Any agreement that was to be concluded with China would be entirely consistent with our strict safeguards requirements. It must ensure, as do all our agreements on this matter, that Australian uranium, nuclear technology and expertise are used solely for peaceful purposes. That is fundamental to any negotiation that we undertake with China on this matter. It is hoped that we can negotiate agreements that could be signed during Premier Wen’s visit, and that would include the two agreements on nuclear safeguards and nuclear cooperation issues. As I said, they have to be consistent with our nuclear safeguards requirements.
You have also raised the issue of exploration, and I note that that has been canvassed. At the moment, any private company, domestic or foreign, is at liberty to seek to explore in this country and strike commercial arrangements to do so, but that would be, as is the point of your question, Senator, subject to state and territory legislation, which is the primary vehicle for regulating exploration and mining in this country. It would be subject to consideration by the Foreign Investment Review Board. Any uranium mine that flowed from any successful exploration would be fully subject to Australia’s very strict—probably the strictest in the world—policies in relation to exports and conditions set out in our bilateral safeguards agreement.
We are approaching this negotiation with China on the same basis that we would approach it with any other country in the world. We have probably the strictest regime in the world. It is a regime that ensures that any uranium that is exported from Australia can only be used for peaceful purposes. It requires compliance with IAEA inspections to ensure the verification of peaceful uses and to ensure that there is absolutely no possibility of any diversion to any nuclear weapons programs.
In relation to exploration, as I said, it is a fact that there are many entities exploring and mining in Australia at the moment that have a degree of foreign ownership. The point is that they must comply with Australian law. As I said, much of that is state law. To the extent that the federal government is involved, it is a matter of both the export policies that it applies and the Foreign Investment Review Board consideration in relation to any investment.
Mr President, I ask a supplementary question. I thank the minister for his answer. In view of what he said about Australia setting the highest standards, will he now confirm that the proposed safeguards to be applied to China will not require mandatory permanent compliance with the current full scope of the International Atomic Energy Agency safeguards, including the additional protocol, which would provide for the IAEA to nominate which sites they require to inspect and to conduct a wide range of chemical and environmental assay testing? Will the minister now confirm that that additional protocol will not apply and that mandatory permanent compliance is not going to be part of the agreement?
The question is rather technical. I would prefer to take advice on it before answering it in this chamber. I undertake to get that advice as soon as possible.
My question is to the Minister for Justice and Customs, Senator Ellison. Will the minister update the Senate on the federal government’s commitment to regional cooperation in the fight against transnational crime and terrorism?
Opposition senators interjecting—
When those on my left have come to order, I will call the minister, but not before.
This is a very important question because it involves initiatives in the region by the Howard government in relation to the fight against transnational crime and terrorism. Just last week I signed an agreement with the foreign affairs minister of the Philippines, Mr Romulo, in relation to air security officers travelling between our two countries. That was part of an election commitment. We now have in place air security officer agreements with Singapore and the United States. I think it is significant that in this regard Australia held for the first time the world conference on air security officers, in Canberra. That is significant because it recognises the esteem in which we are held in relation to our ASO program.
Opposition senators interjecting—
I realise that the opposition are not interested in the fight against transnational crime.
We are!
They should listen, then. We also talked about sex trafficking, the sexual exploitation of women and children, which might be of some interest to the opposition, and about the fight against illicit drugs. We have a situation in our region where there is a growth of amphetamine type stimulants and their trafficking. We also have the issue of the sexual exploitation of women and children. Those were key issues that I raised with my counterparts in Singapore and the Philippines. I also had discussions with the Singaporean government on our mutual assistance negotiations, which are crucial for the exchange of information in the fight against terrorism and transnational crime.
As well as that, I visited the bomb data centre in the Philippines, to which we contributed over $5 million and which has been a major boost to the Philippine National Police in the fight against terrorism in that country. I also had Customs with me. We have an initiative in the south of that country which deals with the Macassar Strait and the Sulu-Celebes Sea, where there is heightened terrorist activity and where we are working with the authorities in Malaysia, Indonesia and the Philippines to control what is a very dangerous area of terrorist related activity. I am talking about places such as Mindanao and Zamboanga.
If we are to protect Australia’s interests, it is important that we take the fight offshore. It is important that we have forward engagement in the region, in the South-East Asian region in particular, in the cooperation between law enforcement agencies in matters of security and the fight against transnational crime. We have seen great cooperation with the Philippines in the detection of precursor chemicals, which can be used to manufacture large quantities of amphetamine type stimulants. We have seen great cooperation in the fight against terrorism. Of course, the AFP is there, advising the region on a number of terrorist related incidents which have occurred in the Philippines. We saw the thwarted attempt in Singapore, where it was intended that there be an attack on our high commission, the British high commission and the United States high commission some years ago. It was the very good work of the Singaporean authorities that resulted in the thwarting of that attack.
We cannot succeed in the fight against these very important issues on our own. Australia cannot stand alone. We need to work closely with our neighbours in South-East Asia. The visit I had last week to the Philippines and Singapore was just another step forward in the great collaboration and cooperation that we have with law enforcement in the region in fighting transnational crime and terrorism.
My question today is to Senator Coonan, the Minister for Communications and Information Technology. It follows on from Senator Scullion’s question earlier on the issue of cross-media ownership. Does the minister recall her comments that: ‘85 per cent of regional Australia will not be affected by these changes’? Can she clarify whether this is 68 per cent, as she has just stated, or 85 per cent? Can the minister confirm that under her proposals the number of media owners could fall from six to four in the following regional markets: Albury-Wodonga, Ballarat, Bundaberg, Dubbo, Gladstone, the Gold Coast, Mackay, Maryborough, Mildura, Nambour, Newcastle, Orange, Rockhampton, Shepparton, Toowoomba, Townsville and Warwick? Will the minister now stop trying to con regional Australians and her National Party colleagues about the impact of her plans on media diversity?
As I said in relation to the earlier question to me, what this government understands as important is that any proposal that the government adopts as policy takes into account the needs of rural and regional Australia. That means not only diversity but also the retention of local content. The whole notion of live and local content in rural and regional Australia is clearly something that is very important to rural constituents. This government will ensure that, as part of licence conditions, live and local content will be retained, and it will in fact be monitored to ensure that it does not fall below acceptable levels.
As to the diversity test that has been proposed, it is true that the five-four test setting a floor in relation to mergers would prevent a significant reduction in media diversity in smaller regional markets. It stands to reason that, if there is a floor under which numbers cannot go, together with the competition tests that are to be administered by the ACCC, it is unlikely that there will be very much movement in regional media. The proposals very much relate to the larger markets, where you can understand the ACCC defining a market in such a way as to allow some consolidation and some scale and scope in existing media. In rural and regional Australia, quite clearly there are some very small markets—and ones where there are near-monopolies in any event—where it is unlikely that there would be any movement. It is quite clear from the test, as you look around the various centres, that about 64 per cent would have absolutely no change, and that is likely to rise to about 85 per cent. About another additional 19 per cent are unlikely to have any change unless there is some further entry into the market.
The regional communities will continue to have access to media services in addition to the current services: subscription television, ABC, SBS, community television, non-local newspapers and of course, as indeed with most other places around Australia, online services. There is no threat to diversity in regional media because of the number of tests and safeguards that this government would consider putting in place if we were to adopt the policy proposals. The safeguards are very clear. There is a voices test. There is the ACCC, which is specifically charged with looking at the idea of competition and at competition in a particular market. So there is a numbers test and a competition test. Added to that, of course, there is any amount of additional diversity delivered from other sources that are not a part of any regulated platforms.
The prospect of rural and regional Australia not being properly cared for in these proposals is absolutely preposterous. There is no reason for the government not to be looking at ensuring diversity for rural and regional areas, particularly in relation to content and particularly in relation to any proposed mergers. Any proposed mergers would have to be looked at not only as a matter of competition; we also have to bear in mind the fact that there can be, for some businesses that would otherwise qualify, some very good reasons to permit mergers to enable these particular organisations to continue to operate where the costs of those organisations— (Time expired)
Mr President, I ask a supplementary question. I thank the minister for her comments. I ask: does she recall her comments that the cross-media laws need to be relaxed so that media companies can achieve economies of scale? Minister, isn’t this just a coded way of saying that, under your plan, media companies would be freed to close newsrooms, to sack reporters and to reduce what you are calling acceptable levels of local content? Just how and why does the government think that this is in the interest of people living in regional Australia?
I cannot imagine that Senator Stephens seriously thinks that proposals to develop rural and regional businesses can do anything other than help rural constituents who obviously need to have access to the media instead of being frozen in time and looking backwards like the Labor Party looks backwards with everything they do. Not only have they had no plan for the economy, no plan to keep interest rates low, no plan to keep mortgages affordable and no plan for jobs; they do not even have a plan for the fastest growing area of the economy, the media. Rural and regional Australia should not miss out on what are very valuable reforms.
My question is to the Minister representing the Minister for Foreign Affairs. It regards circumstances surrounding West Papuan related issues. I note reports that surveillance by Australian authorities as well as Indonesian authorities has been stepped up to stop Papuans from fleeing to seek asylum, with an escalation of Australian air and sea patrols as well as the placing of Indonesia border troops on high alert. Given that the Australian government has formally recognised that a genuine risk of persecution exists for those refugees who recently fled West Papua, what is the Australian government doing to ensure that those who remain in that region are not also subject to persecution? I appreciate the sensitivities around the issue and the importance of trying to maintain good relations with Indonesia, but I ask the minister: how is the Australian government working to have the persecution which now indisputably exists reduced rather than just working with Indonesia to prevent any other refugees from escaping these dangers?
I thank Senator Bartlett for a very pertinent question. The answer to it is, of course, that the government will continue to apply the law in the way in which we have in relation to anyone who comes to this country, whether they come illegally or otherwise. It is very well known what attitude the government would take. More particularly, we welcomed President Yudhoyono’s undertaking last August that his government will focus on resolving issues in Papua in a peaceful, just and dignified way based on special autonomy. That is obviously the fundamental starting point for this government’s dealings with Indonesia in relation to the matter of West Papua and those who may wish to leave it.
The Australian government strongly supports Indonesia’s territorial integrity, including its sovereignty over Papua, and we certainly do not support separatism. Full and effective implementation of special autonomy is the best way of meeting the local community needs. As no doubt Senator Bartlett would know, we are currently implementing a $3.7 million development program in Papua focused on health and some other very real issues that local communities have, such as HIV-AIDS, education and public expenditure. We also focus on capacity building so that the West Papuans are able to build on these kinds of assistance packages to make sure that they have a much better way of dealing with their local conditions. We continue to urge the Indonesian government to investigate alleged human rights violations and to ensure that the human rights of all Indonesians are respected.
As I said in my opening remarks in answer to Senator Bartlett’s question, this government treats these cases on a case-by-case basis. So far as I am aware—and I will correct the record if I am wrong about this—there have been no further arrivals. We will continue to support the Papuans through capacity building and continue to develop our relationship with the Indonesian government to ensure that special autonomy is workable and in the interests of the local population.
Mr President, I ask a supplementary question. I thank the minister and note her acknowledgment of the government’s application of the law in regard to the refugees who have arrived in Australia recently. Following on from her answer, though, clearly the fact that those refugees have been acknowledged demonstrates that the central government in Indonesia is not able to ensure that people are free from persecution in West Papua. Is it not the case that, contrary to the desire of the central Indonesian government, significant players in the carrying out of some of that persecution are elements of the Indonesian military and police? How is it helpful in improving this situation in West Papua and in reducing human rights abuses for the Australian government to be considering further ties with the Indonesian military? Is the Australian government reconsidering that approach given the fact that persecution and human rights abuse still occur in West Papua, some of which involves those very same military personnel?
I thank Senator Bartlett for the supplementary question. As you know, Australia and Indonesia continue to cooperate on a number of matters, such as trade and investment. We cooperate on people-smuggling—and indeed we should. We have interfaith dialogue with them and are cooperating in our responses to avian influenza. It is important that no single issue should detract from the cooperation that Australia has with Indonesia.
I want to make the point that the decisions on temporary protection visas for the 42 Indonesians who arrived in January were made in accordance with Australia’s international and domestic legal obligations, as I said a little earlier. No broad conclusions should be drawn from these decisions. We strongly support Indonesia’s territorial integrity, including its sovereignty over Papua. That is really the critical issue. I do not think we can draw assumptions from the application of the Australian law.
My question is to Senator Ellison, Minister for Justice and Customs. Can the minister tell the Senate what specific action has been taken in response to allegations made in the Canberra Times newspaper on 16 March 2006 by Filipino migrant worker Mr Margarito ‘Gary’ Sorrosa that he had his passport stolen and was kidnapped by a group of five men linked to his employer, the Pangaea restaurant in Canberra, following a dispute about workplace conditions? In particular, can the minister confirm that there is an ongoing Australian Federal Police investigation into Mr Sorrosa’s allegations?
Can the minister also confirm that LHMU organiser Mr David Bibo, who is representing Filipino migrant workers who have been underpaid, was last week granted an interim personal protection order against Domenic Pelle, the owner of Zeffirelli’s restaurant in Canberra, because of an alleged threat on Mr Bibo’s life? Can the minister now outline what action is being taken by the AFP to protect Mr Bibo and the skilled Filipino migrant workers here on 457 visas?
Senator Lundy has raised a number of issues dealing with various alleged criminal offences which, I understand, would be dealt with by the ACT police—the AFP. In relation to kidnapping and the theft of a passport, I would imagine that that in the first instance would be dealt with by the ACT police. I will refer the question to the minister for police in the ACT and take on notice whether there is any involvement of the Australian Federal Police for which I have responsibility.
You have to remember that community policing in the ACT is carried out by the AFP under the responsibility of the police minister in the ACT government. Any allegation of theft or kidnapping would primarily come under the law in the ACT. The theft of a passport is a Commonwealth offence, and that might well be relevant. I will take it on notice and raise it with the minister for police in the ACT.
Mr President, I ask a supplementary question. I ask the minister to tell the Senate what protections are afforded to union members, union organisers—such as Mr Bibo—and their families under the Howard government’s extreme industrial relations laws?
In relation to the application of the law in relation to a person’s liberty and right to proceed without assault, I would have thought that it was abundantly clear that, no matter who you are, you are entitled not to be assaulted or obstructed unlawfully. In relation to the industrial relations legislation, that is a matter best directed to the minister who has responsibility for that. But, as Senator Lundy has addressed her question to me and asked what protection there is from violence and assault, I would refer to the laws of the ACT, as it is the jurisdiction about which Senator Lundy has raised her question.
My question is to the Minister for Environment and Heritage, Senator Campbell. Will the minister update the Senate on the latest initiatives the Howard government is taking to address the global problem of climate change? Is the minister aware of any alternative policies?
Thank you to Senator Adams for the question. It is a question that has had its importance underlined by the visit to Australia in the last couple of days by the British Prime Minister, Tony Blair, who has been a leader in driving the world towards a practical and sensible way of addressing climate change. He made it clear in his comments whilst in Australia that ‘Kyoto is not enough’, that Kyoto will not even stabilise emissions and that we have to, as a world, look beyond Kyoto and work much harder than we have been able to in the past. I think that he made an incredibly useful suggestion in trying to bring together the multiple tracks that the world is taking to address climate change—that is, the work that we initiated in Montreal to build an effective post-Kyoto framework to bring together the developing countries, such as China and India. We made the point at a meeting in the cabinet room this morning that you could in fact close down all of Australia’s power stations tonight and the emissions from those power stations would be entirely replicated by the growth in China within 10 to 11 months.
It underscores the importance of initiatives such as the Asia-Pacific Partnership on Clean Development and Climate, which brings together China, India, the United States, Korea and Japan. That partnership will have its first series of meetings in California next month and 45 Australian industry representatives and officials will be attending to get the working going. Within Australia, the Commonwealth’s policy of supporting the roll-out of photovoltaic cells into schools is on track. The Solar Cities program has $75 million to transform entire communities across to solar energy. There are also the low emissions funds and the renewable energy funds.
Senator Adams asked about alternative policies. In fact on 7 March we saw what I think they call a blueprint launch by Mr Beazley. I do recall that in the old movies blueprints were big rolls of documents with all sorts of fine details and substance. You could not really call this flim-flam, flimsy document anything other than a glorified press release. But it had a couple of points in it. In fact, before the ink on the blueprint was dry, a senior opposition shadow minister came out and basically blew the policy out of the water. I refer of course to Mr Martin Ferguson—a good friend of Senator Conroy, I believe.
Mr Ferguson was interviewed by the Australian and it was published on the weekend. He was asked about the 60 per cent target—the centrepiece of the ‘Beazley blueprint’. They asked Mr Ferguson, ‘Where was this target set?’ We found out that a young adviser from Mr Beazley’s office rang him up and said, ‘Mr Ferguson, where are you today?’ He said, ‘I’m in Melbourne.’ The adviser said: ‘We’re putting together this policy on greenhouse. We need to know where you are.’ He said: ‘I’m in Melbourne. Do you want me to come across to Perth?’ The adviser said: ‘No, Mr Beazley has not been in Perth for months. He lives in Sydney now.’ Mr Ferguson said, ‘Can I come to Sydney?’ The adviser said: ‘No, it is all right. You stay in Melbourne. We’ll do the policy in Sydney.’ Of course they set the target in the leader’s office—no consultation. Julia Gillard has told us about that!
The other thing that Mr Ferguson said about this target is, ‘The target is not set in concrete.’ Mr Beazley’s whole greenhouse policy is about a target in 50 years time, and Mr Ferguson has said, ‘It’s not set in stone.’ The other thing he said in describing the policy is, ‘Anyone can think up some harebrained idea.’ That is the scope of the alternative policy. It is a sham.
Mr President, I ask that further questions be placed on the Notice Paper.
I move:
That the Senate take note of the answer given by the Minister for Justice and Customs (Senator Ellison) to a question without notice asked by Senator Ludwig today relating to border protection and the unmanned tanker Jian Seng.
The answer from the Minister for Justice and Customs, Senator Ellison, was another miserable explanation for the appalling performance of his agency in relation to the ghost ship Jian Seng. I am indebted to Senator Ludwig because he really belled the cat on the incompetence of this minister and his agency in relation to border protection and, just as importantly, in relation to the protection of seafarers and fishermen who were in the area at the time where a vessel was uncontrolled and unlit—a navigation hazard at the very least—for about 17 days in Australian waters.
It has become clear that this vessel had been drifting aimlessly in the Gulf of Carpentaria for about 17 days. It was first known about by Coastwatch, apparently, and perhaps even earlier by the barge, on 8 March. The ship breached Australia’s porous borders sometime prior to that date. Its activities before that date are apparently not known, although the government concedes now that it was probably used as part of organised illegal fishing operations predating on the limited fishing stocks in Australian waters. It met no resistance from Australian authorities until 25 March. It certainly was a marine hazard. It was apparently unmanned, though we are not certain about that—we know that when it was boarded it was unmanned—it was certainly unlit and it was drifting aimlessly in the Gulf of Carpentaria. There are other vessels which sail in those waters—there are prawn trawlers, which work at night—and this vessel was unlit and a hazard to navigation.
It posed and possibly still poses unknown environmental and quarantine risks. I understand it has been refused admission to Weipa harbour and will be anchored outside of the harbour because of concerns of port authorities. It could have been carrying anything. It could have been carrying chemicals. It could have been carrying guns. It could have been carrying drugs. Did the department care? Apparently it did not care for 17 days. Here we have a government which, for its own purposes, knew that this is a vessel that it was not concerned about. It was not something it could use to put on the TV screens for Australians and make some more dog-whistle noises about protecting our borders. It was not concerned at all. It let it drift for 17 days. This was no Tampa ripe for exploitation, however. It was just a job that needed to be done—a job that the minister and his officers were not competent to do.
This is a vessel which the government now concedes was probably engaged in the dirty business of illegal fishing in Australian waters. Addressing that activity is obviously a low priority to this government. It is an activity the Howard government cannot or will not stamp out. As a result, Australian fishing stocks are being pillaged at unsustainable levels. For reasons unknown, the government took no action to arrest this vessel until it had been floating around in the gulf for 17 days. To use the language that the Prime Minister’s seal of approval has been given to, where the bloody hell was the government?
The attempt by the Minister for Justice and Customs to justify the government’s incompetence in this matter is absolutely breathtaking. He has now stonewalled Labor’s questions for two days. But the government cannot run away from its responsibility to explain its behaviour. It has some serious questions to answer: where did the vessel come from, what was it doing in Australian waters, who made the decision to let it drift free for 17 days, when was the Australian Maritime Safety Authority alerted to its existence, when were other seafarers warned of the hazard it posed, can the government explain how it plans to deal with the ship now and will it accept full responsibility for this fiasco or is it expecting the state of Queensland to take possession of the vessel and clean up the mess?
I am not surprised that the port of Weipa does not want the vessel there because, given the performance of this federal government, it is likely it would wash its hands of responsibility and say to the state government, ‘You’ve got it now; you deal with it.’ I am not surprised that the port of Weipa does not want the vessel in its harbour. I believe this government has a responsibility. It has failed to date. It has to pick up the challenge, deal with this vessel and get it out of Australian waters. As regards this ghost ship, what about Warren Truss? (Time expired)
These are matters of great moment before the Australian parliament as brought to us by the opposition. Here is an abandoned vessel floating quite harmlessly off the vast coast of northern Australia. For those of you who do not know, there are no shipping lanes in this area. It has been used by fishermen, but there are no shipping lanes. It is floating off the vast coast of Australia. A Customs Coastwatch helicopter reported the vessel at a very early point, around 8 March, as being derelict and with no apparent sign of life.
The opposition fails to understand that, in the practical operation of Coastwatch and the management of vessels in apprehending illegal fishermen, when you divert vessels to apprehend a vessel that is unmanned and floating harmlessly and aimlessly, you obviously leave a gap in the surveillance area. People who understand what happens on Australian patrol boats know that a patrol boat is deployed to apprehend illegal fishermen and then to deal with their boats. Whilst one goes and deals with a fishing vessel that is unmanned and floating, as I say, quite harmlessly, other areas are left exposed. What happened here, quite obviously—you do not need to be an Einstein to work it out—was that Coastwatch management rationalised the deployment of vessels as a matter of priority. The vessel has now of course been taken into tow and removed from the theatre, as it were.
I find it absolutely astounding that in the face of a whole lot of public interest matters occurring in Australia today this is the issue that the opposition would bring to question time—a vessel floating quite harmlessly in the vast oceans off the northern coast of Australia. What does that say about the political acumen of the opposition? The only policy that I can think of that the Labor Party has brought to the table in the last 10 years with respect to our northern coastline is that of a coastguard. The utter lack of understanding that the opposition brings to the table when it comes to the surveillance and management of the security of our northern shores never ceases to amaze me.
At one point the opposition actually suggested, and even to this day I find this one of the most remarkable pieces of political policy making in the history of the nation, that helicopters should be deployed with armed gunmen on board strapped to the side to shoot out the motors of illegal fishermen. This was actually opposition policy. Mr Deputy President, can your mind’s eye actually envisage this—a helicopter flying low over a manned foreign fishing vessel with a person strapped to the side firing live rounds into the vessel? I must say that goes down as the gold medal winner for the most reckless, impractical and ridiculous policy initiative I have ever heard. It was coastguard mark 3, if my memory serves me correctly. What does that tell me about the quality of the opposition’s nous, knowledge and ability when it comes to the protection of our northern shores? Obviously it is a very adverse reflection on their ability and capability.
Currently Australia is maintaining a very large force of patrol boats from Cairns to Broome. Indeed, I have had experience in the apprehension of seven Indonesian fishermen. These waters are vast, and the small wooden boats are not detectable on radar. This is a major problem for current apprehension techniques. When one does apprehend a foreign vessel inside our economic zone and our fishing grounds, communications have to go back to Canberra with respect to the processing of the apprehended individuals. I was fortunate enough to be on an Armidale class patrol boat that apprehended seven Indonesian fishermen. They were dealt with very efficiently and properly. Indeed, they seemed to quite enjoy the experience of getting off these very small boats. (Time expired)
It is interesting that this government talk about what we should not talk about. Let us talk about what they have failed miserably in—protecting our northern shores. If Senator Johnston wants to find out what they think, he should go up and talk to some of the fishermen in the northern parts of Australia. They think it is critical. They are worried and concerned that this government is not acting at all. That is the critical issue. Yes, Senator Johnston, we do need a national coastguard. That is a must. You fail to appreciate that this is a serious issue that is affecting our northern shores and needs to be taken seriously and addressed. This government is nothing but short and soft on border protection.
From Broome to Bamaga, there is a plague of plundering that threatens our national fish stocks and the sustainability of our large commercial fishing industry. It is a real threat of national significance, yet there is no doubt that illegal fishers do their prime damage to the families of those who work on Australian fishing fleets and in allied industries. That is where the real damage is done. But does this government seem to care? From what Senator Johnston said, it does not seem to care about it at all. Think about the environmental cost as well, in terms of the pillage that occurs. These pirates—because they are nothing else but pirates—who are stealing our fish do not respect quotas, size limits, laws on netting and by-catch, and so on, that we have put in place and that have made our commercial fishing industry a sustainable industry.
As well, think of the massive quarantine risk that can occur. These illegal fishers can land and are landing on the shores of our Australian mainland. Aboard these vessels are dogs, and animals for food such as chickens, pigs and goats. There are also plants and vegetable matter. But, instead of that, what Senator Ellison argues today and what Senator Johnston says is that the tanker was an unmanned vessel. You do not know that until you find out—until you actually go near it to see that it is unmanned. One of the first things that you would expect a good border protection agency to do is to not only say, ‘We’ve got some intelligence that there is a wandering 80-metre tanker,’ but to say who is on board, what is on board, what are they doing and where are they going—some basics that this government seems to have completely failed on getting right in this instance.
Of course, the risk is not only to our fish stocks; an obvious risk is also to our agricultural industries. If you think about it, if there is one chicken with the bird flu on board from Indonesia, you can say goodbye to both the chicken and the egg for Australia. There is a clear and present danger to both our economy and our environment. The Howard government’s response to this has been abysmal—even laughable. The problem is that the families of our commercial fishers are not laughing at all about this. They think it is very serious. They have raised it time and time again with their state governments; their state governments are doing as much as they can do about it. It requires a national response. This government is not meeting the challenge. The fishers and their families do not find it very funny that an 80-metre tanker can penetrate our so-called sophisticated border security, all the while unmanned and adrift.
We are all used to the fact that the system often cannot detect the smaller vessels that hide in mangroves and estuaries during the day to emerge only at night to continue their voracious attack on Australian fish stocks—that is one of the challenges that you have to meet—but it is truly pathetic if the system cannot detect an 80-metre tanker drifting in our waters on an erratic course dictated by wind and current. Far from being border control, this system has a hole that you could drive a tanker through. That seems to be what our border security system is now: it is that porous.
That is not the only outrage. My office has received details from the Queensland Gulf Fishermen’s Association of illegal fishers wandering ashore and even fishing upstream in the many rivers that empty into the Gulf of Carpentaria. We have all seen wells that have been dug in the Northern Territory and camps in Western Australia, and still this government maintains that it has an adequate border security system. It is just laughable.
The latest outrage is not illegal fishing but illegal hunting. There is hunting of our green sea turtles—an endangered species. These harmless creatures want nothing more than to be left alone but they typically end up being flipped on their backs and cut open along the seam where the top and bottom halves of their shell join while the creatures are still alive, and this government does nothing. (Time expired)
As a member of the government, I take exception to this being referred to as a laughing matter. The government have demonstrated over many years that we take border protection and the protection of our fisheries in a very serious manner. To suggest that it is a laughing matter from this perspective is totally incorrect, and I reject that from Senator Ludwig in his address a moment ago.
I would like to take us back to when Senator O’Brien raised a few issues. He at least acknowledged that the vessel was not confirmed as being totally unmanned for the entire duration that it was in Australian waters. The Hansard will reflect that Senator O’Brien said: ‘We don’t know that. It was probably unmanned, but we do not know that.’ That is correct and that was correct at the time of the first sighting of that vessel. Senator O’Brien also indicated that the minister had stonewalled answers over the last two days. That is totally incorrect. Again, the Hansard will reflect that the minister has answered these questions adequately, honestly and in a manner that the Australian public would expect.
This minister, along with previous ministers, and also the policies of this government reflect that our concern is deep and very sincere and that we want to protect our borders. If we look at the record in recent years of border security in northern Australia, there has been very limited penetration. We are looking at a huge water mass—one of the largest water borders in the world—and we are doing a fantastic job with the conditions that we face and with the length of travel for vessels. The vessel was, after all, detected. It would be a different matter if it had come in and had gone. The vessel was detected and located and is now secure.
The other matter concerns the potential danger or threat. Senator Ludwig highlighted issues like animals, vegetables or other forms of contamination. The preliminary inspection of the vessel revealed that that was not the case. All necessary precautions were taken to ensure that, once the vessel was taken into our protection, Australia was not in any way compromised by way of biodiversity hazards or, in particular, any other forms of material that may infringe our particular quarantine standards.
Looking at the particular facts—and we must use facts, not speculation; some of the words that have been used have been a little bit alarming—they are that this vessel, after being discovered, was monitored and then taken into protective custody, if I can use that phrase for a vessel. This vessel has proven to be of no threat to Australia.
Yes, there will be gaps from time to time in any border security; in any border protection anywhere in the world there will have to be gaps. But I am very proud to be a member of a government that has addressed most, if not all, of the issues. This government is moving forward with a definitive policy to protect northern Australian borders and indeed all our fisheries. We have a combination of policies that complement each other, and those policies address all of the issues required to protect the northern parts of Australia and indeed other parts of our border.
The Australian Customs Service have acted extremely well in this and, together with the Australian Maritime Safety Authority, took immediate action—not delayed action but immediate action—when the alert about the vessel was apparent. Also, Customs acted in such a way that they did not endanger any members of the service who went to apprehend that vessel. Their actions were undertaken in a very appropriate manner. In particular, the guiding of the vessel during the night-time hours after the authorities first intercepted that vessel, not boarding until daylight hours, was a very sensible measure, not a delayed measure.
This government is just superb in its handling of these matters and to suggest otherwise beggars belief. I just cannot understand how, when we have such a secure arrangement in northern Australia, the opposition can concentrate on an issue like this. It must be a matter of the opposition not being able to find attack points on the government on any other issue, so they pick something that is very minor but give it a sense of alarm by the language they use. This government is protecting Australia in every way, shape and form and will continue to do so. This government has a fine record in that regard.
I also rise to take note of the answer given by the Minister for Justice and Customs, Senator Ellison, in question time today in relation to the ghost ship that has been drifting in the Gulf of Carpentaria, the Jian Seng. I have to say in response to the previous speaker in this chamber that this is not a superb example of how this government is handling the illegal fishing situation in this country. In fact, this is another example in a string of incidents in the last year or so of the total incompetence of this government.
I note that Minister Bailey is roaming around the world trying to defend the Tourism Australia slogan ‘where the bloody hell are you’. Let me tell you that people in the north of this country, particularly people in the Northern Territory, are wondering exactly where this government is. Where the bloody hell is this government when it comes to protecting our coastline, when it comes to protecting our fishing stocks and, today, when it comes to protecting our turtles? Today on the front page of the Northern Territory News there is a large headline and a graphic photograph of a group of illegal fishers dragging their net up an Australian beach which contains two green turtles, as my colleague Senator Ludwig mentioned before. So we have not only illegal fishing but also illegal hunting happening in the north of Australia, and the government is nowhere to be seen in terms of trying to tackle the situation.
Let us have a look at what we have here. We have a minister who says that an abandoned tanker floating in the Gulf of Carpentaria was actually doing nothing illegal. How would you know that? How do you know that unless you actually respond to a warning, get on board and find out exactly what is going on? We have a tanker that we believe was probably a resupply ship for foreign fishing boats, so the question is: was that the case? Was this in fact a boat that contained rice, other food supplies and stock to replenish the mother ship in an illegal fishing chain, one of many that are operating in the north of Australia? And, if that is the case, why don’t we know what it was doing? Why don’t we know where it came from? Why don’t we know what it was doing floating aimlessly around the Gulf of Carpentaria, only 40 kilometres from the coast? So much for this government’s claim that it is strong on border protection. What a joke. This government is extremely weak on border protection—very weak, in fact—and the holes in this particular policy position are slowly being uncovered, incident by incident.
The ship was in the zone for two weeks, nearly 17 days, before the authorities even intercepted it. Senator Ellison said yesterday that it was spotted by Coastwatch on 8 March. We now know that that was not true. It was actually spotted by a barge captain. So we now have barge companies in northern Australia playing the role of protectors and keepers of our coastline. A barge captain tips off this government that there is some ship floating around there in the Gulf of Carpentaria on 8 March; that was when Coastwatch were first alerted to this and first knew about it. But then it takes them until last Thursday or Friday to get out there and have a really good look at what this tanker or ship is supposed to be. Is it in fact the same vessel? We still do not know the answer to that. Is the vessel that the barge captain saw back in early March the same vessel that Coastwatch spotted last Friday and then bothered to board on Saturday?
The truth of the matter is that under this government our coastline is extremely vulnerable. The policy that this government has is not working. Authorities are unable to track illegal vessels. Last year alone, we had 13,000 illegal vessels sighted in Australian waters—and only 609 of those were apprehended or detained—let alone those that get right in close to our shores, in the mangroves and up the rivers, or, as in the case of this ship and its people, park on a beach near Milingimbi, actually slashing and killing turtles for their own game. So when is this government going to get serious about tackling the invasion of our coastline and the pilfering of our fishing stocks and step on board and do something about it? One hundred thousand dollars to the Amateur Fishermen’s Association of the Northern Territory might be a start, but it is a very meagre contribution to tackling this situation. The government needs to put together a policy that coordinates all of the agencies concerned—(Time expired)
Question agreed to.
I move:
That the Senate take note of the answer given by the Minister for Finance and Administration (Senator Minchin) to a question without notice asked by Senator Minchin today relating to the export of uranium to China.
My question related to the Howard government’s intention to sign in the very near future an agreement with Premier Wen of China to export Australian uranium to China and an agreement to facilitate Chinese companies mining uranium in Australia, notwithstanding that it is a responsibility of state governments to license such exploration.
The matter I want to talk about today is the big picture issue of the fact that when the Howard government moves to sell uranium to China it is making the world less safe and it must take responsibility for fuelling the nuclear weapons cycle globally. There is no other way to look at it. Let us look at China’s history in relation to nuclear power. First of all, it has an active nuclear weapons program. Nobody can deny that—it is happening right now. Secondly, China has provided missile technology in the past to North Korea, to Libya and to Pakistan and was also implicated in selling technology for weapons into Iran. China’s record is not good in relation to non-proliferation of nuclear weapons.
Furthermore, only last year somebody senior in the Chinese People’s Liberation Army indicated that if the US moved on Taiwan China would use nuclear weapons. And China’s nuclear weapons are quite capable of reaching Australia. So we have a government that is blind on behalf of BHP Billiton and its associates, and the dollars that might flow in from the export of uranium, to the global ramifications of fuelling the nuclear weapons cycle. Let us go into that. We heard the government say in question time that the highest standards will apply. They will not apply because China is part of the nuclear weapons club and as such its safeguards agreement with the International Atomic Energy Agency is different from that of other countries. When I say that, I mean China can refuse inspection of its facilities under its existing safeguards agreements, and already Foreign Minister Downer has said that the additional protocol will not apply in relation to China. If that additional protocol did apply then it would at least allow the International Atomic Energy Agency to nominate the sites they wanted to inspect and it would allow them to conduct a wide range of chemical and environmental assay testing. But that is not going to apply in relation to this deal with China.
Furthermore—and this is the thing the Howard government have to answer—they say that they can guarantee that the yellowcake that leaves our shores will go into nuclear power. How can they do that when the Chinese have insisted that all uranium leaving Australia be processed in China and all the processing facilities are in military facilities which they can refuse to have inspected under the current safeguards? That means Australian yellowcake goes in, Chinese yellowcake goes in, it is processed to various levels of intensity and you can have your highly enriched uranium coming out and your uranium processed to such a level that it can fuel nuclear power for civilian purposes. But the point is: you cannot decipher which uranium atoms are from Australia and which are from China or elsewhere. Even if you could, it does not matter because China has already said it has insufficient uranium to have nuclear power and nuclear weapons. It wants both, and so Australian uranium will either be used to displace the uranium currently in the power cycle to allow Chinese uranium to go across to the weapons cycle or, alternatively, simply be used in that way.
Australia has a substantial case to answer and if the Howard government is going to declare that it is interested in the war against terror and that it supports a stronger and more secure global environment then it should not be exporting uranium to China and India which will make the world less safe. We know that there are handbag sized bombs for terrorists and we know that highly enriched uranium is already out there and in fairly insecure storage around the world. Australia fuelling this cycle simply in order to improve its export balance of payments and the returns to companies that have got a clear eye on the game, of which BHP Billiton and its Roxby Downs expansion is one, is not a good reason to be rushing headlong into nuclear. It is not a solution to climate change—that is a furphy. (Time expired)
Question agreed to.
Petitions have been lodged for presentation as follows:
Senator Kirk to move on the next day of sitting:
Senator Lundy to move on the next day of sitting:
Women in sport and recreation in Australia, with particular reference to:
Senator Siewert to move on Thursday, 30 March 2006:
Senator Conroy to move on the next day of sitting:
The impact of proposed changes to cross media laws outlined in the Government’s media reform options paper, with particular reference to:
Senator Minchin to move on the next day of sitting:
Senator Coonan to move on the next day of sitting:
Senator Vanstone to move on the next day of sitting:
Senator Santoro to move on the next day of sitting:
Senator Minchin to move on the next day of sitting:
Senators Coonan and Kemp to move on the next day of sitting:
Senator Nettle to move on the next day of sitting:
Senator Stott Despoja to move on the next day of sitting:
by leave—I move:
That leave of absence be granted to Senator Fielding for the period 28 March to 30 March 2006 for personal reasons.
Question agreed to.
by leave—At the request of the Chair of the Rural and Regional Affairs and Transport Legislation Committee, Senator Heffernan, I move:
That the time for the presentation of the report of the Rural and Regional Affairs and Transport Legislation Committee on the 2005-06 additional estimates be extended to 30 March 2006.
Question agreed to.
The following item of business was postponed:
General business notice of motion No. 334 standing in the name of Senator Bartlett for today, relating to sexual assault on children in Australia, postponed till 30 March 2006.
At the request of the Chair of the Rural and Regional Affairs and Transport Legislation Committee, Senator Heffernan, I move:
That the time for the presentation of the report of the Rural and Regional Affairs and Transport Legislation Committee on annual reports tabled by 31 October 2005 be extended to 10 May 2006.
Question agreed to.
At the request of the Chair of the Rural and Regional Affairs and Transport Legislation Committee, Senator Heffernan, I move:
That the Rural and Regional Affairs and Transport Legislation Committee be authorised to hold a public meeting during the sitting of the Senate on Wednesday, 29 March 2006, from 4.30 pm to 6.30 pm, to take evidence for the committee’s inquiry into the administration by the Department of Agriculture, Fisheries and Forestry of the citrus canker outbreak.
Question agreed to.
At the request of the Chair of the Finance and Public Administration Legislation Committee, Senator Mason, I move:
That the time for the presentation of the report of the Finance and Public Administration Legislation Committee on the 2005-06 additional estimates be extended to 30 March 2006.
Question agreed to.
At the request of the Chair of the Foreign Affairs, Defence and Trade References Committee, Senator Hutchins, I move:
That the Foreign Affairs, Defence and Trade References Committee be authorised to hold a public meeting during the sitting of the Senate on Tuesday, 28 March 2006, from 4.15 pm, to take evidence for the committee’s inquiry into naval shipbuilding in Australia.
Question agreed to.
At the request of the Chair of the Economics Legislation Committee, Senator Brandis, I move:
Question agreed to.
At the request of the Chair of the Parliamentary Joint Committee on Corporations and Financial Services, Senator Chapman, I move:
That the Parliamentary Joint Committee on Corporations and Financial Services be authorised to hold a public meeting during the sitting of the Senate on Wednesday, 29 March 2006, from 5 pm to 7.45 pm, to take evidence for the committee’s inquiry into corporate responsibility.
Question agreed to.
by leave—I, and also on behalf of the Leader of The Nationals in the Senate (Senator Boswell), the Minister for Ageing (Senator Santoro) and Senators Bartlett, Brandis, Hogg, Ian Macdonald, McLucas, Mason, Moore and Trood, move the motion as amended:
That the Senate—
Question put and passed. All Australian Greens senators, by leave, recorded their votes for the ayes.
Question agreed to.
Mr Deputy President, I would like the Australian Greens’ support for that motion to be recorded.
That will be recorded.
by leave—I move general business notice of motion No. 393 as amended:
That the Senate—
Question put:
I move:
Question put:
I move:
Question put:
I move:
That the time for the presentation of the report of the Rural and Regional Affairs and Transport References Committee on water policy initiatives be extended to the last sitting day in June 2006.
Question agreed to.
I move:
Question put.
I move:
Question negatived.
The President has received a letter from Senator Conroy proposing that a definite matter of public importance be submitted to the Senate for discussion, namely:
The Government’s continuing attempts to undermine the independence of the Australian Broadcasting Corporation.
I call upon those senators who approve of the proposed discussion to rise in their places.
More than the number of senators required by the standing orders having risen in their places—
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 shall ask the clerks to set the clock accordingly.
The ABC is one of Australia’s most important national institutions. Millions of Australians across the length and breadth of this country rely on the ABC to keep them informed and entertained. It also has a vital role in developing Australian culture and our national identity. The ABC is a national asset that belongs to all Australians. It should not be a plaything of the government. It is no secret, however, that senior members of the Liberal Party take a very different view. Earlier this month the Bulletin catalogued the deep and abiding hatred that this government has towards the ABC. A senior Liberal was quoted as saying that the Chairman of the ABC, Mr Donald McDonald, is ‘hated and detested’ by most members of cabinet. By all accounts, his crime is that he believes that his role is to protect the integrity and independence of the ABC.
The last decade must have been difficult for Mr McDonald. Since 1996 the Howard government has been waging war on our national broadcaster in a determined effort to silence the ABC’s independent voice. The ABC has been starved of adequate funding. Last October, the ABC told Senate estimates that in real terms it has $51 million less per annum to make programs than it did when John Howard came to office. The former ABC managing director, Russell Balding, has warned that the ABC is ‘seriously under threat’ and has stated that he is concerned ‘about the ABC having the financial capacity to continue to develop, produce and deliver content’.
The funding cuts experienced by the ABC have had a real impact on the ABC’s ability to fulfil its charter obligations. The most obvious area to have suffered is the ABC’s production of Australian drama. Last year the ABC broadcast only 13 hours of locally produced drama. Five years ago it produced more than 100 hours. Inadequate funding is also stifling the ABC’s ability to fully exploit the possibilities of digital broadcasting. ABC2, the national broadcaster’s digital channel, runs on a budget of just over $2 million. As a consequence, little in the way of new content is available on ABC2 and the potential of the channel to drive digital take-up is not being realised.
The viewing public and the Australian production industry are being forced to pay the price for the Prime Minister’s ideological obsession with crushing the ABC. There are few signs that the May budget will bring the ABC any relief from the ideologically motivated funding squeeze that it is experiencing. During the 2004 election campaign the government promised to review the adequacy of the ABC’s funding and the efficiencies of its operations. This was an election commitment. Senator Coonan appointed KPMG to carry out this task. The minister has now received this report but she refuses to release it. She claims that the report is a budget input. There was no mention in the government’s election policy announcement that the report would be kept secret. Indeed, the context of the commitment was that the government would give the public an independent benchmark to assess the adequacy of the ABC’s funding.
Despite the minister’s moves to sweep the KPMG report under the carpet, it has been widely reported that the KPMG report found that the ABC is chronically underfunded and is efficient. This is a finding that would not surprise most reasonable observers. Senator Coonan should immediately release the KPMG report so that we can have a proper debate about the level of funding required to ensure that the ABC is the world-class public broadcaster that Australians deserve. The fact that the outcome of the review did not vindicate the government’s prejudices is no excuse for not releasing the report. Australians are entitled to ask what the government has got to hide. Taxpayers have paid $417,000 for this KPMG report. They are entitled to see its results and to make their own judgments. The Bulletin report on the ABC earlier this month shows a government that will not be diverted from its goal of destroying the ABC by the KPMG review. They will not let the facts get in the way of their blind prejudice. The Bulletin reported:
Despite some recent optimism, sources told The Bulletin that the ABC’s funding submission was doomed. Asked if there was a chance the ABC would receive more funding ... a reliable government source said flatly: “No. None.”
So we have this pretence of a public review, but the issue has already been prejudged. This is a government that is sitting on a massive budget surplus. Reports are of $14 billion worth of surplus. That is billion, not million. The government should invest some of this money to restore adequate funding to the ABC so that it is able to deliver the high-quality news and current affairs and the entertainment that Australians expect.
In recent weeks the government has made it clear that armed with its Senate majority it is about to launch a new offensive against the ABC. The minister told the Bulletin:
... it won’t be the same ABC it is today in a year’s time; we are in for some very exciting changes.
Well, we are now starting to see what these changes are going to be. They may be exciting for the ideological zealots in the Liberal Party, but they are cause for concern for all Australians who value a strong and independent ABC. The government has begun softening up the public for introduction of advertising on the ABC. The minister went on radio and misled the Australian public, stating that the introduction of advertising was a matter for the ABC board to consider. The minister should have been aware that this is not the case. Section 31 of the Australian Broadcasting Corporation Act states clearly:
The Corporation shall not broadcast advertisements.
It is black and white in the legislation. It is not a matter for the board, Minister; it is the law.
At the last election, the government promised to maintain this prohibition. It was a government election commitment: ‘We will not put advertising on the ABC.’ Do not worry about your election commitments! Despite this the Prime Minister and the Treasurer have called for the matter to be examined. The government should immediately make clear whether it intends to honour its election commitment or not. Let me be clear about this: Labor is completely opposed to any move to introduce advertising on the ABC. Advertising would take the ABC down the American road, where public broadcasters have to beg for corporate sponsorship to remain viable. Advertising would undermine the ABC’s editorial independence, which has been built up over 70 years. ABC program makers must be free to take on powerful vested interests. Current affairs producers should not have to worry about offending the sponsors of the 7.30 Report.
The introduction of advertising would mean that decisions about what programs are broadcast would be dictated by needs of advertisers rather than the ABC’s charter. In such an environment, programming decisions are likely to become more conservative and less innovative. Government members like Senator Humphries have been championing advertising as the solution to the ABC’s funding crisis. A few weeks ago he said:
… the fact is the ABC needs the money and could make great things happen with that money, such as restoring services in regional Australia…
He went on:
We can sit back and wait for the wonderful day when money comes from government but it’s unlikely to happen in sufficient quantities into the future.
The fact is that advertising will not save the ABC; it will destroy it. If Senator Humphries is really interested in strengthening the ABC he should start lobbying his colleague the Treasurer to stop the funding squeeze.
The latest instalment in the government’s attempt to undermine the independence of the ABC was the minister’s announcement last week of a plan to restructure the ABC board. The announced restructure consists of just one measure: the abolition of the position of the staff-elected director. For 10 years the government has tried to stack the ABC board with its political mates to try to control the ABC. People like Michael Kroger, Ron Brunton and Janet Albrechtsen have been dispatched to the board with orders to bring the ABC to heel. There is a clear conservative bias amongst the current board. This bias has undermined the confidence of many Australians in the independence of the ABC. The staff-elected position is the one appointment that the Prime Minister cannot control. That is why it has been targeted for termination.
Under the current arrangements, the staff-elected director makes an important contribution to the ABC’s corporate governance. The staff-elected director is able to give the board an important insight into ABC operations. Particularly with the current board, they are sometimes the only person with the expertise to question the advice coming from the ABC’s executive. The Prime Minister is not appointing mates who understand anything about public broadcasting; he is just appointing his ideological mates. They have not got a clue about public broadcasting. The elected representative on the ABC board is the only person with, in many instances over the last 10 years, any experience or understanding of public broadcasting.
It is not just the Labor Party that has complained about this. In 2001 government senators unanimously—and I am willing to bet, Senator Eggleston, you were one of them—endorsed a Senate committee recommendation to retain the staff-elected director’s position. Nothing has changed except that the government now has a Senate majority. This is an arrogant, out of control government that is determined to undermine one of our most important national institutions. If the government was really serious about improving the ABC’s corporate governance it would end the practice of stacking the board with coalition cronies.
Since 2003, Labor has argued that there should be an open and transparent process for making appointments to the ABC board. Vacancies should be advertised and there should be clear merit based selection criteria. Labor’s policy provides for an independent selection panel to undertake a proper shortlist selection process. Most importantly, the selection of the shortlist would be independent of the minister. If the minister does not appoint a short-listed candidate he or she will have to table in parliament a formal statement of the reasons for departing from the short list. Labor’s policy will enhance our democracy by making the ABC independent of government. It will foster an environment where the ABC can be fearless in its approach to news and current affairs and critical of both sides of politics whenever necessary. These are the changes Labor will be arguing for when the government introduces its bill into the parliament.
It is about time this government realised that the overwhelming majority of Australians do not share their warped views about the ABC. According to research conducted by Newspoll, 82 per cent of people believe that the ABC is balanced and even handed when reporting news and current affairs; 84 per cent regard the ABC as distinctively Australian and contributing to Australia’s national identity; 80 per cent believe that ABC TV provides quality programming; 70 per cent believe that the ABC is efficient and well managed; and 90 per of the public value the ABC and its services to the community.
Just today, the Treasurer received a petition organised by the community organisation GetUp and endorsed by 42,000 Australians, calling on the government to properly fund the ABC. This is an extraordinary figure considering the petition was only launched last Thursday. Nobody would pretend that the ABC is perfect. Like any media organisation, the ABC makes mistakes. (Time expired)
Senator Conroy failed to make his case in any way whatsoever that the Howard government is seeking to undermine the ABC. In fact, the Howard government is a very strong supporter of the ABC and recognises the value of its services to the community. Amongst a significant section of the population, the national broadcaster is regarded as a cherished institution. This is particularly so in rural and regional areas. It is cherished for its commitment to local news and current affairs, the quality of its news services and the general quality of its programs, particularly in country areas but also throughout this country.
This government, like its predecessors, is committed to a vibrant and independent ABC. The government has no intention of compromising this independence. Indeed, the editorial independence of the ABC is guaranteed by the ABC Act, which is something that Senator Conroy seems to have overlooked. Its fact sheet, ‘The ABC’s charter, independence and accountability’, states:
By law and convention, neither the Government nor Parliament seeks to intervene in editorial and program decisions.
The ABC Act explicitly states:
Except as provided by this section—
relating to the minister’s power to direct the broadcast of matters in the national interest—
or as expressly provided by a provision of another Act, the Corporation is not subject to direction by or on behalf of the Government of the Commonwealth.
The ABC Act charges the board of the national broadcaster with the duty of ‘maintaining the independence and integrity of the corporation’. With public funding, however, come certain obligations. Just as with any other media organisation, the government does not expect nor does it demand favourable reporting from the ABC. Nevertheless, it does expect—and it is by no means an unreasonable expectation in the context of the very significant public funding that the organisation receives—the ABC to take a fair, balanced and objective approach to its news and current affairs coverage.
In order for the ABC to meet its functions and duties under its charter, since 1997 the government has maintained its funding in real terms; whereas, by way of contrast, when Labor was last in office it continually reduced the ABC’s funding, and the ABC’s current levels of funding exceed those it had under the Labor government prior to the 1996 election. In 2005-06, the ABC will receive funding of $792.1 million, and during the 2003-06 triennium it will receive almost $2.3 billion from the Commonwealth government. In the 2004-05 budget, $4.2 million per year was also directed to the ABC in ongoing and indexed funding in order to help it meet the increasing costs of purchasing television programs.
In 2004-05, the government announced an additional $54.4 million for the ABC’s regional and local programming initiative, on top of the $71.2 million provided to the ABC in the 2001-02 budget for the National Interest Initiatives program. To assist both the ABC and the SBS to meet the additional costs associated with digital broadcasting, the coalition is continuing to deliver on its commitment to fully fund their digital transmission and distribution expenses, at a cost of over $1 billion.
Labor failed to provide the ABC with additional funding for local and regional programming. Sitting here listening to Senator Conroy one could be forgiven for thinking that this government does not have regard for the ABC. The fact is that this government has funded the significant expansion of ABC television and radio services so that more Australians have access to the ABC then ever before—hardly the actions of a government antagonistic to the ABC.
The government made an election commitment for a funding adequacy and efficiency review, following a request from the ABC board. KPMG Australia has conducted this review and its results will be considered by the government in the context of future decisions relating to the funding of the ABC. The minister has consistently stated that the ABC will not lose funding as a result of this process.
Turning to the recent announcement in relation to the restructuring of the ABC board, it certainly should not be characterised as an attack on the independence of the ABC. The decision to abolish the staff-elected director position on the ABC board represents an initiative to improve the national broadcaster’s corporate governance. The government believes that the concept of a board director elected by a particular group is an anachronism that does not accord with modern requirements for corporate governance, and is certainly not common on other Commonwealth government agency boards.
The position of a staff-elected director on the ABC board creates undue uncertainty about accountability when you bear in mind that directors are required to act in the best interests of the ABC as a whole, not just in the interests of a particular constituency. There is an inherent conflict of interest between the clear legal duty of a director to act in good faith and in the interests of the ABC, and being elected by staff who may primarily expect the staff-elected director to represent their interests rather than the interests of the ABC as a whole.
On a practical level, this has led to difficulties in respect of board confidentiality and lack of commitment to a revised board protocol that deals with handling of confidential information. The difficulties arising out of the staff-elected director position have previously been raised by departing board members and in 2004 led to the resignation from the board of Mr Maurice Newman. The abolition of the position certainly does not mean that the board and management of the ABC will not take employee interests into account, but there are ways of doing this without having a specific staff-elected position on the board. In particular, the Managing Director of the ABC, who is a full member of the board, is more than capable of making employee interests known to the board.
The government does not support advertising on the ABC in the 2006-09 triennium. It will be up to the ABC board in the future to consider whether to approach the government about advertising on the ABC, and the government would need to be persuaded to make the necessary legislative amendments that would permit this. In doing this, the government would need to consider if advertising would be consistent with the ABC’s charter, as well as its impact on commercial broadcasters. I have to say that I do not think Senator Conroy has made his case at all that the Howard government has sought to undermine the ABC. To the contrary, I think the case has been made that the government has consistently supported the ABC and will continue to do so in recognition of the great service it provides to the Australian community.
We need to turn our minds back to the reason the ABC was established in the first place. It was established for two prime reasons. The first was that the commercial media could not be relied on to make the full and proper investment that was necessary to deliver services to much of Australia. That is still a problem today, despite the improvement in technology. The second reason, of course, was to ensure, as far as possible, that there was an independent voice which was not governed by commercial imperatives and which would not carry on the biased and somewhat superficial approach to news and current affairs that was and is a characteristic of some of the commercial media.
The ABC is not just an important part of our telecommunications and media network—the information gathering and disseminating network—it is a very important social and political counterpoint to the big business attitudes that often determine how our main commercial media report. It is therefore an important part of our democracy. The ABC provides a lifeline to, in particular, regional Australia, with informed current affairs reporting, vital contributions to Australian culture and the provision of Australian content. It also makes a contribution to a proud Australian nationalism and the expression of the Australian character.
However, ABC operational funding has declined by 30 per cent since 1985-86 under both Labor and coalition governments. In 1996, the coalition cut funding by 12 per cent. This has never been restored. ABC funding has been cut far more in relative terms than any other major area of government expenditure. The ABC is finding it difficult to maintain core services like news and current affairs at the level and to the depth required. Cheaper programs therefore end up replacing quality and more expensive, long-term programs. Australian content ends up falling and repeats become increasingly common. Those sorts of results directly attack the ABC charter and its basis of operation.
Many Australians are concerned that current affairs shows such as Four Corners and iconic children’s programs such as Play School might go without adequate funding. Already the ABC production of local drama has fallen from 102 hours in 2001 to just 20 hours in 2005 as a result of underfunding. A recent KPMG audit of the ABC, commissioned by the government, has found that the ABC is efficient but severely underfunded. Rather than spend a small part of the estimated $14 billion surplus on adequately funding the ABC and providing a service that Australians do value, the government is talking about allowing advertising on the ABC—not in the immediate future but in the long-term future. That would be a mistake because it would introduce commercial imperatives and suppress a fully independent operation. That is a government view which should not prevail in the future. Public funding means that the ABC does not have the commercial pressures of other broadcasters, allowing the ABC to provide diverse programming and maintain independence and journalistic integrity without fear or favour. The ABC should not be in the business of selling junk food to kids or motor cars to adults.
Last Thursday, GetUp and the MEAA launched a petition calling on the Treasurer and finance minister to grant the moderate funding requested by the ABC in their triennial budget submission. They set a target of 10,000 signatures. Within 12 hours they smashed their target, and within four working days they had received 41,270 signatures. The overwhelming response to the petition demonstrates the sense in the community—ordinary Australians—of how committed people are to this cherished institution and to it remaining independent and well funded. We are also concerned about Minister Coonan’s decision to remove the staff elected ABC board member. We think this decision is bad politics, bad public policy and bad corporate governance. (Time expired)
I rise to speak about a matter of public importance which affects one of the great public institutions of Australia—the Australian Broadcasting Corporation, the ABC, the people’s ABC. It is now an endangered species and has been since the election of the Howard government. The ABC as we have known it is moving closer and closer towards extinction in the hands of this government. Since 1996, the government has starved the national broadcaster of funding. In real terms today, the ABC has $51 million less for making programs than it did when the Howard government came to office. The ABC is so starved of funds that it now rates as the second most underfunded public broadcaster in the OECD. Despite this, the ABC provides two television stations, four national and 60 local radio stations, two digital radio stations, ABC Online and Radio Australia—all of these public broadcasting activities on a budget about two-thirds of the average Australian commercial television network.
On 2003-04 numbers, the ABC’s annual budget for television alone is less than a third of Channel Nine’s, 40 per cent of Seven’s and 58 per cent of Ten’s. These figures speak volumes about the desperate situation facing the ABC today. The filtration effect on programming is startling. In recent years, the development of first-run Australian drama has dropped from 103 hours to just 13. Last year, the Australian content on the ABC was around 43 hours—nowhere near the 200 hour mark which is the obligation of television broadcasters in Australia. There would no doubt be people in this country who have been listening to and watching the ABC for over 70 years. When the programming slips to such critical levels, people notice. People notice these things. Those who work at the ABC notice these changes too. Given the seriousness of these facts, it would come as no surprise that even the members of the board are very concerned about this issue.
In the board of directors’ statement in the ABC’s annual report of 2005 under the ‘financial sustainability’ heading it reads:
A growing gap now exists between the funding provided and that which is needed to maximise the potential of ABC programs ... in the new digital environment.
It goes on to say in the closing section of the board’s statement:
A critical point has been reached. Unless adequate funding is secured for the coming triennium, the Board will be faced with a range of fundamental questions about the extent and quality of ABC programming and services.
The board’s statement almost reads like an extract from what we could have expected from Burke and Wills’ diary: ‘Save us, and save us now, before it is too late!’ Last year the minister was generous enough to throw a small lifeline to the ABC when she commissioned KPMG to investigate and review funding adequacy and efficiency at the ABC. So the minister is obviously conscious of the problem. We now hear that the report did not exactly tell the minister what she wanted to hear. And, though the minister has had the report for some weeks, it still has not been released. I ask the government: when will you be prepared to release the report, or does the minister intend sitting on the report indefinitely?
Given the $417,000 of taxpayers’ money that the KPMG report cost, we can only presume that the government intends to use its findings in conjunction with the ABC’s submission in the May budget. This is the opportunity for the government to restore adequate funding to the ABC so that our ABC is able to deliver the high-quality news, current affairs and entertainment that the Australian public not only expect but deserve. The Australian public will be waiting for the outcome of that May budget.
It would, however, be unfair to suggest that the Howard government and Senator Coonan have not brainstormed some solutions to the funding crisis of the ABC. I refer to an interview in the Bulletin where Minister Coonan said she was considering including commercial advertising. The minister said when asked about advertising on the ABC:
... these are some of the things that I mean the board might like to look at—as to just what they want to do with advertising, what they want to do about commercialising ...
I would like to now refer you to the ABC Act, where in section 31 it states, ‘The corporation shall not broadcast advertisements.’ This suggestion that the board consider a change, which is clearly contradictory to the act, must be of concern to the Australian public.
At the last election the government promised to maintain its position on advertising prohibition for our national broadcaster. Is the Howard government going to honour this election promise, or is it a case of ‘Senate majority so we’ll push this one through too’? That is the first thing I would say about advertising. The second is, and this should be pretty obvious, the ABC has built its reputation as a unique, innovative, independent and diverse broadcaster largely due to the absence of commercial influence. Diversity and independence of institutions such as the ABC are critical elements in maintaining our culture, in maintaining our traditions and in showing newcomers to our land about the great features that make us a great society.
The ABC also has a significant role in observing the operation of government and reporting on this to the Australian public. This is an essential part of the main democratic principles that built our society. Without doubt, advertising on the ABC would eventually compromise its editorial independence. The mums and dads are already asking questions about what it would mean for ABC children’s television. How long would it be before we would find advertising sneaking into children’s programming? Our ABC with Coke and McDonald’s interrupting Play School and Bananas in Pyjamas every 10 minutes—not our ABC, Minister!
Only last Friday, the minister announced another move by the government to impose its influence on our ABC. Senator Coonan announced during the Commonwealth Games that the Howard government intended to abolish the position of staff-elected director on the board of the ABC. This position gives the staff at the ABC a presence within the board’s corporate governance. This position of staff-elected director gives the ABC board a vital insight into the operations of the day-to-day employees. Interestingly enough, in the 2001 report of the Senate Environment, Communications, Information Technology and the Arts References Committee entitled Methods of appointment to the ABC board, in response to a recommendation, government senators stated:
There has been no suggestion that the position of the staff-elected director will be abolished.
Now the government have changed their mind. It changed with the Senate majority. And, let us be clear, this is the one position left on the ABC board that the government cannot control. So if you cannot control it, what do you do if you are the Howard government? Answer: you get rid of it.
Labor believes that there should be an open and transparent process for making appointments to the ABC board. At the present time, the staff-elected position is the one position that fulfils this criterion. Today, Sydney performer and Alliance New South Wales secretary Penny Cook presented the minister with a 40,000-person petition seeking greater funding for the ABC. So great is the support from the public for increased funding for the ABC that it took only four days to acquire this significant response.
There is no doubt that community support for the ABC exists. Senator Eggleston told us that the ABC’s independence is guaranteed by the act. This is a fact. I have already stated the act also prohibits broadcast advertisements, but Senator Coonan has cast serious doubt on this continuing to be the case. Adequate funding would enable the Australian Broadcasting Corporation to deliver sufficient first-release Australian television drama, documentaries and children’s programming. It would enable it to deliver enhanced levels of local television and radio news, current affairs and sports coverage for people living in metropolitan, rural and remote areas. (Time expired)
I will just make an initial remark on some of the comments from the other side: again we are seeing an example of the Australian Labor Party bowing to their political masters. But I am not going to spend the next eight minutes confirming what is an obvious fact.
I read with interest today the editorial from the Age. It said, talking about the ABC:
It must be free to scrutinise critically government and civil society. It must be able to produce drama that expresses Australian life and should be able to cater for a broader range of interests than is covered by commercial networks.
Those are sentiments that I do not disagree with, but the words that I think should be in that editorial are ‘objectivity’ and ‘without bias’.
I noted with some interest comments from Senator Conroy in relation to people’s views of the ABC. I thought I would quickly advise the Senate of the obvious bias that is involved in the ABC—a matter that I have raised at Senate estimates before. It is clearly an ingrained and systemic problem at the ABC. Exemplifying this are the views of a former ABC TV Four Corners producer who, in a letter to the Age newspaper recently, wrote:
It is necessary and essential for the ABC to always be left of centre—whichever government is in power.
Those are undoubtedly views held by those within the ABC.
But I thought it would be of more interest, in the limited time available to me, to talk about a recent publication of the Melbourne University Press which included an independent study by the RMIT, Roy Morgan and the Reader on how journalists view the Australian media in terms of bias. In answer to the question ‘Which media outlet is the most biased?’ 25 per cent nominated the ABC. Twenty-five per cent of Australian journalists think that the ABC is the most biased media outlet in Australia, and, as a whole, Australian journalists rate the ABC as the second most biased media outlet.
The real issue today is about corporate governance and whether the Australian Labor Party is prepared to admit that the ABC should accept, as every other organisation and company throughout this country has accepted—quite rightly in my view and, I assume, in that of the Australian Labor Party—that good corporate governance underpins any organisation, whether it be a state owned organisation such as the ABC or whether it be a publicly listed or private company. Under this government, this country has insisted that we as a nation have appropriate corporate governance requirements, and a lot of this has come through the CLERP legislation. In fact we are now emphatic about it and, in my view, quite rightly so. It is not good corporate governance to argue that you should have a director on the ABC board who is representing sectional interests only. It is not appropriate and, under legislation passed by both chambers, that has been confirmed.
I am sure that one of my colleagues referred to the Uhrig review of 2003, which dealt with the corporate governance of statutory authorities and office holders and concluded:
… representational appointments can fail to produce … objective views. There is the potential for these appointments to be primarily concerned with the interests of those they represent, rather than the success of the entity they are responsible for governing.
Regrettably there is no greater example of that than one of the now retiring board members of the ABC who refused to sign a confidentiality agreement. Under the laws of this land, that particular board member actually had no choice about whether they maintained the confidentiality of the board. That was not an option. They were required to. What had happened was that this particular board member—who, quite frankly, I think had probably exposed herself to other matters—went out and breached board confidentiality, acknowledged the fact and refused point blank to tell that board that she would in the future maintain that confidentiality.
That is what corporate governance surely is about. Presumably—I do not know; I was not in the Senate at that stage—all the corporate governance legislation and the CLERP legislation under which some of it falls was supported by the Australian Labor Party. Are they turning around and telling us today that it is appropriate everywhere else except the ABC—that the ABC is quarantined from good corporate governance? That seriously cannot be the argument, but that is what it is. In a passionate desire to again support those who support them financially, they are prepared to throw out any requirements for good corporate governance, to support the ABC unions.
You’re just making this up.
If that is where you want to go, why don’t you just acknowledge it? Why do you think Maurice Newman resigned from the board? Maurice Newman resigned from the board because Maurice Newman could not be satisfied and was not confident that the matters that were discussed at that board would remain within that board.
I rather suspect there would be very few on the other side of the chamber who have actually sat on the board of a publicly listed company. I have. I sat on the corporate governance subcommittee of that company and I saw first hand, month after month, the corporate governance requirements of that publicly listed company.
Which one was it?
It was Berklee mufflers in Ballarat. That is on the public record and there are a lot of photos of me in directors’ reports, so I am not hiding anything. I was on that corporate governance committee and I can tell you now that the corporate governance requirements for that company and for companies throughout this country do not entitle you to have a sectional interest representative. It begs the question: if it is so important for the ABC, why wasn’t it so important for SBS? Why didn’t you insist on it with SBS? (Time expired)
I rise today to support the motion moved by Senator Conroy concerning the independence of the Australian Broadcasting Corporation. For all the shouting of Senator Ronaldson I hardly think someone with broadcast experience being on the board of the Australian Broadcasting Corporation can be described as a sectional interest. It is a novel idea that the only person left on the board with broadcasting experience should be determined to be a person with a sectional interest.
It is very clear that under this government—under the Howard government—the ABC has been seen as one of the last stalwarts of our democracy. That is because the ABC does reflect some sort of critical assessment of our democracy and civil society, and for that crime—for being a bulwark for public service values, for being a bulwark for the community and for the values that Australia holds dear: freedom of speech, independent opinion, fairness, tolerance and justice—it is deemed to be biased. It is because the Howard government regards the ABC as being biased—because it does not share the values of the Howard government—that there has been this attack on the ABC and the removal of the staff representative from the board.
This has been a systemic attack since the Howard government came to power, beginning with reducing funding which has meant that there has been a retreat from the regions. We have lost the capacity for the ABC to broadcast news from the regions, especially at weekends. There has been a move which has resulted in the reduction of hours of Australian drama on the ABC, and the reduction in funding has meant the removal of the last independent person on the board. This will make way for the government to introduce advertising to the ABC which, in turn, will lead to the advertising and promotion of junk food, big car advertisements and all the advertisements of corporate Australia, which will undermine the capacity of the ABC to do its job, which is, in fact, to provide some independent journalism in Australia.
The abhorrent thing with the Howard government is that the very people who stand with the flag, who wear the wattle and who swear that they are the one and true upholders of the nation are the ones who have systemically undermined the independence and the traditions of every single institution from the judiciary through to the ABC. That is precisely what is going on here with this government attack on the ABC. We all know that in the new digital environment the capacity to broadcast and multichannel is going to be very expensive and so, by giving the ABC the right to do it and then taking away the funding capacity to do it, this is the Howard government’s way of undermining the capacity of the ABC to cover the media landscape that is required to give effect to its charter—to inform the country and be a national broadcaster for all Australians.
The ABC is our ABC. It belongs to the people. It does not belong to the Howard government but worse still, it does not belong to the radical philosophy of the Howard government which has led to this huge gap between the rich and the poor in this country, which has seen a bias in favour of privatisation and individualism, a loss of interest in the public interest and of acting in the public interest. The ABC acts in the public interest. The independent board member—the staff representative—should remain on that board and the government should desist from badgering and intimidating people associated with the ABC and accusing them of bias.
If there is a bias in this country it is the bias that the Howard government brings to all our national institutions and undermines our strength in terms of freedom of speech and freedom of association in this country. I want the ABC to stay independent. I want it to stay as our national broadcaster reflecting this whole country and not be forced into commercial advertising like other commercial television in this country. I want it to be what the Australian community wants it to be, and that is the voice of Australia, not the voice of the narrow values of the Howard government.
I must say I have been absolutely astonished by some of the submissions from the other side and from the crossbenches. I understand that they are trying to make the argument that this government is continuing its attempts to undermine the independence of the ABC. We have had phrases like ‘deep and abiding hatred,’ and ‘Donald McDonald is hated by cabinet’. A federal cabinet minister, Amanda Vanstone, was sitting right here and she said, ‘Not by me.’ Of course there is no evidence to support this. This is just conjecture—the normal rubbish of those people who are just trying to wage some pathetic, desperate attempt to undermine the Howard government’s excellent record in most areas.
People talk generally about significant taxpayer funding. I remind this place that in the triennium 2003-06, $2.3 billion was provided, and $793 million was provided this year. We provided an extra $4.2 million over and above what we extended—a bonus. We have assisted the ABC in every way, particularly with the increase in program purchasing funding which actually went up to $54 million over the last three years. It is ironic that those on the other side should stand in this place and somehow make the tie between removing the independence of the ABC and a lack of funding. The single largest drop in the funding for the ABC was in the late eighties and nineties and that happened under Labor.
I would have to concede that, if you look closely at the history, in 1996 there was a drop in funding for the ABC under this government—as there was across every single agency to try to deal effectively with the black hole, economically, that was left by the Labor government. I concede that. But from that point, historically, the funding for the ABC has continued to grow and in fact, right at the moment, it enjoys a level that it never enjoyed under the Labor Party.
We talked about a review. People have been spinning these reviews around the place here today. We have had a review. We constantly review particularly the efficiency and adequacy of funding. It is interesting to note statements about independence. We actually ensured that the terms of reference were drafted in consultation with the ABC. We ensured that we consulted with this particular broadcaster and that the terms of reference were what they considered appropriate to consider the adequacy and efficiency of that funding. We engaged an external consultant from KPMG. Again, we have propriety, transparency and facts rather than silly and fatuous conjecture from the other side.
It’s secret! When are we going to see it?
The review will be announced in time. Of course, this will take into account ABC’s 2006-07 funding. Those on the other side may notice the date—it is not around the time that one would normally make those announcements, which is towards the end of June, but watch this space. The minister has said time and time again—and he has proved to be correct—and, since 1996, this government has said time and time again that the ABC will not lose funding.
We have from the other side this very poor argument, I have to say, that somehow getting rid of a staff-elected director undermines the independence of the ABC. There have been a number of independent reviews. We have already heard about the Uhrig review from my colleague Senator Ronaldson. I will quote from it. This is an independent review about good governance. It says:
... representational appointments can fail to produce ... objective views. There is the potential for these appointments to be primarily concerned with the interests of those they represent, rather than the success of the entity they are responsible for governing.
I have no problems with that at all. In fact, I can see the difficulty. If I were elected to represent the staff, that is what I should be doing there. Clearly, there would be a conflict of interest. If I were elected to represent the staff of the ABC, my view would be that I should represent their interests and not those of the body I should be representing—that is, the entire board of the ABC. That is why we have such governance arrangements in place. We can ensure that this conflict of interest cannot continue.
Of course, in that environment we had people like Maurice Newman. Mr Newman has resigned. Mr Newman, I would have thought, had a fair bit of credibility in terms of good corporate governance. At the time I understand that he was chairman of the Australian Stock Exchange. That is not something that you would say was just a small organisation which turned over the odd buck. You would have to be very cognisant of the propriety of those processes. Of course, he had to resign simply because he will not be associated with an organisation that cannot show that transparency and good governance. He has a reputation to uphold. So he got out. I can tell you now and I can advise those on the other side that you cannot come by people of that calibre every day. People on the other side are saying that somehow someone of that calibre is a government crony or someone we ring in. Decrying the good name of those sorts of people does neither them nor the people they accuse of poor behaviour any good.
This whole notion that you actually need an elected board member is just absolute nonsense. The managing director of the ABC is the managing director. We have had Senator Conroy on the other side say that the elected director is the only person who can have any clue about broadcasting or the ABC and how it runs. Of course, the facts of the matter are deliberately ignored. I think this is completely misleading. On the ABC board in fact we do have the managing director. The managing director has full knowledge of those matters. He is always a conduit between staff, management and the board.
I think that this line of debate, which has somehow tried to put forward this notion that the government has undermined the independence of the ABC, has fallen absolutely flat on its face. We have ensured that we have maintained the independence of the ABC by ensuring that there are no sectoral interests there to control it. Those people who are on that board are not there to look after the interests of a sectoral group. They are paid by the Australian people to look after their interests and that is what they should do. In terms of the commercialisation of the ABC, all I would say is that you should not look to this side; you should look to history. The Labor Party is on very shaky ground. In 1991, with the SBS Act, they were the ones to introduce limited advertising on SBS.
Order! The time for the debate has expired.
by leave—The division on general business notice of motion No. 403 was in fact called at two minutes past four. Unfortunately, I did not look at the clock before I did the pairs list. Two of our cabinet ministers were in fact paired from four o’clock. As I have explained to Senator Brown, they were not listed as paired because, with all of those divisions, I did not notice that we had passed four o’clock. We are asking that the motion be put again to enable a vote which reflects the will of the Senate.
by leave—Well, the clock does tick over. Of course, as mover of the motion, I want to see a vote which reflects the will of the Senate and I will allow a recommittal. But what a failure this is by the coalition, which has the majority in the Senate! What a particular snub it is to Aboriginal Australia that the government should take its eye off the ball, forget about the clock ticking over and fail to have the numbers in here so that accidentally a motion gets through requiring this government to take responsibility for Indigenous cultural icons in this country! We are talking here about ancient stone carvings on the Tarkine coastline of Tasmania which were vandalised by rednecks. They took drills into the area around Christmas and crossed out these ancient circles which some say are as old as Stonehenge or the pyramids.
Order! Senator Brown, please avoid debating the motion and restrict your remarks to debating the statement.
Of course I shall. It is an extraordinarily serious matter, which I brought to the attention of the Senate because it is of national significance. The problem here—and let me get right to the chase—is that the government did not want clause (e), which reads:
... the Senate ... asks the Commonwealth to take all due action to uphold the Burra Charter—
the international charter for the protection of cultural sites, and:
... to bring those responsible for this outrage to justice and to prevent any recurrence of such destructive behaviour against Australia’s heritage.
The office of the Minister for the Environment and Heritage, Senator Ian Campbell, contacted me a number of times this morning to ask me not to persist with that clause. This national government felt that its responsibility for protecting extremely important, world heritage value Aboriginal art sites should not be expressed in the Senate. Yet the minister got a pair this afternoon and was away when this vote was taken.
Mr Acting Deputy President, on a point of order: Senator Brown is debating the substance of the statement. He was given leave to make a short statement and he is breaching both of those conditions with this continued address.
I accept that point of order. Senator Brown, please restrict your remarks to the statement made.
There should be a debate on this. The government should have brought on a debate. It should have been scandalised by what has happened in Tasmania, and the Minister for the Environment and Heritage should not have been paired for this; he should have been here to debate it—but he was not.
Mr Acting Deputy President, on a point of order: the minister was paired because he was at a cabinet meeting. As I have explained to the Senate, it was two minutes past the moment that he was paired. It had nothing to do with whether or not he believes that this is an important matter. I think Senator Brown knows that, so it is improper of him to mislead the Senate in that way.
There is no point of order. Senator Brown, I must ask you to conclude your remarks. You were given leave for a short statement.
I ask you to allow me to make that statement adequately, Mr Acting Deputy President. I have been in this chamber long enough to have seen this exact same debate in the past, in which senators have failed to be here when they ought to have been for a vote and there has been a very long debate. I do not want this truncated today.
Mr Acting Deputy President, on a point of order: the two ministers we are referring to in fact should not have been here. As Senator Brown knows, they were paired from two minutes before, so it is improper to suggest that they were not here when they should have been. They were already paired. The mistake was mine; not theirs.
There is no point of order. Senator Brown, please conclude your statement.
I agree that there is no point of order. This is a total failure by the government, and the minister compounds it by saying that a cabinet meeting takes precedence over the sitting of this Senate. That is a constitutional impertinence by this government: that it cannot have its cabinet meetings at proper times without disrupting the proper debate in this parliament. This minister and this government failed this afternoon. It failed this nation, it failed the Indigenous people and it failed this nation’s heritage because it did not care about that. It was absent when it should have been here for the vote. What a failure by this government. What an indignity for the government. But that is not what matters—it is the slight on Indigenous Australia and its cultural heritage that the government not only did not care enough to be here to vote but also did not care enough to vote for this motion. Now it wants to vote down the motion to protect this area in the future.
Mr Acting Deputy President, on a point of order: you have asked Senator Brown to conclude his remarks and he is wilfully disobeying your request. I raise the point of order again that, by doing so, Senator Brown is canvassing your direction by his disobedience of it. I really think he must now conclude.
There is no point of order, but, Senator Brown, the point has been made that a courtesy was extended to you, as you extended a courtesy to the whip, and I have asked you to conclude. You did make a commitment for a short statement.
Mr Acting Deputy President, I ask you to note that had I not given Senator Ferris leave, we would have had a full debate in here this afternoon. So the courtesy that I have given to the government is far greater than any extended in my direction. In concluding, I note that we will now see the government vote down this motion about its responsibility to these ancient rock carvings on the Tarkine coast of Tasmania.
In respect to the position of the opposition, we accept that the will of the Senate needs to prevail at the end of the day. We thank Senator Ferris for coming into the chamber and explaining what happened. It is a situation we accept can happen from time to time. But it has not always been the situation where the government has come in and given us an explanation. If my memory serves me correctly, last time this happened, on 2 March, we were given no explanation. There was just a motion to recommit a vote. That has not happened this time. We thank the government for that, but there is clearly an expectation from the opposition that if these occurrences happen in the future that there will be a proper and full explanation given to the Senate before the Senate is put to the difficulty of recommitting a vote.
In concluding, Mr Acting Deputy President, I did speak with Senator Brown and also with the opposition whip Senator George Campbell. So this was done in consultation.
Senator Ferris, you need to recommit the vote.
I seek leave to revisit notice of motion No. 403 and to recommit to a vote the motion standing in the name of Senator Brown relating to Tarkine Aboriginal rock art.
Leave granted.
Question put:
That the motion (That the motion () be agreed to.
In accordance with the provisions of the Auditor-General Act 1997, I present the following report of the Auditor-General: Report No. 35 of 2005-06: Performance audit: the Australian Taxation Office’s administration of activity statement high risk refunds.
In accordance with the provisions of the Parliament Act 1974, I present a proposal for works within the Parliamentary Zone, together with supporting documentation, relating to the construction of the National Portrait Gallery. I seek leave to give a notice of motion in relation to the proposal.
Leave granted.
I give notice that, on Thursday, 30 March 2006, I shall move:
That, in accordance with section 5 of the Parliament Act 1974, the Senate approves the proposal by the National Capital Authority for capital works within the Parliamentary Zone, being the construction of the National Portrait Gallery.
I seek leave to make a statement in relation to this matter.
Leave granted.
For the information of senators, a display illustrating the full scope and design of the proposed works and their impact on the Parliamentary Zone will be located outside committee room 2S3 until 5 pm, Wednesday, 29 March 2006.
On behalf of the Chair of the Community Affairs Legislation Committee, Senator Humphries, I present correspondence and additional information received by the committee on its inquiry into the Therapeutic Goods Amendment (Repeal of Ministerial responsibility for approval of RU486) Bill 2005 [2006].
On behalf of the Chair of the Economics Legislation Committee, Senator Brandis, I present additional information received by the committee relating to the supplementary hearings on the 2003-04 budget estimates, and hearings on the 2004-05 budget estimates.
On behalf of the Joint Standing Committee on Treaties, I present the 72nd report of the committee, entitled Treaties tabled on 29 November 2005 (2). I seek leave to move a motion in relation to the report.
Leave granted.
I move:
That the Senate take note of the report.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
The President has received letters from a senator and a party leader seeking to vary the membership of committees.
by leave—I move:
That senators be discharged from and appointed to committees as follows:
Intelligence and Security—Joint Statutory Committee—
Discharged—Senator McGauran
National Capital and External Territories—Joint Standing Committee—
Discharged—Senator Crossin
Appointed—Senator Carr.
Question agreed to.
Message received from the House of Representatives informing the Senate of the appointment of Mr Adams, Mr Hatton and Mr BP O’Connor to the Joint Standing Committee on the Parliamentary Library.
Message from His Excellency the Governor-General was reported informing the Senate that he had assented to the bills.
As chair of the committee, I present the report of the Environment, Communications, Information Technology and the Arts References Committee entitled Living with salinity—a report on progress: the extent and economic impact of salinity in Australia, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
I seek leave to move a motion in relation to the report.
Leave granted.
I move:
That the Senate take note of the report.
Firstly, I would like to note that this report is the result of a motion agreed to by the Senate on 17 March last year, so it is just over one year ago. In that period of time, there has been a significant amount of change in the membership of the committee. That has meant that more senators have had experience and had their eyes opened to the issues of salinity and the ongoing issues that need to be addressed. It has also created extra challenges for the secretariat in ensuring the continuity of understanding of the issues raised. I would particularly like to thank the workers in the secretariat, as always, for their professionalism and their ability in getting this report together. I would also like to note the work of the senators who came along, particularly in the second half of the inquiry, and really pulled together a lot of information from submissions and public hearings. It is important to emphasise up-front that this is a unanimous inquiry. The point is made from time to time by government ministers in dismissing reports that they are partisan, that they are point-scoring and that they are just seeking to take political advantage. I hope that there is genuine seriousness from the government in absorbing this report and responding promptly and positively to the recommendations within it, because it is unanimous.
The committee consisted not just of me as a Democrat in the chair but also of Labor, Liberal and Greens senators all working together to try to produce a strong report that will build on the positive work that has been done in this area to date. I believe we have done that. I would like to thank the other senators involved in the committee, particularly the deputy chair, Liberal Senator Judith Adams, a Western Australian from the wheatbelt who therefore knows a lot about salinity, at least how it affects wheat growers in Western Australia. We had the opportunity to inspect part of that region. I would also like to extend the thanks of the committee to all those who helped in the field visits and organising hearings, because that certainly contributed to the value of the experience. One of the things that became clear to me and the committee over the course of the inquiry was that the nature of salinity and the ways to address it vary significantly from region to region and that the ability to tailor research and solutions to different regions is something we need to do better.
If I had to summarise in my own words or give a very brief snapshot of progress in dealing with salinity I would say: we are doing okay but we can certainly do better. We need to get more value from the dollars that are spent. We need to get more certainty about that funding and continuity of funding. We need better coordination of the research, better sharing of the knowledge and the ability to apply it in different ways at the regional level. We also need to do more to ensure we do not keep maintaining some of the behaviours that are exacerbating the problem. The report is titled Living with salinity precisely because we need to acknowledge more clearly that salinity is part of the Australian environment and something that we have to learn to live with much better than we have. There has been improvement but there is room for more. One thing I believe we certainly have to do is to not keep repeating the mistakes of the past.
The committee has produced 23 recommendations aimed at ensuring that further strong progress is made in addressing the economic and environmental consequences of salinity. One of those recommendations is to seek greater assurance, through the Natural Resource Management Ministerial Council, that the states and territories are doing better at effectively regulating land clearing and that extensions to the national action plan funding be conditional on the states and territories meeting more rigorous accountability measures in this and other areas. There is no point in taxpayers putting up significant amounts of money or, for that matter, industries or local councils or in everybody contributing their voluntary labour to try and address the issue of salinity if people are allowed to continue the sorts of behaviours that keep maintaining the problem.
This also applies to another area where the committee believes more attention is needed than has occurred to date, and that is the issue of urban salinity. The committee has described urban salinity as ‘a sleeping giant’ in the title of the chapter relating to that issue, or a potential sleeping giant—there is a question mark in the title: ‘Urban salinity: a sleeping giant?’ It is clear that the programs that have been developed to date, whilst mentioning urban salinity, do not give it sufficient priority. Perhaps more importantly, it is also clear that many authorities are simply not aware of or not fully informed of the issues of urban salinity, some of the reasons behind it and the enormous costs that it can cause. This is something we need to do more about now, for the reason I have just mentioned—that we do not want to be putting money into addressing salinity if activities are still occurring that exacerbate the problem.
We have recommended that the very effective salinity mapping that has been occurring in recent times needs to be conducted in areas where salinity is known to be a potential hazard before further urban development is approved in those areas. Decisions made today will affect the next generation. The cost of repairing the damage from urban salinity, whether it is to housing or, more immediately, to infrastructure such as roads, pipes and other underground and aboveground infrastructure, can be quite enormous. It is a cost that will be borne by the next generation—by local councils and state and federal governments in 20 or 30 years time, by the taxpayer and the public more broadly—if decisions are allowed to be made today that ignore those potential consequences. That is a key area where more action is needed.
In all the recommendations by the committee there is no suggestion that this is all brand new, that we have discovered all this for ourselves or that nothing has happened to date. The report is specifically and deliberately called A report on progress. Under its terms of reference the inquiry was set up to look at progress made to date, including what had happened since the House of Representatives committee inquiry into this area in 2004. There has been progress, but there certainly needs to be improvement.
The other areas that the committee emphasised included the need to extend funding for the National Action Plan for Salinity and Water Quality and the Natural Heritage Trust to ensure that people can do the long-term planning that is needed. As with many areas, this is as much about government’s role of enabling the community to address the problems. They can best do that, because in the end it will be up to the community—whether it is agricultural producers, local government authorities, landholders or the community more widely—to address this issue and to do the work that needs to be done. The role of government is to provide the resources, to ensure that coordination occurs effectively and to assist people to be able to do that. Something that needs to be done in that area is to ensure continuity, certainty and adequacy of funding. But it is also important to do more to try and provide ways for private investment to occur in these areas, and we recommend that examination be given to opening that up further.
There was a lot of comment during the inquiry about the need for an independent body to coordinate salinity research, to maintain a focus on dryland irrigation and urban salinity, to identify and prioritise gaps in research and leverage research from existing providers, to provide a sort of one-stop shop for salinity research and information and to have a website that provides a gateway for all relevant research. There is a lot of great science being done out there, but it is not necessarily all getting through to the people who need to know about it. So there are still lots of areas for improvement. I recommend this report to anybody interested in this issue. I particularly urge the minister and the government to respond to it positively and promptly. The committee put a lot of effort into trying to ensure that this was a unanimous report that focused on what things could be done quickly to produce strong results for the community. It would be very disappointing for the Senate and, I would suggest, a slap in the face for all those people who put their time into providing evidence and submissions—in some cases, driving very long distances to make sure their expertise was provided—if the government does not respond quickly.
I would also like to comment on the report of the Senate Environment, Communications, Information Technology and the Arts References Committee. I was a participating and active member of this committee, and I must say it was refreshing to work on a committee where there was a bipartisan commitment to solving this important issue. I also should note that there were three very active Western Australian senators on this committee, which I think indicates the depth of interest and concern about this issue in Western Australia. Of course, it is an important issue around Australia. It is a huge challenge, and the report outlines the extent of the problem. It is a problem where there are no easy answers and no quick fixes. It requires cooperation and coordination on a huge scale over a very long time to slowly turn this problem around. It impacts on many aspects of the daily lives of Australians: our water resources, the production of food and fibre, how long our water heaters and washing machines last, how often we have to fix our roads and rails, and the biodiversity of our rivers, wetlands and low-lying bushland.
In recent months we have heard stories about how the extent of areas at risk of salinity now seems smaller than we were once told, which implies that maybe there is less cause for concern. As more detailed mapping of areas potentially threatened by rising saline watertables is undertaken, our knowledge of which parts of the landscape are likely to be damaged by salinity has improved and the extent of land at risk has been revised down. However, at the same time, a better understanding of the hydrological processes of these landscapes and better data on the impacts of different interventions on ground water recharge have led us to revise up the amount of intervention required and the time it will take to have a measurable effect.
So, while the area has been revised down somewhat, we have come to appreciate that the level of intervention required to address salinity is much higher in many places. We now have a much better understanding of where in the landscape we need to target our efforts, and we can work out how long it takes the water to move through the landscape in local, intermediate and regional ground water systems. In some cases we are talking about 20, 50 or 100 years between the rain falling on the slopes and the salty water discharging into the streams at the bottom of a catchment. What we can do now is prioritise the investment of our limited resources in those areas that will make the biggest difference. This targeted investment is now one of our biggest challenges through the national salinity action plan, NHT2, and hopefully NHT3 in the future. It is important that we do not do what in WA we call the ‘vegemite approach’, which is to just spread our limited resources very thinly over the landscape without targeting them properly.
We heard in the hearings of the Salinity Investment Framework, and it is listed in the report. We are now up to the third version of that. I am very proud to say that the Salinity Investment Framework came out of Western Australia. It talks about identifying priority assets, whether they are biodiversity, our towns, our infrastructure, our water resources or, of course, our agricultural land. What are the community values and what intervention tools do we have? What solutions do we have, and what is the likelihood of their success? In other words, how can we get the most bang for our buck?
So the targeting and prioritisation of limited resources is one of our biggest challenges. However, we have an even greater challenge, and that is that in many parts of these landscapes we do not have the answers yet. This is a critical point. For many of our problem areas we do not yet have the kind of large-scale economically viable solutions that we need to make a difference. This has been one of the major concerns we have heard about through the national action plan, which we call the NAP. For all the good work that has been done in developing a regional approach and identifying priority catchments, there has been an underlying assumption that all we needed to do was get the money out there effectively on the ground and that would do the job. Unfortunately, it does not. We need national coordination of research and ways of getting the research into national decision making. Most importantly, we need research into developing new industries.
There is very good ongoing work to make existing industries more sustainable. The Sustainable Grazing on Saline Lands project is an excellent example, and there are many more. All existing work on existing systems is very important, but this is only part of the solution. There is only so far we can go in making existing industries be sustainable and use water efficiently. We need new industries. We need to develop new systems for large areas of Australia where we have a pressing problem with unused rainfall contributing to rising watertables with no real solution at hand. This is why it is absolutely critical that we put effort into developing new landscape scale sustainable industries. Unfortunately, this is a very big ask and it is not something that is fitted easily into the current framework of NAP or NHT2. What is required to develop new industries from the ground up are big, clearly focused research and development programs to develop new technologies and land use systems, support and incentives for land managers to try out and adopt new production techniques, and then serious partnerships with venture capital to develop these industries.
I would like to draw your attention to the best example of this we have to date, which is the integrated mallee processing plant in Narrogin in Western Australia. Based on oil mallees planted for salinity control, it produces such things as eucalyptus oil and chips for wood products. It puts trees in the ground and then the biomass of plant residue produces energy. Many groups in Western Australia have put a lot of effort into developing this plant. They have supported it and lobbied for it over a long period of time. This is particularly timely for at this stage, as I understand it, if no urgent action is taken on this issue this week it is likely that 15 years of research and development and over $20 million of public money will be wasted when Western Power pulls the plug—sorry to use a pun—on this project a few months short of the finalisation of the economic feasibility study currently being completed. As I understand it, it was always known that this was only a trial plant, but, because of delays in starting and getting the equipment working properly, the feasibility study has not been adequately completed to provide the results to assess this proposal. I am extremely worried that conclusions will be reached about the success of this project without putting in the additional funding that is required to do this properly.
I believe that, if we are truly to develop new industries in this country for sustainable agriculture and to deal with sustainable natural resource management problems, we need to commit to long-term funding and see through the things that we start. This is particularly important for this plant, given that so many of our hopes and dreams for a sustainable landscape ride on this plant.
I am also deeply concerned that people try to pick winners in the salinity issue. As I said before, there are no easy answers to this. I am deeply concerned that the Minister for the Environment and Heritage was recently quoted in the paper as heavily supporting drainage as a solution to salinity. I have absolutely no doubt that engineering solutions, as they are more commonly referred to now, play a part in dealing with salinity. I was not on that particular tour in WA but many times in WA I have seen effective drainage programs. I have also seen those that contribute negatively to the environment and the landscape. I believe that engineering solutions have an important part to play but they are not the be-all and end-all. I would hate to see millions of dollars wasted on unsustainable solutions.
I commend this report to the parliament. As I said, it was a pleasure to work on a committee where so many people were committed to a bipartisan outcome to an issue that we know affects millions of Australians and, if unchecked, will destroy biodiversity across this country.
This report is based on an inquiry into the extent and economic impact of salinity and the long-term success of federal programs dealing with the issue. In my first speech to the Senate I highlighted the issue of salinity, which is a major concern to many areas in the Western Australian wheat belt. Living in the great southern region of Western Australia, an area which is being continually threatened by salinity and a rising watertable, has given me a first-hand knowledge of the severity of these issues.
I was delighted to be given the opportunity to become a member of the Environment, Communications, Information Technology and the Arts References Committee, ECITA, inquiry to look into the impact of salinity throughout Australia. The committee received 50 written submissions and a large number of tabled documents and additional information. Two hearings were held in Canberra and the committee travelled to Sydney, Adelaide, Wagga Wagga, Perth and the Avon Catchment situated in the Western Australian wheat belt. I believe this unanimous report containing 23 recommendations will be of great benefit in ensuring that further strong progress is made in addressing the economic and environmental consequences of salinity.
As I said in my first speech, there is no one-size-fits-all solution when dealing with salinity over such a large and diverse area. The costs imposed on landholders, governments and residents of rural towns as a result of the effects of salinity on infrastructure, water quality, productive land, biodiversity, remnant vegetation and conservation reserves was identified as significant. The loss in profits for the agricultural sector in Western Australia was estimated at between $80 million and $260 million per year. The cost of dryland salinity in eight tributary valleys of the Murray-Darling Basin is approximately $247 million per year. The cost of salinity to consumptive users of Murray River water totals $47 million per year. In Wagga Wagga, the damage to infrastructure in the town would amount to $180 million over 30 years, with some residents already spending up to $20,000 to repair their homes.
Turning now to salinity management in Australia, the measures the Australian government is applying to the salinity problem include research and development, making direct on-ground interventions and developing timely information on salinity. By building capacity in collaboration with the states and territories the Australian government is dealing with salinity through a wide range of initiatives and a range of research and development bodies.
The three main programs administered at the Commonwealth level to tackle salinity and other national resource management issues are the National Action Plan for Salinity and Water Quality, NAP; the Natural Heritage Trust, NHT; and the National Landcare Program, NLP. The NAP is directed at improving salinity and water quality conditions in the Australian environment whilst the NHT is focused on the protection and sustainable use of Australia’s land, water and marine resources. The NLP focus is on ensuring sustainable agricultural practices and providing support to landholders at a local level. The Natural Resource Management Ministerial Council oversees the development and implementation of these national natural resource management programs.
I am convinced that communities and committees right across Australia will need to work cooperatively to overcome this problem. In many communities this could mean adopting a new approach and a new mind set and putting aside differences of opinion about funding issues and how salinity can be tackled to find a consensus about these things. I believe local government also has a pivotal role to play in bringing this consensus about.
As we moved around the different states, it seemed that urban salinity had been forgotten. I think it is important, and I and other members of the committee raised this issue. I have an example of urban salinity and some projects in Western Australia. In Western Australia, salinity affects a large number of rural towns and there are 38 towns involved in the state’s Rural Towns Program. Katanning and Wagin are two of these towns and they are close to where I live.
The committee heard that a program to manage urban or townsite salinity had been underway in Western Australia for a number of years. The Rural Towns Program was established in 1997 and it is administered by the Western Australian Department of Agriculture. The program is supported by a 12-member management committee comprised of six government representatives and six local government/rural sector representatives. The purpose of the program is to assist communities in managing town site salinity. A total of 38 towns and communities are involved in the project.
There is also another project: the Rural Towns Liquid Assets project is being run over three years. This is a partnership between the Department of Agriculture, local government, the CSIRO and regional catchment councils. The project aims to demonstrate how to control town site salinity and produce returns from saline ground water production.
The objectives of the project are: to protect town site infrastructure from salinity; to protect remaining biodiversity areas in or adjacent to towns; to produce a model for integrated town water management; to develop alternative new supplies plus recycled water schemes; to reduce reliance on scheme water in towns; to foster high-value industries using new water supplies; and to promote local ownership of water resource management issues.
The total cost of the project is $6 million. The Department of Agriculture has committed $1.5 million in cash and $500,000 in in-kind contributions. A total of $1.5 million through regional catchment councils’ NAP funds will be sought. A total of $1.5 million will be sought from local governments. Other partners will make in-kind contributions.
In closing I would like to thank the secretariat, all the witnesses who came forward and my fellow committee members. I know it has been said that it was such a bipartisan committee. We all worked very well together. There was no problem insofar as which party we belonged to. I think that this was an example of how many other committees can work to achieve a result, as we have. In commending the committee report I hope that it will be taken up and some of our recommendations will be implemented, because it is the only way forward to deal with this severe issue.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Pursuant to order and at the request of the chairs of the respective committees, I present reports from various legislation committees in respect of the 2005-06 additional estimates, together with the Hansard record of the committees’ proceedings and documents received by certain committees.
Ordered that the reports be printed.
On behalf of the Chair of the Finance and Public Administration Legislation Committee, Senator Mason, I present the report of the committee on the provisions of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005 together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
I move:
That government business order of the day No. 2 (Family Law Amendment (Shared Parental Responsibility) Bill 2005) be postponed till a later hour of the day.
Question agreed to.
Debate resumed from 1 March, on motion by Senator Kemp:
That this bill be now read a second time.
(Quorum formed)
I rise to speak on the Telecommunications (Interception) Amendment Bill 2006. The bill currently before us introduces a range of amendments to the Telecommunications (Interception) Act and the bill aims in part to implement the recommendations arising from the Blunn review into the telecommunications interception regime. Perhaps it is worth providing a recent snapshot of how it got to this place. I might make some preliminary remarks on the history of the bill for the benefit of the record.
Since 2002, the parliament has struggled four times with the issue of stored communication—that is, emails and the like. The contentious provisions in the Telecommunications Interception Legislation Amendment Bill 2002 were withdrawn after the Senate legal and constitutional committee recommended against their inclusion. In 2004, some two years later, the contentious provisions of the 2002 bill made a return, and during the committee hearing on this bill it became apparent that the Australian Federal Police were using, surprisingly, section 3L of the Crimes Act for warrants to intercept stored communication material from internet service providers—or ISPs. Such was the difference of opinion between the AFP and the Attorney-General’s Department on this matter that the committee recommended the stored communication regime be deferred until there was some ‘joint ticket’ from the government in respect of how stored communications would be dealt with.
The final result was that the committee recommended that an independent review of the act occur and imposed a sunset clause on the AFP use of general warrants to access stored communication. The original 2004 bill was thus not pursued by the government at that time. But, subsequently, the government came back to parliament with another 2004 bill that implemented in part the committee’s recommendation—that is, that the status quo would remain whilst a review took place.
The 12 months imposed by the sunset clause was long enough for Mr Anthony Blunn AO to conclude his review but not long enough for the government to finalise the subsequent legislation. A further six-month extension was granted by the Telecommunications (Interception) Amendment Bill 2005, which this parliament agreed to. That extension expires in June of this year, and clearly that is why we are having the debate now. The time line is that this bill, as the government claims, needs to be put through parliament this week. There is only the May sitting before we end up in June, when the present sunset clause would kick in. Therefore, at present we have a temporary solution to the issue of stored communication and, perhaps, the status quo—the unsatisfactory status quo regarding the difference of opinion between the AFP and the Attorney-General.
From Labor’s point of view, the present situation of dealing with such communication is unsatisfactory. Email and SMS messages are able to be intercepted by the general Crimes Act warrant under section 3L. Labor strongly believes in tougher safeguards than are presently available. As it stands, we effectively have a stopgap measure that will fall over when this clause expires in mid-June, and clearly this parliament does need to act on this issue before that is reached.
Turning to the Blunn review, it provided a review of not only the telecommunications interception regime but also the range of circumstances around it. The bill before us today therefore seeks to implement a number of the recommendations of the Blunn review—but not all of them, because this bill does not represent the total sum of the reform recommended by Blunn. Clearly, this will be an issue that will need to be revisited in the future, and perhaps the not too distant future. What is before us today is, it seems, as much as the Attorney-General could put together, given the deadline to have this bill passed, assented to and proclaimed before the sunset provision kicks in.
Blunn’s main findings included:
the protection of privacy should continue to be a fundamental consideration in, and the starting point for, any legislation providing access to telecommunications for security and law enforcement purposes;
access to telecommunications data is, and for the foreseeable future will remain, fundamental to effective security and law enforcement;
That was the prime starting point when Labor considered this bill—privacy and law enforcement access.
One of the more problematic areas, perhaps the most problematic in terms of the comments on this bill, is B-party intercepts—that is, an intercept of an innocent party or a nonsuspect who is in regular communication with a person of interest. It seems that B-party intercepts are permitted under the current law. It seems their validity under the existing Telecommunications (Interception) Act was established in the full Federal Court decision of John Flanagan v Commissioner of the Australian Federal Police. There are of course arguments as to whether that might be good or bad law or whether this case might be followed by another full Federal Court or a High Court decision at some later point. However, until that happens, it remains conjecture, and I am not going to give my view on that. Although B-party interceptions have not been used since the Flanagan case in 1995, that has been a matter of policy and not of law. Should the government of the day change that policy, it seems it could rely on that decision.
The independent reviewer of B-party communications, Mr Anthony Blunn, recommended:
... the Interception Act be amended to make it clear that B-Party services may be intercepted in limited and controlled circumstances.
That is what this bill seeks to do and, in making that point, it also ensures the point of last resort to law enforcement agencies for the use of B-party intercepts. This intention must be made clear to the courts, the public and law enforcement agencies, including ASIO. As a responsible party, Labor will take this opportunity to limit the use of B-party intercepts. We have to ensure that the issue is carefully examined. It has had the opportunity of going through the legal and constitutional committee, and a number of recommendations have been made from that.
We will also take the opportunity in committee stage—which it seems will be tonight—to ensure that there are sufficient safeguards to give effect to the Blunn review recommendation that B-party intercepts be utilised in limited and controlled circumstances. Labor is not satisfied that B-party intercepts are currently only used safely and responsibly with the appropriate privacy controls and safeguards. It is important that amendments are moved to ensure that they are used safely and responsibly with the appropriate privacy controls and safeguards, and Labor will ensure this. The bill also contains technical measures, set out in schedules 4 to 6, that will amalgamate two different classes of offences, remove a redundant accountability provision and provide some housekeeping measures ensuring that the act is up to date. Labor generally supports the bill because of its strong emphasis on protecting privacy and the important practical assistance it will give to our law enforcement agencies.
I will now turn to each schedule. The first schedule in the bill before us deals with stored communication—as I said earlier, communications like emails and SMSs. The issue of stored communication was addressed in detail by the Blunn review, which made a number of findings on this matter. Firstly, it recommended that the distinction between real-time and stored communications be maintained. However, despite calling for the retention of this distinction, it also found that the act as it is presently structured is not an appropriate vehicle for accessing communication other than real-time communications and that the provisions governing access to stored communication are inadequate and inappropriate, and Labor certainly agrees with that sentiment. Therefore the review recommended that access to stored communications continue to be authorised by a search warrant and that those warrants be required to meet minimum prescribed standards.
Therefore the bill before us today sets up a new warrant regime for intercepting stored communication. The bill will move the provisions from a general search warrant and implement tougher provisions similar to those for real-time communications. In effect, the bill will toughen privacy protections, making it harder to get a warrant. This schedule introduces a new regime for access to stored communication. This includes a general prohibition on access to stored communications, the regime for access to stored communications by law enforcement agencies, the process and regime for issuing, executing and revoking stored communication warrants, provisions of technical assistance to a law enforcement agency by staff or a carrier, a regime of evidentiary certificates by carriers and law enforcement agencies and an offence to criminalise unauthorised use or communication of accessed information or stored warrant information. It also includes a regime of permitted dealings with accessed information, admissibility of evidence, destruction of records unlikely to be used for the purposes of the investigation, the regime for keeping of records, including access to same by the Ombudsman and, more importantly, the regime for reporting to the minister and parliament about these matters and, of course, civil remedies.
The new regime, which will be brought in by the bill, generally acts to apply the same protections afforded to telecommunications to stored communications. So the first schedule of the bill not only acts to clarify the status of access to stored communication—which, it seems, has bedevilled this department for some time—but at the same time ensures that there are sufficiently tough privacy provisions that have to be met and maintained before you can obtain a stored communication warrant.
The second schedule in this bill clarifies the position of the act on B-party intercepts. As I said, a B-party intercept occurs when a law enforcement agency seeks to monitor person A for criminal activity. Now, say that a person is in regular contact with another party, a B party, who is not the subject of an investigation. Under the present law it is permissible to obtain a warrant to subject the second person, the B person, to an interception. It is not permissible, at least as far as policy is concerned, to intercept in order to obtain information regarding person A. But, of course, B-party intercepts effectively then target nonsuspects. We keep coming back to the issue that is of concern—to ensure that there is an appropriate balance struck between the privacy of individuals and the use of B-party intercepts.
Perhaps it is a good time to thank not only the members of the committee but also the secretariat for the work in such a short time to provide a report, given that there were significant constraints placed upon us by this government which I will complain about. If you look at the position that the government put the committee in, you will see that it gave not only the committee but also submitters a very limited time to provide submissions. I will also take the opportunity to say on record that I appreciate the submissions that were made in such a limited time. They were invaluable to the committee for coming to a conclusion and making recommendations. Again, the time provided for the committee to finalise its report to parliament was very limited. It was only reported on Monday. It is now Tuesday. I think dealing with the bill in such a short time also means the ability of this government to digest the recommendations is questionable.
Certainly the government will have to be able to tell this parliament that they have looked at all those recommendations in the time available, considered them and ensured that the bill meets those recommendations—and, if it does not, why it does not. They will also have to provide the opposition with sufficient time to be able to meet those recommendations by way of amendments if the government fail to adopt any of those recommendations. I can leave that to the committee stage. But it is worth indicating that we have been working under time constraints that have been imposed by this government and which I think are unreasonable and, I have to say, create the look that the government are seeking to move in haste when leaving more time might create a much better response.
The committee really summed it up when it said that it is important, if this bill—through B-party intercepts—seeks to override people’s rights to privacy, that it does so no more than is necessary. The law enforcement agencies have submitted that there is a need for B-party intercepts in limited and controlled circumstances and the Blunn review highlighted that they should only be used in limited and controlled circumstances.
The key question therefore is the extent to which this bill provides a framework of controls over the proposed intercepts that balances privacy with effective law enforcement. The committee went on to identify a range of issues that would need to be looked at: the controls on the dissemination of information, the implications for the protection of privileged communications, and the reporting and accountability requirements. It came up with substantive recommendations to improve the position of this bill to ensure that it address those issues.
The third area in which this bill imposes changes is equipment based interception, which is dealt with in schedule 3. This is arguably a technical change to allow law enforcement agencies to apply for warrants for communications from a specific device rather than communications from a person. What happens, as mentioned in the explanatory memoranda, is that a person of interest will buy a mobile phone and use potentially any number of SIM cards, at low cost or no cost, which they then switch through their phone. Naturally this makes it very difficult for a law enforcement agency to identify and intercept communications belonging to that person based on a SIM card. The person might also use multiple handsets. The amendments would, as I earlier stated, allow for a law enforcement agency to target the phone and intercept communications arising out of that phone or other device. This would serve to make it less practical and less economic for a person of interest to evade interception through their exploitation of technology. It would also enhance law enforcement’s chances of interception.
The three schedules I have mentioned are the main schedules to the bill. There are another three schedules which are designed to enact largely technical changes to the bill. Schedule 4 removes the distinction between class 1 and class 2 offences. Previously the act divided offences into these two classes and required only class 2 offences to be subject to privacy considerations by the issuing authority. However, the Blunn review questioned this distinction, finding that it produced no meaningful difference in terms of outcomes, and recommended its removal. The current bill accomplishes this, abolishing the two definitions and placing both of them under a new definition of ‘serious offence’. Both types of offences are now subject to privacy considerations. Essentially this enhances the privacy provisions of this bill. Under the previous regime, only class 2 offences were subject to privacy considerations. Under the regime presented in this bill, all requests for warrants of telecommunications interceptions will be subject to these considerations. Again, Labor will support these amendments, subject to any recommendations arising out of the committee process.
Schedule 5 operates to remove the Telecommunications Interception Remote Authority Connection from the act. The Blunn review found that the TIRAC regime was costly but had a very low rate of detecting warrant errors. The review recommended that the powers of TIRAC be removed to the Attorney-General’s Department. Schedule 6 of the bill introduces a number of technical amendments to the act and these are largely housekeeping.
In conclusion: the bill before us is a necessary update of the somewhat antiquated legislation that currently covers telecommunications interceptions. Significantly, the bill will provide a new regime for the interception of stored communication. (Time expired)
In the short time remaining, I will begin to address some of the concerns and comments of the Australian Democrats in relation to the Telecommunications (Interception) Amendment Bill 2006. Senator Ludwig has outlined, in many respects, the intent and content of the schedules of this legislation, which we agree is intended as an amendment to the Telecommunications (Interception) Act 1979. It is intended to implement some of the recommendations of the Report of the review of the regulation of access to communications, better known as the Blunn report. It is intended as a necessary update of the Telecommunications (Interception) Act, but it does have some alarming consequences, particularly in relation to privacy rights of Australian citizens. That is something that I will go into in more detail when I address some of the aspects of this legislation.
In the time remaining, however, I want to reinforce some of the comments that Senator Ludwig has made in relation to the process. The process tonight is not good enough. There was a truncated Senate committee process for this complex and significant legislation. Committee members were able to be a part of that process, but there was a shortened time for inquiry and report and we had witnesses that were very up front about the fact that they could have done with more time. In some cases—equipment based warrants et cetera—some of the complexities of those debates could have been covered more satisfactorily with extra time.
As for today, I understand the government has pulled off a bill—for a variety of reasons, but particularly because of the absence of a senator—but this is a piece of legislation on which the committee inquiry has only just reported, as Senator Ludwig has stated. The report came down yesterday. I acknowledge the government amendments have been circulated. I have to say, Mr Acting Deputy President Ferguson, that that is because you have more access to resources than some of us may have in preparing our amendments. I think it was about 9.56 am that the government amendments were circulated—so on the day of this debate. Senator Ludwig and I have not had an opportunity to circulate our amendments, because our amendments are still—
I’m getting there!
We are getting there. I thought mine had been circulated, so I apologise to anyone if indeed they have not been. I do think we should do each other the courtesy in this place of allowing each other sufficient time to at least read each other’s amendments. I acknowledge the government may not support ours. Having said that, once again I want to put on record that, even when we disagree on policy, we should commit to some protocol and conventions and process in this place that do justice to this parliament and to the house of review. Once again tonight, our role of scrutinising and analysing law in a timely fashion and a considerable way has been abrogated. I am very upset about that. I hope people will see our amendments over dinner and consider them in detail.
Sitting suspended from 6.30 pm to 7.30 pm
(Quorum formed)
This bill is obviously so important and urgent that I thought we would have had a quorum present anyway. I want to again put on record that amendments from the Labor Party and the Australian Democrats have yet to be circulated. We have been working madly over the last two days to get the amendments drafted and circulated and to hopefully give people enough time to respond to those amendments, but we have been focusing on the Family Law Amendment (Shared Parental Responsibility) Bill 2006 for the last 24 hours. Given that that has been pulled, this bill has come up and, although we are in the second reading debate, I implore the government to consider making the committee stage later. But, then again, maybe there is no willingness to even consider the amendments, including those that have arisen out of the Senate committee report.
This bill introduces a stored communications warrant. The regime allows enforcement agencies as well as Commonwealth bodies, such as the Australian Taxation Office, ASIC and Australian Customs, and similar state agencies to have access to stored communications. A stored communication is defined as a communication which is passed over a telecommunications system, is held on equipment operated by a telecommunications carrier at their premises and must be accessible to an intended recipient. The threshold for a stored communications warrant is three years, unlike an interceptions warrant, which is seven years. Stored communications warrants have lower storage, inspection and reporting requirements as compared with interception warrants.
This bill allows for a B-party, or a non-suspect third party, to have their telecommunications services intercepted in order to obtain information about a third party. In addition to B-party warrants and stored communications warrants, this bill introduces the concept of an equipment based warrant. This is where the warrant applies to an individual piece of telecommunications equipment as opposed to a person.
While recognising the importance of the Blunn report’s recommendation that consolidating the warrant regime will make the Telecommunications (Interception) Act more efficient, I and many others are dismayed by the potential impact of this legislation on privacy rights of Australians. We are concerned about the extent to which privacy rights can be affected by this bill. This bill in some cases strips away the privacy rights of some people. Specifically, it strips away the right of some Australians to have their information communicated in confidence. The low threshold that has to be met in order to obtain a stored communications warrant, or the potential that surveilled persons not even suspected of any wrongdoing may have their entire conversation with another nonsuspect intercepted, is an unacceptable invasion.
I accept that, in order to have a secure and safe society, we need to equip our enforcement agencies with appropriate tools. The stored communications warrant and the B-party warrant regimes, as outlined in this bill, are not appropriate tools to give to our enforcement agencies. The operation of these warrants and this regime does not strike a proportioned balance between privacy rights and efficiency in fighting crime.
I note that during the Senate inquiry into this legislation the Attorney-General’s Department submitted to the committee that the difference in the threshold required to obtain a stored communications warrant is significantly lower than that required to obtain an interception warrant because the information obtained under a stored communications warrant is ‘something that definitely involves more consideration of the expression’. The premise that more consideration or thought may be put into an SMS, an email message or a message left on voicemail in comparison to a telephone conversation, in this day and age, is ridiculous. Stored communications warrants are as invasive as an interception warrant and we believe they should be considered as such. Not only does this bill allow stored communications warrants to be obtained more easily, it actually removes safeguards and reduces the level of oversight that is in place for interception warrants.
The destruction provisions in this bill are also a matter of concern. The bill requires that the information obtained under a warrant be destroyed only when the chief officer decides that the information is no longer relevant for an investigation. We believe that this requirement is too arbitrary. What happens if copies of communications are stored and the chief officer does not get around to dealing with them? This information could potentially be stored indefinitely. We believe that measures are required to ensure that accountability is maintained.
To provide the minister with authority under the bill to appoint part-time members of the AAT as issuing authorities is, we believe, not responsible. In their submission, the Australian Privacy Foundation stated:
We suggest that the threshold is far too low—part-time members of the AAT and ordinary state and territory magistrates should not carry this responsibility, even if they are legal practitioners. Restricting warrant-issuing authority to judges, full-time magistrates and full-time senior AAT members would be an important safeguard against it becoming too easy for enforcement agencies to obtain a warrant.
Comparisons between reports released by the Attorney-General’s Department and the administrative office of the US courts have shown that warrants are more readily issued in our country than in the US, with 26 times more warrants per capita being issued in Australia. This indicates that there is probably an argument that it is already too easy for enforcement agencies to obtain warrants. In the reporting year 2003-04, 76 per cent of warrants were issued by members of the AAT rather than by judges. AAT members do not have tenure, are appointed by the government, and work on contract.
The Democrats support the recommendation to review the adequacy of appointing AAT members as issuing authorities for interception warrants. We also reject the appointment of part-time members of the AAT as issuing authorities for stored communication warrants. The reality that more agencies will be able to apply for a stored communications warrant under part 3-3 of the bill is also an issue of concern. We believe that the possibility that numerous state, territory and Commonwealth agencies may all have the authority to contact hundreds of carriers poses a very dangerous scenario for privacy rights. Again, there is a scenario here where a distinction is drawn between stored and live communications. Only enforcement agencies have the ability, under the Telecommunications (Interception) Act, to intercept live communications.
If the parliament decides that a phone call should not be intercepted unless it is for a serious offence, how have we come to the conclusion that where that phone was not answered and a voice message was left, it should be open to a variety of state and Commonwealth agencies? This bill not only provides for a number of agencies to access stored communications warrants; it also reduces their accountability in parts. The explanatory memorandum states:
Reflecting the wider agency access and the lower threshold to be met, the reporting requirements for stored communications warrant are not as burdensome on the agencies as the requirements for interception.
Regardless of the thresholds applied, the covert nature of the warrants and the potential for abuse make reporting obligations fundamental.
I do think it is a little amusing that the government has included in the bill a section for civil remedies when the entire operation of the warrant is covert. How does the government expect an aggrieved person to exercise their right to civil remedies when they are completely unaware that a warrant has been exercised against them? This is clearly the government paying some form of lip service to the idea of accountability but, in fact, flaunting their complete disregard for it.
My amendments have been circulated in the chamber. I am assuming that Senator Ludwig’s amendments are not far away. I am sure this will give the government plenty of time to review our suggestions, our amendments and our ideas. I again make the point that this is not just about us reviewing the government amendments which arrived at 9.56 am this morning; it is about extending courtesy to our colleagues so that they can review these amendments as well.
In relation to B-party warrants, the Democrats are particularly concerned about schedule 2 of the bill, which outlines the existence of B-party warrants. The bill should not be passed in its current format. B-party warrants allow the interception of communications with people not even suspected of a crime: innocent Australians. During the inquiry into the Telecommunications (Interception) Bill 2004, the Victorian Privacy Commissioner stated:
Telecommunications is one of the common means by which many individuals discuss their most private and intimate thoughts, as well as the ordinary daily details of their lives. They may also engage in political discourse, discuss business ventures, seek legal and other professional advice. People have a legitimate and reasonable expectation that the State will not listen surreptitiously to these conversations. Accordingly, any such interception has been subject to strict regulation under law, with oversight.
The arguments put forward by the Attorney-General’s Department and the Australian Federal Police are that, in some circumstances, it is necessary to intercept communications of non-suspected persons in order to obtain information about a person of interest. This does not take into account all other communication between a non-suspect and other non-suspects during the course of their day. Mr Cameron Murphy, who is the spokesperson for the New South Wales Council for Civil Liberties, stated in an ABC interview:
This is the first time in Australian history that we see the police being given the power to tap the phones of people who are not suspects, who are innocent people and just people who happen to be in contact with someone, likely to be in contact with someone who is a criminal. And it massively expands police surveillance and it is directly targeted against innocent people who are doing nothing wrong.
Mr John North, President of the Law Council of Australia, stated in his evidence to the inquiry:
The Law Council urges the government to abandon proposals to allow telecommunications surveillance of innocent people. Persons not suspected of crime should not be subjected by the state to surveillance. This proposal abrogates fundamental freedoms and human rights of people not suspected of any crime or wrongdoing.
The bill does not have a regard for the privacy of a non-suspect; nor does it have any regard for potential breaches of professional privilege or confidentiality. All conversations between a non-suspected person and their lawyer, their priest, their religious leader, or even their member of parliament are not necessarily protected. The bill does not adequately consider the importance of professional privilege or confidentiality; and, where this privilege is abrogated, we believe it does erode the ability of lawyers, medical officers, MPs, religious leaders, et cetera, to offer their services in confidence. Professional privilege should be protected from interception not only for privacy reasons; it should be protected for reasons of good public policy. It is crucial that Australian citizens are assured that whatever information they give in confidence remains in confidence.
During the inquiry the Attorney-General’s Department referred to the precedent established in Carmody versus MacKellar and Orrs which allows for the abrogation of legal professional privilege. I do not believe that this should be applied by analogy to justify the interception of telecommunications to innocent third parties. Similar to stored communications warrants, we believe the ability of an aggrieved person affected by a B-party warrant to access civil remedies under the Telecommunications Act is ineffective. Where a person has their communications unlawfully invaded or where material used from that interception is unlawfully recorded, they have no ability to seek redress because they will be completely unaware that the warrant has been exercised. Not telling the individual that a warrant has been exercised against them, even when such disclosure would not affect the investigation, prohibits them from exercising their rights to remedy. The accountability measures in this bill are not adequate and through our amendments and through other amendments that have been proposed we seek to strengthen these protections in the bill. That is why we need adequate time to analyse the amendments and their effect and debate this bill in the committee stage.
The bill as it relates to equipment based warrants has led to much confusion particularly in relation to the scope of its operation. During the inquiry I asked the Office of the Privacy Commissioner about the comment in their submission and was told:
The office has not yet been able to fully determine the limits to the scope of the operation of schedule 3.
Mr Timothy Pilgrim, Deputy Privacy Commissioner, replied:
... it is an issue that we have been grappling with and, given our time to be able to devote to issues such as this, have not been able to fully explore ... What we are not able to grapple with—or have not had time to grapple with—is how that might be broadly applied in various scenarios.
Electronic Frontiers Australia in its submission stated:
This proposal appears to have an inappropriately and unjustifiably high potential to result in interception of communications of persons who are not suspects (i.e. are not named in the warrant) because, among other things, the types of device numbers proposed to be used do not necessarily uniquely identify a particular device.
During the inquiry, in response to questioning about the equipment based warrants, the AFP stated that there is the possibility that the unique identifying number for a telephone or computer may get mixed up with other telephones or computers. It was stated by the AFP:
We would make all efforts we could to ascertain that [the unique identifying number] through our inquiries to the telecommunications companies. The concern, of course, is that some of these are fraudulently obtained.
How can the government endorse this legislation if the AFP is not able to guarantee that a piece of telecommunications equipment specified in the warrant is in fact that piece of equipment? The Blunn report, which was the motivator for the changes and for introducing this legislation, did not recommend the introduction of equipment based warrants. Rather, the report recommended that ‘priority be given to developing a unique and indelible identifier of the source of telecommunications and therefore as a basis for access’.
I also asked during the inquiry stage a number of the witnesses for their opinion on how this bill might operate in conjunction with a raft of other legislation that deals with antiterrorism and other such measures when it came to their impact on privacy rights. When you add this to ASIO legislation, the Telecommunications (Interception) Amendment (Stored Communications) Bill, the Surveillance Devices Bill, the Australian Passports Bill, the intelligence services legislation and the Anti-Terrorism Bill, the cumulative effect of these laws with other legislation that has been recently passed does remove civil liberties in this country in an unprecedented fashion. We are trying to build in some safeguards to this legislation tonight. All of these bills have an impact, in some cases necessarily, on civil liberties. When they operate together we see a huge cumulative impact that I think is incredibly deleterious to this democracy. We are entering a very new stage in Australian history when government interference in the daily lives of Australian citizens is not only to be expected but almost accepted. We recognise the difficulties in monitoring the security and privacy of the existing regimes but we are not convinced that the bill in its current form should be accepted. It must be amended and I implore the parliament once again to consider the amendments in a timely fashion. (Time expired)
I congratulate Senator Stott Despoja for that summary of the outrageous aspects of this legislation. Here we are in the Senate with seven senators in attendance dealing with a piece of legislation which egregiously allows snooping into the private affairs of Australians in a way which is unprecedented in the history of this parliament, certainly in peacetime. This Telecommunications (Interception) Amendment Bill 2006 goes way beyond the pale and way beyond what is required for government agencies to effectively check the threat of terrorism.
There is a pattern of misbehaviour by the government which means that almost any incursion on civil liberties can be brought into this parliament. If it has a whiff of terrorism about it—and it does not even have to be stated—the government, with an opposition that is more and more willing and compliant, can have that legislation go through with less and less attention by the media and less and less knowledge by the Australian public of how rapidly time-honoured values in this great democracy of ours are being eroded. We are seeing the rights and prohibitions on the government’s ability to intrude itself into the freedoms of individuals being eroded—and I welcome the minister to the chamber.
This legislation does not have the word ‘terrorism’ in its title but there is no doubt that it is a product of the fear tactic used by the Howard government on a broad scale. It is another one of those things that has come from Attorney-General Ruddock’s thinking. He came into the ministry saying he had in mind new legislation to deal with terrorism as he would have it and, ipso facto, to curb the rights and freedoms of Australians at large. This legislation does that more than perhaps any of the other pieces of legislation we have seen since his ascent to the ministry, to the Attorney-Generalship. In particular, it allows warrants to be issued for a whole range of perceived crimes to allow the interception of communications between Australians. That includes, in this age of cyberspace, stored communications—stored information—that people or entities may have. It does not require that the person or persons that are suspect, and for whom the interception of private information is allowed, be involved in potential terrorism or indeed serious violent crime.
This snoop legislation allows the Howard government to intrude into the telecommunications of people suspected of tax evasion, quarantine breaches and a whole range of matters including, under the new sedition offences, people who might be suspected of urging the overthrow of the Howard government itself. We remember how recently it was that large sections of the community, including the media, were galvanised into fruitless action against the government increasing the penalties for people that could be perceived to be threatening its overthrow. Now we have the government not only having established much more draconian laws for people perceived to be planning a violent overthrow or overthrow of the government—and you can imagine the imagination that goes into information received by agencies of the government on that score—but also, under this legislation, allowing the telecommunications of people who, so far as the agency knows, are thought to be entirely innocent of any such potential to evade taxes or quarantine, for example, to be intercepted. Those communications will be, effectively, processed by and for the government in the name, ostensibly, of the public interest. But that is against the public interest, if you take into account the fact that this country is not a dictatorship but a long established and proud democracy based on the principle of the right of the individual to her or his privacy against unnecessary government intrusion.
This bill is all about the government taking unto itself a whole range of opportunities to intrude into the privacy of average, innocent Australians and other Australians who are suspected of a range of potential criminal behaviours which may not in any way involve violence to persons let alone to the government or to good order in terms of the physical safety of our community. It is quite outrageous, but the government is getting away with it because this is an era of fear. JFK, of course, said we have nothing to fear but fear itself. Now the government has brought in an era in which that dictum is being shown for what it is. We have a great deal to fear from this Howard promoted period of fear. Legislation like this comes before the parliament and the Senate without any proper public debate and ignoring the advice of many important legal thinkers, civil libertarians, philosophers and people concerned for the ethics of this great nation of ours.
Let me quote from one section of the report by the committee to do with the interception of telecommunications of citizens who are known or thought to be entirely innocent of any crime other than that they may be, for example, in phone contact with someone who is thought, potentially, to be implicated. The Gilbert and Tobin Centre of Public Law said:
We believe ... that the Bill abrogates the right to privacy substantially more than is necessary to achieve the Bill’s security purposes. It is important that legislation does not abrogate rights more than is necessary and incidental to achieving the purpose of the legislation. Where legislation does disproportionately abrogate rights, it may have adverse, unintended effects.
It certainly may have. For example, it would give opportunity to government agencies right through to ministers to intrude upon the rights of innocent Australians in a way that is totally contrary to our history and this nation’s proud traditions. The Law Council of Australia said:
Schedule 2 of the Bill if enacted allows certain law enforcement agencies and ASIO to intercept telecommunications of a person who has no knowledge or involvement in a crime, but who may be in contact with someone who does. In other words, people suspected of nothing will be under surveillance ... This is the first time ever in Australia’s history that law enforcement agencies will be given power to intercept telecommunications of people who are not suspects who are innocent people.
Let me repeat that, because this is coming from the Law Council of Australia:
This is the first time ever in Australia’s history that law enforcement agencies will be given power to intercept telecommunications of people who are not suspects who are innocent people.
A pity the chief law officer of this country, the Attorney-General, does not listen to the Law Council of Australia, but in the arrogance of this government—and it is a dangerous arrogance—has taken unto himself to put up legislation like this effectively unaltered by any public submission. Senator Stott Despoja quoted from the New South Wales Council of Civil Liberties. Mr Cameron Murphy from that council had something to say about the Attorney-General’s legislation, which we are going to see put through this Senate a little later this evening—if it is convenient to the government; if not tomorrow—by the sheer weight of numbers, regardless of what debate takes place here and regardless of the warnings from people outside this place who have far more regard, I submit to you, Madam Acting Deputy President, than the Attorney-General or the Prime Minister of the day for this nation’s great traditions.
Let me remark on comments by Senator Milne earlier this afternoon in a debate where she pointed out that it is this very government that purports to uphold the traditions of Australia that uses every opportunity to aggrandise itself before the flag, in front of the symbolism of this country, in this parliament wherever it can, ripping down the great traditions of this country, treading them into the ground—not least the rights of individuals. One would expect a conservative coalition, a government largely made up of members who have the word ‘liberal’ in their job description, to trample time-honoured rights—in particular to immunity from government snooping, which is not in the national interest—into the dust.
Mr Murphy said on behalf of the New South Wales Council of Civil Liberties:
We can accept that, if someone is a suspect in a criminal investigation, it is a matter of balancing the interests of the public in ensuring that that suspected offence is investigated and that the person is prosecuted and dealt with under the law. In this amendment, we are dealing with something that goes much further than that. We are talking about innocent B-parties—
that is, innocent people—
people who are not themselves suspected of any offence. The whole regime of B-party warrants shifts the focus of the investigation from someone who is a suspect to an investigation surrounding the innocent B-party on the off-chance that a suspect might contact them and there might be useful information gleaned that way.
If you can argue that you should intervene on the privacy of somebody who might know somebody who might be suspected of a tax evasion, then you can argue that somebody who might know that somebody who knows that somebody might themselves be investigated. Where do we end up here? It is a very logical progression that nobody is going to be safe from their privacy being intruded upon, invaded, unknown to them, as they go about their innocent life in this democratic nation of ours, by an increasing number of government agencies with less regard to the wellbeing of the country and greater regard to the politics of the government of the day. It is very dangerous legislation. Were it to be conscribed to would-be terrorists and murderers, I would have no difficulty with that. But this is nothing of the sort. This is a broad-reaching intrusion into the private lives of Australians to foster the ever-increasing size of government agencies which this government has promoted and is paying for out of the taxpayers’ pockets in an age of fear.
I saw an essayist on the weekend—I might get that and read it to the committee a little later tonight—talking about the much healthier role government would have if it explained to us all that we live in an age of insecurity and danger. We have to accept a proportion of that and we have to balance keeping our freedoms with that danger, but we do not have a public debate at that level. The fact that there are only two government representatives in this chamber at the moment shows that the government is not going to engage in that sort of debate. It has the numbers. The executive, the Prime Minister’s office, in this case along with the Attorney-General, has control of the parliament, effectively. There is nobody in the House or in the Senate in the coalition who is going to stand up for what were considered until tonight basic human rights in this country.
Nobody is going to stand up against this gross intrusion on the International Covenant on Civil and Political Rights—Australians are losing out here to international rights recognised right around the world—and make a stand in favour of the individual. No, this is a Liberal government which believes in the all-important ability to legislate for the collective—that being itself—against the interests of the public. It is an extraordinary turnaround in the way we would expect a government to behave but, then again, this is a government that tramples all over states’ rights after a century of conservatives arguing for states’ right. Here we have a government that is trampling all over individual liberties in this country after a century of arguing that it was the champion of civil liberties. That is now left to the Democrats and the Greens in this place because the opposition, the Labor Party—guess what?—is going to go over and support the government on this legislation.
I will be moving some pretty direct amendments on behalf of the Australian Greens. They do not cover the worries, the anxieties, that people have brought to the Senate committee and that other people obviously would have if they knew about this legislation, but they at least test it out. One of the questions I would like the Attorney’s representative in this chamber, the Minister for Justice and Customs, to explain to us—and I will be pursuing it somewhat in the committee stage—is to what degree, for example, Federal Court judges or members of parliament are going to come under secret eavesdropping by government agencies at the behest of the Attorney-General under this legislation.
I have, as part of the amendments here, a prohibition on Federal Court judges, High Court judges and federal and state members of parliament being listened in to under the extraordinary depth, breadth and reach of this legislation. People listening to this would say—and I would be one of them—immediately: ‘Why should they be protected in a way that other citizens aren’t?’ I agree entirely; I think other citizens should be protected. But I would like to know—and I will be questioning the minister on this—what protection members of parliament, and indeed High Court judges and Federal Court judges, have. Are we crossing the line here between the separation of powers? Does this make judges vulnerable to political snooping? Potentially it does. Does it mean that members of parliament will not have the time-honoured protection from snooping by government ministers’ fiat that they have had in the past?
There are other questions that will be asked. The first amendment I will be making will be to ensure that the International Covenant on Civil and Political Rights and Australia’s other obligations to democracy, to the freedoms and rights which we espouse and that we are going overseas to protect, be protected here in Australia.
I will deal with the questions that Senator Brown mentioned at the appropriate stage, when, no doubt, they will be raised. I would like to thank senators for their contributions to the debate, and I thank the members of the Senate Legal and Constitutional Legislation Committee for their efforts in inquiring into the provisions of what is a very important bill. The Telecommunications (Interception) Amendment Bill 2006 illustrates the government’s commitment to ensuring that security and law enforcement agencies are equipped with appropriate powers to combat and prevent serious crime, including terrorism. At the same time, the bill reflects the government’s consistent efforts to ensure that there are appropriate privacy protections for the users of Australian telecommunications systems. (Quorum formed)
The implementation of the recommendations of the Blunn report and the regulation of access to communications provide greater certainty and clarity for our law enforcement and regulatory agencies, telecommunications industry participants and users of Australian telecommunications systems. The new stored communications warrant regime implements Tony Blunn’s recommendation for overarching legislation regulating access to communications such as email, voicemail and SMS messages. The new regime strikes a careful balance, on the one hand creating a new prima facie protection for stored communications while on the other creating a defined regime to provide law enforcement agencies with appropriate access.
The bill will also make important amendments to the interception regime to assist agencies to counter measures adopted by persons suspected of serious criminal activity to evade telecommunications interception. Interception under these new amendments will be used only as an investigative tool of last resort and will be subject to strict controls. It will be available only for the investigation of the most serious crimes. The bill achieves an appropriate balance between providing for the access needs of law enforcement and security agencies and maintaining the privacy underpinnings of the interception regime. Strong safeguards already contained in the interception regime will continue to apply. These include restrictions on the use of any intercepted material, as well as independent oversight and annual reporting to the parliament.
I note that there will be amendments moved at the committee stage. There are a number from the opposition and the Democrats, I think, and certainly the government will be moving amendments. The government amendments in part relate to the Senate committee’s consideration of the bill as well as some amendments which have been included to ensure the effective operation of the stored communications regime. But we will deal with those during the committee stage.
These amendments, which I will outline in greater detail at the committee stage, are practical adjustments to the measures in the bill to enhance its operation and to add further accountability measures. The government will continue to consider the recommendations made by the Senate committee in its report in the coming months. In the event that further amendments to the measures in the bill are appropriate, the government would anticipate addressing those issues in the spring session of parliament. This bill demonstrates the government’s commitment to providing comprehensive safeguards for the privacy of communications while ensuring appropriate access for the purposes of combating serious crimes and threats to national security. (Quorum formed)
In relation to the contributions by various senators, some questions were alluded to. I think Senator Brown mentioned some. I would raise one aspect. Senator Stott Despoja compared the Australian situation to the US situation. Certainly it is misleading to compare Australian interception rates with US interception rates. We have totally different legal frameworks. Both the Attorney-General and I have commented on this before. The Attorney-General addressed this comprehensively in the second reading speech. I will not go into great detail here, but it is obvious that, where you have different regimes, you will have varying statistics in relation to interception, be they telephone or otherwise, and to compare them is indeed misleading. In fact, it could be argued that, if you have more warrants issued in a judicial system for the interception of telephones, it could mean that you have greater safeguards in that you have to get warrants for those intercepts and that, in those jurisdictions which have a lesser amount of warrants, there was not a requirement that in every case you have a warrant. That is just one perverse conclusion that could be drawn from a comparison between Australia and the United States. I certainly take issue with that point that was made by Senator Stott Despoja.
This is a very important bill indeed. It is vital for the interests of this country that it be passed. I commend the bill to the Senate.
Question agreed to.
Bill read a second time.
I move:
That consideration of this bill in Committee of the Whole be made an order of the day for a later hour.
What later hour are we considering here? The government brought this legislation on. It controls the business of the house. This is very serious legislation. Senators who are focused on this legislation either want the debate to go ahead or want to know when the government is going to get its business in order so that we can proceed with the debate. The government is having trouble getting a quorum in here—it is back to three members in the chamber again. It might treat this lightly but I do not, and I would like to know when the government perceives that this debate is going to resume. We are not here just to have the government turn the tap on or off. It is a serious matter.
If the government wants to now haul off from a debate it set going this afternoon—peremptorily, because it wanted to put off another piece of legislation which was scheduled, because Senator Fielding is not here—that is one matter. But, having brought this legislation on, we should deal with it. I have heard no good argument from the minister at the table as to why we should now abandon it and go on to a third piece of legislation. That is chaotic. Government should get itself into gear. I want to hear some explanation.
by leave—The situation, I understand, is that Senator Brown’s office was advised of this procedure. It has the support, as I understand it, of the opposition and the Democrats at least. The government proposed that it would give some time for people to look at the running sheet, which is being produced as we speak, and that the Tax Laws Amendment (2006 Measures No. 1) Bill 2006 could be debated in the meantime. I would envisage that that would take no more than an hour or so. We would back to the Telecommunications (Interception) Amendment Bill 2006 at a later hour tonight.
Senator Brown’s office was certainly contacted about this proposal. The Democrats indicated their support for it, and were in fact very keen on having a break. It is fair to say that the opposition was agreeable to this procedure, and the government was as well. There is nothing untoward about this. It is just a matter of commonsense—giving people some time to look at the running sheet and prepare for the debate.
I understand I do not need leave, because the minister has already spoken. I have some sympathy for Senator Bob Brown’s concern. The government is in charge of the program. However, we are in a situation and circumstance where we need to be understanding. This is effectively the ricochet impact of deferring the family law legislation. In the circumstances of Senator Fielding being ill, we have to be reasonable. As a consequence, the running sheet for the legislation is not ready. It would be simply impractical to continue in those circumstances. Consequently, I can confirm that the Labor opposition has agreed to deal with Tax Laws Amendment (2006 Measures No. 1) Bill 2006.
It is not an ideal situation, Senator Brown. However, we think that in the circumstances it is reasonable. It would be unreasonable for us to pull up stumps now. We have given a commitment to sit through to 11 tonight—or whatever the time is—so we are working overtime for a couple of hours. That is all part of our responsibilities when the circumstances that I have outlined arise. We are prepared to go on with Tax Laws Amendment (2006 Measures No. 1) Bill 2006 in the circumstances.
by leave—Of course the government will have its way and we will wait another hour and then come back to the Telecommunications (Interception) Amendment Bill 2006. Just let me make a couple of points here, though. I am not as compliant with the government in these circumstances as the opposition is. We are sitting on a Tuesday night, the hours of which were arranged yesterday, to complete the third or fourth sitting day of this month in a Senate that now is sitting very little—fewer days than I can recollect during my time in the place. The reason for that is that the government does not want to be under scrutiny here but wants to ram through every piece of legislation it can. The opposition might be compliant about this, but the Greens are not.
The government is reducing the number of days on which the Senate sits yet does not want to reduce its ability to get through all the pieces of legislation. There are two mechanisms by which the government will achieve that. One is to have us sit longer hours on the days we are here than the time-honoured hours which are the maximum for the proper functioning of a Senate. We are not functioning at the moment, because the government has brought this legislation on on a Tuesday night when we should not be sitting. I extend my commiserations to those good people behind the scenes who are trying to get together a running sheet under extreme duress and pressure. This is March; it is not December. They never should be put under that pressure. But everybody bows to the Prime Minister’s wish that this Senate simply rubber-stamp everything that comes out of his office with a minimum of fuss.
The second mechanism that we have seen, and will see more and more use of, is the gag or the guillotine to cut off debate on important matters like this so that the government will not sit more days but will get that legislation through. The opposition might shrug its shoulders and say: ‘Oh, well. We can’t do much about that.’ The Greens do not accept that at all. What is happening here is a debasement of the parliament now that Prime Minister Howard and his coalition have control of both houses. This is a manifestation of the abuse of the Senate by the government, and I do not take that lightly and nor do my colleagues.
Yes, we will have a one-hour break and then come back and deal with some other legislation, because it is convenient for the government and Mr Howard. The honourable Prime Minister wants it all put through the Senate with no fuss, because the Senate does not matter. I take a different attitude. It is a hugely important institution. Whether the government has control of it or not, I differ from the opposition. It is our job to halt the government in its tracks and take the time that the public interest demands we take on extraordinary legislation like this and deal with it adequately. This should be done properly and in a coordinated fashion, not in a stop-start fashion such as is being exemplified by the mismanagement of the Senate here tonight.
Question agreed to.
Senator Bob Brown to move on the next day of sitting:
That the motion by the Minister for Finance and Administration (Senator Minchin) for the divestment of the Commonwealth’s shareholding in Snowy Hydro Ltd be referred to the Rural and Regional Affairs and Transport References Committee for inquiry and report by 30 June 2006.
Bill received from the House of Representatives.
I move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
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—
This bill amends various taxation laws to implement a range of changes and improvements to Australia’s taxation system.
Schedule 1 exempts temporary residents from Australian tax on most foreign source income, including capital gains. The exemption is confined to foreign source income and does not apply to their Australian source income, or generally to salary and wages. These amendments will also exempt temporary residents from interest withholding tax obligations associated with overseas liabilities and with some record-keeping obligations. This measure does not favour temporary residents over Australian citizens when deciding who to employ.
This exemption was introduced into the parliament twice in 2002 and was defeated twice by the opposition in the Senate. As a result the government withdrew the measure prior to the 2004 election.
In the 2005 budget, the government committed to pursue the measure again, recognising it would reduce the costs to Australian business of employing highly mobile skilled labour, as currently the extra tax costs are often passed on to employers. In addition, by making it easier to relocate key staff to Australia, these changes will facilitate Australia’s growth as a regional centre.
Several beneficial changes have been made to the previously introduced measure. First, to reduce complexity there are no longer any arbitrary time limits. Second, temporary residents will be treated like non-residents for capital gains tax purposes. Finally, the rules for capital gains made on employee shares or rights have been made more explicit. Overall, these changes will simplify the rules for most temporary residents.
An internationally competitive basis for taxation of mobile talent is an issue not only for small- and medium-sized businesses but also for large businesses alike.
The amendments will apply from 1 July 2006, except for the interest withholding tax exemption, which will apply from the day of royal assent.
Schedule 2 introduces a systematic treatment of business black-hole expenditures. It provides a five-year write-off for business capital expenditures incurred on or after 1 July 2005. This includes pre- and post-business expenses. As part of the systematic treatment, some black-hole expenditures will be recognised by amending the capital gains tax regime and the elements of cost for depreciating assets.
This schedule also introduces a new five-year write-off for payments to terminate a lease or licence. This applies where these are a business expense.
The new five-year write-off for business capital expenditures will be a provision of last resort. This means that it will apply only where business capital expenditures are not already taken into account and are not denied a deduction for the purposes of the income tax law.
This fulfils the government’s commitment to provide such a regime as detailed in last year’s budget.
Schedule 3 amends the law to introduce a civil penalty regime to deter the promotion of tax avoidance and tax evasion schemes.
There are currently scheme penalty provisions that apply to taxpayers who participate in tax avoidance and evasion schemes. This bill will provide for greater symmetry in risk by ensuring that promoters are at risk of penalty when they expose their clients to scheme penalties.
This bill also provides for injunctions and voluntary undertakings. These remedies can be used by the Commissioner of Taxation to stop the promotion of schemes before taxpayers are put at undue risk. For an injunction or penalty to apply, a promoter will have to:
Implementers are only affected if they implement a scheme, promoted on the basis of conforming to a product ruling, in a materially different way.
Schedule 4 amends the A New Tax System (Goods and Services Tax) Act 1999 to clarify that prepaid phone card products are ‘eligible vouchers’ for the purpose of division 100 of the GST act. This confirms the policy intent that GST applies to these products when they are used and not when they are sold. As the amendment confirms the industry’s existing treatment of these products, it applies retrospectively from 1 July 2000.
This schedule also clarifies that from 11 May 2005 GST is to be paid on the face value of a voucher. This ensures that for vouchers sold at less than their face value through a distribution chain, any value-added is subject to GST. In addition, the measure provides a simplified accounting arrangement for ‘eligible vouchers’ supplied through a distribution chain, which will apply from the date of royal assent.
Full details of the measures in this bill are contained in the explanatory memorandum. I commend this bill.
We are dealing with the Tax Laws Amendment (2006 Measures No. 1) Bill 2006 a little earlier than the Labor opposition and I anticipated. We have to some extent debated the circumstances of us dealing with this a little earlier than we anticipated, but I want to strongly reject the comments made by Senator Bob Brown and the implications of some of his comments in his contribution a few moments ago. He referred to the Labor Party as being compliant. I have already outlined the circumstances in which we believe it is reasonable that we now move to this piece of legislation. It is not a matter of compliance on the part of the Labor opposition. Senator Brown used the word ‘compliance’ and that implies unreasonable acceptance. It is not unreasonable in the circumstances we are faced with in dealing with the Tax Laws Amendment (2006 Measures No. 1) Bill 2006 and in dealing with the other legislation when it comes along once the running sheet has been dealt with. Senator Brown accuses the Labor opposition of shrugging its shoulders and complying with the Prime Minister’s wishes. That is not the case. No-one has fought harder to hold this Liberal Howard government accountable on a whole range of fronts, particularly since the government gained a majority in the Senate, than the Labor opposition has.
Once again, we saw the pique of Senator Brown on display earlier when he advanced an unfair and unreasonable argument. That is what we usually see from Senator Brown. He is the centre of the world, he is the one holding the government to account and no-one else is doing their job. That is totally wrong, and I reject that on behalf of the Australian Labor Party. I would have thought Senator Brown would have learned a lesson from the election last Saturday. I would have thought he would have learned a lesson in graciousness and manners in terms of politics. Unfortunately, he is not here in the chamber, and I do not want to unnecessarily prolong the debate tonight.
However, when a senator has to go to hospital and is ill and is vitally interested in a piece of legislation, it is not unreasonable to defer that legislation. What would Senator Brown have us do if he were ill and had to go to hospital and he wanted to make a contribution on a piece of legislation? I certainly believe the Labor Party would give that reasonable consideration and agree to deferring a piece of legislation that he was vitally interested in. That is why we have had the flow-on consequences and have had to defer the earlier legislation and move on to the Tax Laws Amendment (2006 Measures No. 1) Bill 2006.
Let me move to the bill. Firstly, Labor will be moving an amendment to this legislation in the committee stage. I want to deal very briefly with the amendment in principle that I will be dealing with in detail in the committee stage. Labor has chosen the Tax Laws Amendment (2006 Measures No. 1) Bill to move an amendment designed to close a loophole in the tax law that might permit an AWB type kickback payment to receive a tax concession. We have had a massive scandal in recent months. It would have to be the most significant bribery case, I think, in the history of Australia. The very fact that kickbacks of such significance have taken place at all is extremely embarrassing for this Liberal government. Funding the former Iraqi regime while Australian troops were deployed against it through bribes for guns, effectively, is absurd and is an extremely serious matter.
What has come to the light in the Cole inquiry is that the AWB claimed its $300 million kickback as a tax deduction. This is absolutely outrageous in any moral or ethical terms, as the payments made were clearly bribes in the ordinary, commonly understood sense of the word. But what is even more concerning is that this payment is attracting a tax deduction. We spent some time on this issue at the recent Senate estimates. The payments made were claimed as an expense. Although the Taxation Office could not go into the detail of the specific case, we spent some time at estimates examining this issue in principle—and I think Senator Murray, who is in the chamber, was there at the time. The AWB over a number of years would have claimed these payments that are effectively bribes as a tax deduction, deductible against a number of their years of annual tax returns.
I note from that evidence that the tax office sent an official to spend some days, I think, sitting in on the Cole inquiry. I can only presume that is to get first-hand some of the evidence being presented to establish prima facie that, once the Cole inquiry is completed, whatever those findings may be, the tax office will be required to take further action and certainly, I hope, readjust the tax claims for the relevant years in which bribes were paid and collect the tax owing on behalf of the Australian people. Including the penalty, that will be a very significant sum of money.
Australia is a signatory to the OECD anti-bribery convention of 1997, which calls on bribes to be made illegal; therefore, of course they are not tax deductible. The convention raises significant criticisms of so-called facilitation payments. The words used in the convention are that such payments are a ‘corrosive phenomenon’. Such payments are effectively small bribes used to smooth the wheels of government. When the government gave effect to the anti-bribery convention and made amendments to the Criminal Code and the tax law in 2000, it permitted a facilitation payment to be a defence against the criminal charge of bribery, sufficient to make such an expense deductible.
The tax act and Criminal Code mirror each other identically except for two points. This could prove crucial in any reassessment of AWB. The two points are that the Criminal Code requires that the payment be minor in value and records be kept. The tax act has the same definition in it but no monetary restriction or record-keeping references. This has been noted by the OECD. It has not just been noted by the Labor opposition. The issue of record keeping is something that the ATO has been specifically asked to address by the OECD. This is not an amendment that the Labor Party is arguing for without supporting evidence. It is the OECD—a very credible and authoritative organisation that we hear much of and that is quoted from time to time by the current government—that has drawn Australia’s attention to what on the face of it are quite small differences between the Criminal Code and the tax act.
The OECD has indicated there is no reason why the tax act would not include ‘minor in value’ in the definition of facilitation payments. This language is present in the convention, and failure to replicate it in Australian law places Australia in technical breach of the convention. What is more concerning is the obvious point as to why anyone would oppose the clear argument that for such kickbacks not to be deemed bribes they must be minor in value. Without this a $300 million AWB type payment could possibly be deductible. This is of great concern to the Labor opposition.
We know the government will not agree to this. They rejected Labor’s amendment in the other place earlier this evening. They have decided that facilitation payments need not be minor in value for the tax act but must be minor in value for the Criminal Code. This is a strange asymmetry that simply creates confusion and uncertainty which does not exist in comparable jurisdictions like the United Kingdom. The government have rejected Labor’s amendment in the House to align the codes. They say they do not support AWB’s behaviour, but this appears to the Labor opposition to be no more than hollow rhetoric. We have seen a lot of that from the government in respect of AWB over the last few months. Labor will be strongly pressing its amendment in respect of this issue later when we get to the committee stage.
The Minister for Revenue and Assistant Treasurer, Mr Dutton, in the House indicated that the tax commissioner believes that the language ‘routine in nature’ in the tax act is enough to restrict the issue to payments that are minor in value. This is a strange point. Something can clearly be minor in nature, like a port fee, but high in value, like $300 million. The UK tax act does not have a specific and different definition for facilitation but only uses the definition in the crimes act. This is clearly the better model.
I will deal briefly with the schedules in this legislation. The first schedule in the bill seeks to remove the harsh penalties and permits for, and give additional concessions to, nonresidents working in Australia in relation to their foreign source income. Australia currently imposes punitive measures on nonresidents or temporary residents who work in Australia but have significant foreign source income. These tough provisions have had a negative impact on foreign sourced executives and some high-skilled professionals. Under the current provisions a resident who becomes a nonresident triggers a capital gains tax event and deemed disposal rules apply. Unrealised gains on assets without a connection to Australia are deemed to be realised and capital gains tax applies.
An exemption applies for short-term residents of less than five of the last 10 years. Tax can be deferred until realisation with subsequent gains assessable. Under the UK and US double tax treaties such gains subsequent to a residency change are not assessable. In the Taxation Laws Amendment Bill (No. 4) 2002 the government introduced an exemption for temporary residents from Australian tax on foreign source income, including interest withholding and capital gains, for four years. The relevant schedule was removed from the bill in the Senate and the amendment bill passed in the House.
The rationale for the government’s proposal was that the high marginal tax rate in Australia meant that the Australian tax on foreign source income was higher than the tax the expatriate would pay overseas on the same income. This could undermine attempts to attract key personnel from offshore, something which many businesses have been forced to do because of the government’s inaction in respect of local skills shortages. If we cannot get local labour then we must look overseas, but the tax penalties, certainly for some occupations, make it extremely difficult to do this.
The current bill has three impacts: (a) it removes the deemed disposal rules for temporary residents for assets without a concession to Australia without the five of 10 year rule outlined above, (b) foreign source income from temporary residents is excluded for income taxation indefinitely, and (c) temporary residents do not pay tax on interest income received overseas. These measures have the strong support of the business community. The Labor Party has considered them on their merits and likewise believes they should be supported. Moreover, their implementation will ease the current skills crisis we are facing as a nation. There are also economic benefits associated with reducing impediments to skilled foreign employees taking up positions in Australia. This will in some measure boost labour productivity in important sectors.
The second schedule targets black hole expenditures, which are expenses of a capital nature usually excluded from deductibility but for which a special case for deductibility can be made. The bill really extends deductibility for expenses associated with setting up a now defunct or changed entity. This measure is not about loss carry-forward provisions but about deductibility of expenses for an entity that is now nonexistent. The expenses do not meet the loss carry-forward provisions. Some tests still need to be met to claim the deductions. Labor believes the bill has been written with James Hardie in mind to provide that the James Hardie payments to the compensation fund for asbestos victims will be eligible for a tax deduction. Labor supports this because it clarifies a significant uncertainty in tax law.
The third schedule is about tax promoter penalties. It is the measure to empower the Commissioner of Taxation to impose penalties on promoters of tax minimisation schemes. At the moment the commissioner cannot do this but can only hit the victims of such schemes after the event. This has led to the debacle of mass-marketed tax schemes and employee benefit arrangements, where thousands of taxpayers have been victims of exploitation from aggressive tax minimisation strategies with penalties attached. The bill now empowers the tax commissioner to seek significant fines from the actual marketeers of the schemes and to get an injunction from the Federal Court to stop the schemes being promoted. This gives no relief to previous victims and the 60,000 taxpayers who have been adversely affected by schemes. It comes some five years too late.
The major problem with the current measure is the uncertainty it creates. Advisers who advocate legitimate tax reduction arrangements will now be forced to seek a tax ruling to ensure that they are not covered by the arrangements and slip from being an adviser to a promoter. This will significantly increase ATO costs. The current estimate of an extra $7 million per year in costs could prove to be conservative. Labor would like some indication about whether there is sufficient funding to ensure the rulings sought could be dealt with expeditiously.
While I am on this matter, it is about time the tax office paid greater attention to self-managed superannuation funds. I know it is a different issue, but we have recently had the appalling scandal of Westpoint, where a number of promoters—planners—encouraged individuals, through self-managed superannuation funds, to invest in Westpoint entities. Some hundreds of people were, I think, very poorly advised—and that is a mild description—and the tax office to date has not bothered to check one of those self-managed superannuation funds to see if they complied with the current law in respect of Westpoint. This is a very serious issue indeed. There has been significant comment about it in the media and it will continue due to what is, I think, poor oversight across the board, including by the tax office.
The fourth schedule is about the GST on prepaid phones. Prepaid mobile phones often provide a myriad conditional benefits, such as free SMS, discounts or cash-back deals. This has created some uncertainty as to how to levy the GST on these products, which are essentially vouchers to make a certain number of calls at varying rates and at varying times. The easy way to deal with this is to simply specify that the stated value of the voucher is the GST taxable supply.
In conclusion, Labor supports this bill. It makes necessary clarification and it will increase GST revenue by about $10 million a year. Senator Murray may be able to help me because he is an expert on the GST. We are up to about 1,693 amendments to the GST. Senator Murray, we could have had fewer if you had been on the ball when you agreed to the GST. Nevertheless, we continue to clean up that mess all these years later. Labor will be supporting the bill and we will be arguing for our amendment in the committee stage. I think Senator Murray is moving an amendment and I will comment on that in the committee stage as well.
The Tax Laws Amendment (2006 Measures No. 1) Bill 2006 contains four disparate schedules amending the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Fringe Benefits Tax Assessment Act 1986, the Taxation Administration Act 1953, the A New Tax System (Goods and Services Tax) Act 1999 and the Income Tax (Transitional Provisions) Act 1997. Schedule 1 amends the legislation governing foreign source income exemption provisions for temporary residents, schedule 2 amends business related costs, schedule 3 deters the promotion of tax exploitation schemes and schedule 4 updates GST mechanisms for prepaid phone products.
Schedule 1 amendments pertain to the Income Tax Assessment Act 1997, with consequential amendments to the Income Tax Assessment Act 1936 and the Fringe Benefits Tax Assessment Act 1986. This schedule seeks to implement part of the government’s new business tax system reforms by achieving the following two key objectives: firstly, to attract internationally mobile skilled labour to Australia; and, secondly, to assist in the promotion of Australia as a business location by reducing the costs to Australian business of bringing skilled expatriates to work in Australia. The amendment provides exemptions from Australian tax on non-Australian source income for individuals who are temporarily residents of Australia for tax purposes. Interest withholding tax obligations of temporary residents are also removed.
The main thrust of this schedule is the introduction of tax concessions for temporary residents at a cost to taxpayers of approximately $75 million over the forward estimates period. The government asserts that this is the best means of attracting highly skilled labour to our shores. Never mind the lucrative salaries; ignore our status as one of the most sought-after destinations on the planet: they are not enough. We also need to provide more generous tax incentives for our would-be expatriate workforce.
The government’s grand plan will provide exemptions from Australian tax on non-Australian source income for individuals who are temporarily residents of Australia for tax purposes. The bill defines who is considered to be a temporary resident and necessitates that the individual concerned: (1) be a holder of a temporary visa; (2) has not previously been an Australian resident within the meaning of the Social Security Act 1991; and (3) is not married to an Australian resident.
Notably, temporary residents who are involved in a de facto relationship with an Australian resident will still benefit from tax exemptions. So you are excluded if you are married to an Australian resident, but if you are shacked up with one you are not excluded. This is an unacceptable inconsistency since it does not even fit within the government’s own intention as stated in a note to the relevant paragraph which reads as follows:
The tests in paragraphs (b) and (c) are applied to ensure that holders of temporary visas who nonetheless have a significant connection with Australia are not treated as temporary residents for the purposes of this Act.
The government must be stuck in the past if it considers that a ‘significant connection’ to Australia in the context of one’s partnership is limited to marriage alone. Everyone—I am sure even including the very straitlaced people in the tax office—is surely aware that in Australia in 2006, from a taxation point of view, a de facto relationship is equivalent to marriage. For this reason, I will be moving to amend the spousal definition by replacing it with the interdependency relationship definition that is more comprehensive and better designed to achieve the government’s intention than that which I have previously described. The shadow minister indicated that this measure has been defeated twice in the Senate previously.
The measures contained in schedule 1 effectively seek to lower the labour market entry hurdle for the expatriate workforce. Historically, highly skilled foreign workers—and, presumably, reasonably affluent foreign workers since they must have a foreign passive income stream to be affected by the tax provisions in question—have supposedly been deterred from taking up employment in Australia because of the potential for foreign source income to be doubly or excessively taxed. But does anyone really think that our present taxation rules have meant a lack of high-paid foreign executives in our companies or of well-paid guest workers? In my opinion this measure is an unnecessary gift to foreign temporary residents. There are a thousand better uses for the money so wasted.
However, in fairness, I should indicate that those supporting these changes argue that removing these disincentives will make Australia a more attractive base for employment for affected individuals and corporations that desire such individuals in their workforce. Freeing up and globalising domestic labour markets is a natural step in the modern economic rationalisation process. If Australia is to become—and it must—a knowledge and information based economy, a critical requirement is the ability to attract and retain skilled labour. On a net basis, the upside of these provisions is greater labour productivity, technology, information transfer et cetera, which far outweigh the projected cost to revenue and the potential increase in foreign competition for domestic labour, and thus should be supported. Those arguments are all very well but the premise is unsound. The premise is that we lack the incentives for guest workers or for foreign executives, and we do not.
In its current form and even with the ascribed arguments proposed by the government, I do not feel that schedule 1 of this bill is worthy of support. There are not equity, efficiency or productivity grounds or even supply and demand grounds that lend support to such a tax concession for temporary residents. Skilled temporary residents already benefit from lucrative salary deals. They reside in Australia temporarily and therefore they are not overly exposed to any detrimental tax effects for any significant period of time. Australia is already attracting a significant number of skilled temporary residents to take up employment under existing taxation measures. In short, I do not believe that there is a case for changing the status quo.
Schedule 2 seeks to amend the Income Tax Assessment Act 1997 to increase the scope for tax deductions for business related capital expenses that are not otherwise recognised and which are not denied a deduction elsewhere in legislation. The provisions contained in the schedule will have a retrospective effect for all expenditures incurred on or after 1 July 2005. That retrospective effect will be beneficial to those receiving the concession. These business expenditures I refer to are better known as black hole expenditures, which can include pre and post business ownership capital expenses or capital expenses not included in the cost base of an asset that induces a capital gains tax event. Nor are they included in the cost of a depreciating asset. Consequential amendments are also made to the cost base for capital gains tax assets and cost rules for uniform capital allowances assets.
The projected cost to revenue of the amendments contained in schedule 2 is significant at approximately $219 million over four years. The quantum of this figure concerns me principally because of the fact that the legislation as proposed is, I think, decidedly vague. I find this perplexing since the government’s mind-set appears to be: if the problem is vague, let us address it with a vague solution. It does not take a team of taxation advisers to know that the best means of addressing a vague problem is to try to nail it down with a liberal dose of clarity.
Despite the vagueness of the wording of the proposed legislation and the limited explanation provided in the explanatory memorandum, I acknowledge that this is a longstanding and legitimate business tax concern that was the subject of the Ralph review and does need to be addressed as an equity and efficiency measure. The danger is that the lack of clarity in the proposed measures may leave the door open to undesired or unexpected tax avoidance by unscrupulous corporations. My problem is not with those who deal with this amendment in a legitimate manner but those who might seek to deal with it an illegitimate manner. This is a concern and I note that the member in the lower house Joel Fitzgibbon, the shadow minister, in his speech in the second reading debate, indicated that he would seek assurances from the government that the wording of schedule 2 was not too loose. Schedule 2 as a business equity and efficiency measure that costs $219 million over four years does need careful monitoring to ensure no abuse or unintended consequences, and I hope that the Treasury officials responsible for monitoring that area keep an eye on it.
The Democrats strongly support schedule 3. It is a long overdue measure which seeks to help deter the promotion of tax exploitation schemes and is a long awaited measure that addresses the awful experiences of the tens of thousands of unsophisticated Australian investors who were caught up in a number of failed or illegal mass-marketed tax exploitation schemes. The schedule amends the Taxation Administration Act 1953 and the Income Tax Assessment Act 1997 to introduce a new civil penalty regime for promoters of tax exploitation schemes or schemes based on a taxation product ruling that is promoted in a materially different way from the context of the ruling. It is a pity in some ways that it is just a civil penalty regime; some of them deserve to go to jail, in my view.
The powers of the Commissioner of Taxation are further strengthened to enable the commissioner to enforce a voluntary undertaking given by a promoter and to apply to the courts for an injunction to stop the promotion of the tax avoidance or tax evasion scheme. Businesses involved in high-risk but legitimate tax effective schemes can avoid these proposed measures by seeking a tax ruling from the commissioner, which seems very sensible. This is a two-pronged attack on the illegitimate promotion of tax avoidance measures as the new legislation encompasses new taxation schemes that are considered to be illegal as well as taxation schemes that are based on existing taxation rulings by the ATO but which do not comply with the measures and intent of the ruling. Businesses involved in high-risk but legitimate tax effective schemes should be able to get a ruling from the commissioner at a negligible expense. These measures are expected to be revenue positive with an estimate of approximately $75 million over the forward estimates period. That figure alone, which is very low compared to the billions previously at risk, shows how successful the many years of ATO crackdowns on mass-marketed tax effective schemes have been.
When the Australian Taxation Office announced that it had broadly accepted the settlement concessions for mass-marketed tax effective schemes—as spelt out in the September 2001 second report of the Senate Economic References Committee—I commended the taxation commissioner, Mr Michael Carmody, for his decision to accept that victims of unscrupulous promoters should be granted relief from tax penalties and interest. I also supported his confirmation that he was going to go hard after the promoters and advisers who contrived these disallowed schemes. And those who tried to come to my office pleading on that count—I have to confirm that I have given them short shrift.
The commissioner had accepted that there was a difference between unscrupulous promoters, who deserve the full and strong application of the law, and the thousands of victims who were duped into losing their hard-earned savings. Senators Gibson, Murphy and Murray negotiated that investor victims be entitled to a deduction for actual cash outlaid, to full remission of penalties and interest, and to a two-year interest-free period in which to pay the scheme debt. In the interests of protecting revenue I continue to strongly support the ATO in its efforts to end tax system rorting via mass-marketed tax effective schemes.
As a member of the Senate committee negotiating team I worked hard to convince the ATO that most participants in tax effective schemes were not tax cheats. Most were honest people, and it was rewarding to see that the ATO offered a mostly fair solution to this complex and painful tax crisis. I say ‘mostly fair’ because there were still some hard luck cases and there are some outstanding cases that deserve to have a lenient eye cast over them. But putting that cost—$75 million over four years—in this bill into perspective, on that negotiation by Senators Gibson, Murray and Murphy alone the Senate had won an estimated $900 million for approximately 40,000 Australians, which was an unprecedented and, I regret to say, largely unacknowledged achievement. The mass-marketed tax effective schemes problem is not what it was, thanks to ATO action, however slow they were originally to get off the mark.
The provisions contained in schedule 3 of the bill will go some way towards tightening up the regulations governing mass-marketed tax schemes that can target unwary investors. These measures are long overdue and they do have the Democrats’ full support. Schedule 4, the final schedule in the bill, is a technical clarifying amendment that concerns the mechanics of the GST in relation to prepaid phone products. The amendment confirms that GST is to be paid on redemption of the prepaid expense and not at the time of prepurchase, as per the provisions contained in division 100 of the GST act 1999. As these measures clarify the intent behind the operation of the GST, they have my support.
I noted the remarks of the shadow minister concerning the GST and the fact that I think, by his calculation, there have been over 1,600 amendments to the GST since it came into action in 2000. I am not at all surprised, frankly, because if you have a measure that delivers over $30 billion worth of revenue and is a complicated piece of tax machinery it will need periodic amendment, and I do not personally think that is a problem. I want to put on the record yet again my continuing strong support for the GST and my surprise that the Labor Party in the federal sphere continues to argue negatively about it when it is the single best thing that ever happened to the Labor premiers who now govern the eight governments of the states and territories, and is probably largely responsible for them remaining in power as they do at present.
I am always astonished by those on the progressive or the left or the centre side of politics who argue that the conservatives were wrong to introduce it when those on the progressive or central left side of politics argue for more expenditure for police, for roads, for schools, for health, for environment and for state services when it is money they needed—a secure amount of money—and that is what they get. It is no accident that the states and territories are better off financially they have ever been, although I obviously recognise they still have lots to do.
Whilst I am on the subject of the GST, there have been some remarks about the circumstances the Democrats find themselves in currently, with low public support, and the indication from some people that this is the consequence of Senator Lees and the majority of her colleagues negotiating the GST. I will remind the chamber—because people do have a short memory on these matters—that the Democrats went to the 1998 election saying we would support the GST in certain circumstances. We negotiated in 1999—we did not get everything we wanted; you never do in a negotiation. The GST was introduced in 2000. In 1998, saying we would support the GST under certain circumstances, we got four senators elected. In 2001, the year directly after we had introduced the GST, we got four senators elected. So those who think the GST is responsible for the demise of the Democrats are wrong. I freely admit it impacted on our support, our unity, our sense of coherence and so on, but I do get annoyed when people trot out a myth without regard to the facts.
The last measure I want to attend to is the opposition’s amendment concerning bribery. I would be very interested to hear the government’s rebuttal. On the face of it the argument put by the opposition for making the tax act and the criminal act consistent seems attractive. I would draw the attention of the chamber, particularly Senator Sherry, to page 21 of the Notice Paper. You will find a set of questions from Senator Murray to the Minister representing the Treasurer and the Minister for Justice and Customs concerning bribery and corruption and Australia being well behind the ball in terms of the United States’ and the United Kingdom’s laws. I think that is a useful adjunct to the case you are making for Australia sharpening up its assault on bribery and corruption. I have asked an interesting set of questions in the Notice Paper of the ministers concerning weaknesses, inconsistencies and problems with attacking bribery and corruption. I do hope the Treasurer and the Minister for Justice and Customs will respond rapidly to what I regard as very serious questions.
I did not intend to speak on the Tax Laws Amendment (2006 Measures No. 1) Bill 2006, but I feel compelled to answer a number of allegations raised by the ALP in relation to two matters. The first matter was the question of bribes and the second was the unfortunate attack on the Australian Taxation Office. I remind the Senate and particularly the ALP that the Westpoint problems were far wider than what the spokesman pointed out tonight. They were far wider than just mis-selling to self-managed funds. I remind the Senate that these schemes were very complex and were perpetrated to avoid the oversight of the main regulator—the Australian Securities and Investments Commission, generally referred to as ASIC.
What I found appalling and unfortunate was the attack on the ATO. As we all know, the ATO does not publicise its audit routines in respect of individual taxpayers, particularly in circumstances where they have complied with the law and are certainly not before a court. The ALP does not understand the oversighting by the Australian Taxation Office in relation to over 300,000 small superannuation funds. The tax office does not have a consumer protection role as ASIC does. That is not in its charter and it is not in the law in relation to these small funds. The responsibility of the Taxation Office, I remind the Senate, is to ensure that these small superannuation funds of less than five members comply with the law. It is not to exercise a consumer protection role. That is the responsibility of ASIC.
The other matter that I wish to remind the Senate of is the ALP amendment in relation to the allegation of bribes. What the opposition does not understand, I think, is that bribes are not and never have been tax deductible. I repeat that for Senator Sherry’s benefit: they are not deductible as such and they never have been. The matter is not as simple as the opposition tries to portray it in this debate. I think it is important to raise these matters. We have circumstances where the facilitation payments are not separated on the invoice. I would be very surprised if any such exporter actually itemised on the invoice or document for overseas sale a facilitation payment charge. So, where those facilitation payments are not separated on the invoice but are included, for example, in the price per tonne of the wheat, I would suggest that, in the absence of correspondence and other documentary evidence, it will be very difficult to prove a component is what I might call a facilitation payment, particularly where the price is agreed to by both the buyer and the seller.
Are you defending AWB?
I am stating that it is a very difficult case that you are putting on the Taxation Office. It is not as simple a situation as you would make out. I am not supporting bribes. I am just pointing out the hard facts of life.
Senator Sherry interjecting—
Senator Sherry, you have missed the point. The point is that these payments would not have been itemised separately. They would have been included in an overall price. In the absence of correspondence and other documentation, the tax office in any circumstances would find audit activity along the lines that you are suggesting very difficult. I think it is important to clarify these two points. The first point is that the tax office does not have a consumer role in relation to protection of the members of small superannuation funds. The second point is that bribes or facilitation payments are not and have never been tax deductible.
I commend the Tax Laws Amendment (2006 Measures No. 1) Bill 2006 to the Senate.
Question agreed to.
Bill read a second time.
Bill—by leave—taken as a whole.
I note that Senator Watson is still here. I just want to clear something up. In referring to my comments about the tax office, self-managed superannuation funds and, in particular, Westpoint, I do not suggest that Senator Watson intentionally misconstrued my remarks. But let me make very clear what I am saying about the tax office and where I think the tax office has failed in its duty and responsibility—and I said this at the Senate estimates hearings. The tax office regulates self-managed superannuation funds. It has direct responsibility for their regulation. I accept Senator Watson’s point that ASIC has effectively direct responsibility for regulation of financial planners. That is a fact. It also has responsibility for independent clearing houses. That is a fact. ASIC does not have legal authority—although it is being contested, as I understand it—over so-called promissory notes, which were the financial mechanism in respect of Westpoint entities.
My point of concern about the tax office is that, since ASIC now knows the names of the planners who were promoting the use of self-managed superannuation funds in some, but not all, cases in respect of Westpoint, I asked the tax office at estimates—I did not want individual names and I did not ask for individual names of planners from ASIC; I specifically refrained from making that request—
Senator Watson interjecting—
I criticise those planners but I am criticising, Senator Watson, the lack of action by the tax office once it knew that abuse was occurring in respect of Westpoint entities and its failure to go and check the investments in Westpoint through self-managed superannuation funds. It seems to me to be reasonable, as ASIC is investigating the activities of a number of planners with respect to the establishment of self-managed superannuation funds—that is fact; ASIC is doing that—and ASIC meets regularly with the tax office, so I am told by both ASIC and the tax office, that part of that investigation, given that the tax office has regulatory oversight of self-managed superannuation funds, would at that point be—
It’s not a consumer protection role.
But it does have responsibility, Senator Watson, for regulating self-managed superannuation funds. It seems to me to be not unreasonable that the tax office would go and check the self-managed superannuation funds through which investments were placed in Westpoint to see if they comply with the law. They may well comply with the law. We do not know because the tax office has not checked. That is my concern about the tax office’s lack of activity in respect of Westpoint—it has not checked. The tax office admitted that to me at Senate estimates. I was not asking it for names or who it had checked or had not checked. I wanted to know whether the tax office had specifically followed through on the self-managed superannuation funds. It has regulatory oversight with respect to the Westpoint investments. That is what I wanted to know, as a matter of fact, and the tax office said, ‘No’.
The tax office may not have enough resources—it is only checking 3,000 out of 300-odd thousand a year—and I think that was implied in a response from one of the tax office officials. But the fact is that it has not attempted, at least not to the date of the estimates hearing, a specific check on self-managed superannuation funds for which it has regulatory oversight.
Senator Watson interjecting—
It was given it to comply with the law. It has not started to do that. That is what I am suggesting, Senator Watson. I am critical of the tax office for not having begun that process.
Senator Watson interjecting—
It does have the power to regulate self-managed superannuation funds within the various acts, but it has not bothered to check yet, Senator Watson. That is my point. I do not suggest that the tax office is solely responsible. There is a very wide-ranging debate about this in respect of ASIC and what it did or did not do and whether there is power with respect to promissory notes. There are legitimate criticisms about financial planners and the commissions that were being charged in some cases. There are a whole range of issues. But in the context of the schedule that we are dealing with in this piece of legislation—which rightly, in Labor’s view, imposes sanctions against promoters of these tax schemes rather than placing all of the responsibility on the victims of them—I made a passing comment about what I think was a reasonable critique of the tax office in respect of self-managed super funds and the Westpoint financial scandal.
The amendment we are considering, as I outlined in my speech in the second reading debate, brings the tax act in line, quite precisely in its wording, with the provisions that we have in respect of bribery in this country.
Senator Sherry, if you are going to turn to your amendment, I do not think it has yet been formally moved. Would you move that?
Thank you, Mr Acting Deputy President. I move opposition amendment (1) on sheet 4892:
(1) Schedule 2, page 39, (after line 10), at the end of Part 2, insert:
Part 2A—Other business related costs
Income Tax Assessment Act 1997
50A Subsection 26-52(4)
Repeal the subsection, substitute:
(4) An amount is not a bribe to a foreign public official if:
(a) it is incurred for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature; and
(b) the value of the benefit was of a minor nature; and
(c) as soon as practicable after the loss or outgoing was incurred, the person made a record of the loss or outgoing and the record complies with subsection 70.4(3) of the Criminal Code Act 1995.
On the face of it, there are very minor wording differences, as I pointed out in my speech in the second reading debate. We have based the amendment on the observations and critique of the OECD and the antibribery convention of 1997, seeking to ensure that the Senate adds an amendment that aligns the tax law with the Criminal Code. There was a fair amount of discussion about this in principle, before I dared to mutter that name ‘AWB’ at the estimates hearing and the minister suddenly went into high alert at those magic syllables. But we had a fairly significant discussion on it before we got to AWB. I think it was the mention of the number 300 million that got the minister interested in my line of questioning.
We know—and it was an interesting exchange—that the tax office has not had to deal with any taxpayer under the current provisions. That was clear from the tax office’s evidence. There is some doubt as to the tax office’s powers. We seek to remove that doubt so that no-one can get away with claiming as legitimate deductions what effectively, even though not known at the time, were bribes. We do not want the ATO to have absolutely any doubt about its capacity to ensure the collection of tax owing where a false claim has been made relating to something which was effectively a bribe. That is a very serious matter, and we do not want any doubt over the tax office’s powers in respect of its ability to collect the tax owing and apply the penalties to what are effectively bribes.
I have a few questions for the minister. On the surface, this opposition amendment is an attractive proposition to get consistency between the Criminal Code and the tax act with respect to the measure. I am fortunate in that I am dealing with a minister who is a barrister. If there is an inconsistency between the two, if someone had made a payment which the tax office had not regarded as a bribe under their legislation and had given a tax concession and then, subsequently, that person was prosecuted under the Criminal Code for the same transaction as having paid a bribe, I would assume that a reasonable defence for that person would be that they had already been allowed that payment as a legitimate one under the tax act. It would seem to me that to consider the matter otherwise would introduce the notion of double jeopardy. As a person who is not a lawyer but has had a lot to do with the law, that would be the first proposition I would seek to have tested.
The second thing that concerns me is that I suspect it is far more likely for these matters to turn up in tax affairs than it is for them to turn up in criminal matters. I understand that, to date, there never has been a prosecution under the Criminal Code for bribery as also determined under the tax act. I cannot recall whether the tax office have advised us whether there have been instances where this matter has been dealt with under tax affairs, but my assumption is that it is more likely to turn up in tax in the process of examining transactions than it is in the criminal sense. My expectation is that the difference between the two has arisen by accident. So my question is: did it arise by accident? Perhaps it is necessary to make the two more consistent on a practical basis.
Firstly, I will deal with the amendment that Senator Sherry has now moved concerning the alignment of the definitions of facilitation payments in the tax act with those in the Criminal Code. This is a very interesting area. I can recall very clearly chairing a special subcommittee of the Joint Standing Committee on Treaties that looked critically at the treaty and the enabling legislation. My memory is a bit hazy and I do not quite recall whether we actually dealt specifically with these issues, Senator Murray—I am just thinking about it as I respond to Senator Sherry.
The government has of course now adopted the OECD’s 1996 recommendation that member countries deny tax deductibility for bribes made to foreign public officials. That comes on top of the key strategy of making it a criminal offence to pay bribes to foreign public officials. As indeed debate has reminded us all, it was part of the OECD’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which came into force in Australia on 17 December 1999. In October 2006 Australia will respond to the OECD’s working group on bribery on how recommendations in its January 2006 report, which examined the convention’s application, have been addressed. The Attorney-General has carriage of responding to the OECD report.
As to whether the law in relation to facilitation payments is not aligned, the OECD report itself noted—and this deals to some extent with the alleged lack of congruence between the two:
The ATO believes that the definition of “routine government action” under subsection 26-52(4) of the Income Tax Act, which is identical to the definition under subsection 70.4(2) of the Criminal Code, is sufficient support to restrict facilitation payments to those of a minor nature. It is the position of the ATO that due to the definition of “routine government actions” of a minor nature, as specified under the Income Tax Act, it is not possible that a payment in order to obtain such an action could be anything but “minor”.
Moreover, the deputy commissioner in charge of serious noncompliance indicated at the recent estimates hearing—at which I was present, as Senator Sherry alludes—that, in practice, the income tax law and the Criminal code have the same requirements. For those reasons, the government does not support the amendment.
Further, in response to Senator Murray, the Criminal Code sets out its own points of defence. The code of course is a separate act to the Income Tax Assessment Act. It is not a defence to say that a tax deduction has been allowed. I am pretty sure that that is the correct position—I am getting nods. I think that deals substantially with Senator Murray’s points. For those reasons, the government will not be supporting Senator Sherry’s amendment.
I will ask a question, if I may. Of the two, which is the stronger or tighter, if you like, in terms of its wording? I have not got the Criminal Code before me, so I do not know.
I am not saying that I have the definitive answer here, but I would think that the fact that the Criminal Code does set out its own points of defence means it would prevail. I have some additional advice here, and I was correct. The purpose of the Criminal Code is to convict people of criminal offences, while the income tax law is for a different purpose, albeit a very important purpose about calculating taxable income, including what expenditure is allowed as a deduction. For that reason, we think that the income tax law is sufficiently robust but, because they have different purposes and because the Criminal Code relates to the conviction of criminal offences, those particular defences are coherent on their own. We think that, taken together, it is a coherent statement of obligations and potential defences.
Do you think that this area of legal definition, both in the Criminal Code and in the tax act, will be of interest to Commissioner Cole? I assume that, in coming back with his final report, he would be making recommendations which would include legislative changes, if those matters were drawn to his attention. I ask you the question deliberately because, even though you were saying that the government has a particular view—if there is an area of some dispute, it might be worthwhile drawing this to the attention of Commissioner Cole’s officers so that they could consider whether or not it is a matter they wish to deal with either in evidence or in their final report.
Thank you, Senator Murray, for that suggestion. Obviously, Commissioner Cole has specific terms of reference. I do not have them in front of me, so I cannot hazard a guess as to whether or not an inquiry of the kind you are referring to would be contemplated or at least whether the terms of reference would enable that kind of response. Clearly, Commissioner Cole will make findings as to a number of matters. I cannot pre-empt what view he might take of the interaction of the tax act and the other provisions, but I would think that he would not be constrained, if he thought it was appropriate, in bringing it to the government’s attention. If he feels that he needs to get some extension of the terms of reference to deal with a particular point, we have made it publicly very clear that he is entitled to ask.
My question and your answer therefore lead to a conclusion that it is open to either the government or the opposition to write to Commissioner Cole, drawing his attention to the different provisions of the Criminal Code and the tax act with regard to bribery and facilitation payments and making the case either one way or the other. That is so, isn’t it? There is nothing to prevent that.
What other parties may do is a matter for them and what view the commissioner might make of other parties writing to him about these matters is a matter for the commissioner. From the government’s point of view, we think that the terms of reference that we have given are adequate. They have been extended on one occasion, as Commissioner Cole has seen fit to ask. The position so far, as I understand it, is that, if he were to ask for some extension to his terms of reference to enable him to deal with some pertinent matter, he would be entitled to do so. I doubt very much whether the government will be doing that.
I will be brief. I do have a copy of the relevant provisions in the Criminal Code Act 1995 and the tax act 1997. As I have indicated, the wording is slightly different, but there is a difference. In the Criminal Code, division 70.4(1)(a) says:
The value of the benefit was of a minor nature ...
That is not contained in the tax act 1997. Labor believe there is some doubt, but this has never been tested before by the tax office. We believe that any doubt should be removed. These are very serious circumstances, and we believe that we should take the opportunity to correct it.
Question put:
That the amendment (Senator Sherry’s) be agreed to.
The Democrats have only one amendment, which is on sheet 4778a, which has been circulated, and I now move our amendment (1):
(1) Schedule 1, item 2, page 18 (after line 5), omit “*spouse”, insert “spouse, being a person who is living with another person on a bona fide domestic basis although not legally married to that other person, including a same sex partner,”.
We think we have stumbled on an oversight in the design of this schedule. I refer the minister to the definition in the bill of who is considered to be a temporary resident. The third item says that you are not a temporary resident, and therefore you will not get that tax benefit, if you are married to an Australian resident. Our concern is that there are an awful lot of people who are not married, who are just shacked up and have a de facto relationship, which, as you know, in tax law is the equivalent of being married. So we think that if you do not cover off that particular possibility there will be temporary residents getting this tax benefit who are not entitled to it or who should not be entitled to it because they are in de facto arrangements with Australian permanent residents or citizens. So the purpose of the amendment is to try to correct an error that we have identified. I will be interested to see whether you think we have stumbled across a hole or whether you think there is a reasonable defence.
Thank you, Senator Murray. You will not be surprised to know that I always think that there is an arguable defence. The government takes the view that your amendment about the defining spouse is not necessary because the law already defines who is a spouse. Whether that includes same-sex partners is a matter of interpretation of existing law. We think that that is basically covered and we do not see the need for, nor do we agree with having just for this particular measure, a different meaning for spouse from its definition that is contained elsewhere and that has been given in the law. That is a roundabout way of saying that we do not support the amendment because we do not think that there is quite the oversight or the problem that Senator Murray alludes to. It is for those reasons that we will not be supporting the amendment.
I will just make the Labor position clear. Unfortunately we only received a copy of this at about 7.30, Senator Murray. Labor’s position on same-sex couples and superannuation matters is clear. We have an announced policy of full equity and we have supported amendments in that regard on other occasions in the Senate. However, this is not a superannuation measure. Labor’s position is that we accept the policy intent that Senator Murray has outlined. Labor’s policy is to make an audit of all provisions of Commonwealth law. On the face of it, we are not sure, given the lateness—and I am not critical of the lateness, Senator Murray, because of the circumstances this evening where we have had to deal with legislation—
On the run.
Yes, on the run, with some understandable difficulties given the circumstances of Senator Fielding. The program had to be rearranged to meet those particular circumstances. So on this occasion we will not be supporting the amendment. We are not sure whether it is necessary for the issue you have raised. We would like to examine whether there is a gap; we have not been able to do that. In respect of same-sex couples in the non-superannuation areas right across the board, we wish to undertake an audit of all discriminatory provisions. We will not be supporting the amendment.
Strangely enough—through you, Chair, to the minister—I do not much mind if you reject it if in fact the law is as you describe. My problem is that I am concerned about the definition in the explanatory memorandum or in the bill, as I understand it. It says that a temporary resident necessitates that the individual concerned is not married to an Australian resident. If that is not exclusive or exhaustive, of course, you can add also that he or she is not in a de facto relationship. My concern is solely the potential for revenue loss. As you know, if ministers in debate give their words a particular meaning it has an effect in law in certain circumstances. If you were to give the chamber an assurance that temporary residents who are in de facto relationships with Australian citizens or residents will not be entitled to this tax concession, then I will be much more content than if you simply reject the amendment and we are left uncertain of the application of the law. This is my understanding of Senator Sherry’s reaction. He seems to indicate he is not certain of the law and he will have a look at it later on. I would rather be assured here and now that de facto relationships with an Australian citizen or resident will exclude a temporary resident from the tax concession.
Thank you, Senator Murray and Senator Sherry. I appreciate the purport of the comments that you have placed on record, but my advice is that the amendment is not necessary because, as I have said, the law already defines who is a spouse—de facto or otherwise—and whether that includes same-sex partners is a matter of interpretation of the existing law. My advice is that the government simply does not see the need for, nor does it agree with having, for this purpose anyway, a meaning for spouse just for this measure that is different from its meaning that is pretty clearly defined elsewhere in the law. While I do appreciate the purport of your contribution, Senator Murray, that is my advice and I think that is correct. From previous occasions when I have looked at it, I believe it would be covered and there is no ambiguity.
I was left unable to determine whether the legislation as it stands does cover same-sex partners. Could the minister tell us yes or no to that?
Thank you, Senator Brown. My statement to the chamber was that the law already defines who is a spouse, de facto or otherwise, and whether that includes same-sex partners is a matter of interpretation of existing law. So in those circumstances we consider that the issue of same-sex partners is covered by the definitions.
Well, is the government creating legislation? The minister says it is a matter of interpretation. Does it cover same-sex partners or does it not?
I do not know how else to say it: it is a matter of interpretation. For the purposes of our deliberations here in respect of this bill, it is certainly open to interpretation that it includes same-sex partners. That, as I understand it, would be a conclusion that could be drawn from the way in which it is cast and the way in which the interpretations define who is a spouse.
Is it the minister’s intention that the legislation, as it stands, covers same-sex partners?
What I said was, and I will say it again, that we consider that Senator Murray’s amendment is not necessary because the law already defines who is a spouse, which includes de facto or otherwise. It is open to interpretation that it also includes same-sex partners. That is a matter of interpretation of the existing law and we think that that particular situation is covered.
I will not prolong this but the minister is obviously ducking and weaving. It is open to interpretation by whom, for goodness sake? She ultimately means that a court will have to interpret it. The proper way for legislation to go through this parliament is to make it clear to the courts what is intended. If the government intends to cover same-sex partners it should say so. That is what Senator Murray’s amendment does and that is why we should support it and that is why I hope the Labor Party will support it as well.
It is not just sloppy; in this case the minister herself is saying that we will leave it open to a court to determine what we mean by the words we have here. You should not do that; you should be very clear about it and leave nobody in a position where they have to pay lots of money to get a good barrister to go to a court and argue that words that are not clear mean such and such. We should make it clear for them. If the government intends this to cover same-sex partners then it should support this amendment and so should the opposition.
The question is that the amendment moved by the Australian Democrats on sheet 4778a be agreed to.
Question negatived.
Bill agreed to.
Bill reported without amendment; report adopted.
I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
Consideration resumed.
Bill—by leave—taken as a whole.
The question is that the bill stand as printed.
I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 28 March 2006.
I would like to raise some general matters going to a number of recommendations made by the Senate Legal and Constitutional Legislation Committee which went to issues that perhaps could not easily be put in a format consistent necessarily with an amendment. I refer particularly to recommendation 6, which states:
The Committee recommends that, consistent with the existing arrangements for telecommunications interception, immediate action be taken to ensure the enforceability of the stored communications provisions on State and Territory agencies by requiring complementary legislation to be enacted as a precondition to being granted the powers of an enforcement agency under the stored communications regime.
This is a matter that has been utilised by the Attorney-General’s Department in the past where they have put preconditions before they allow a state authority to be granted that power. In fact, one notable example of recent times comes to mind where there was a requirement for matters to be dealt with before the Attorney-General would indicate that they could utilise that interception power. In looking at that provision, the committee considered it essential that the Commonwealth has the ability to enforce the obligations prescribed in the bill relating to accessing stored communications:
... immediate action be taken to ensure the enforceability of the stored communications provisions on State and Territory agencies ...
The report states at paragraph 3.65:
The Committee considers that consistent with the arrangement for the existing telecommunications interception regime, State and Territory Parliaments should be required to enact complementary legislation for access to stored communications as a precondition to being granted the powers of an enforcement agency under the stored communications regime.
It is recognised that there is a particularly short time frame to enact this legislation and ensure that it can start. I note that there is obviously a requirement that the matters be brought to a conclusion this week—that seems to be the government view. But these matters could be dealt with by an undertaking here by the government that they will abide by the existing arrangements in place and that they intend to ensure that those matters are dealt with as they have been dealt with in the past.
States have accessed telecommunications interception that way. In terms of stored communications, although it is a different warrant regime it is still a warrant regime that is designed to ensure that there is an appropriate and proper regime in place to process stored communications. It would also allow state governments to utilise the regime while being bound to ensure that they meet all the privacy concerns that have been raised during the committee and by the submitters to it. I think those sorts of issues could be dealt with by the government providing an undertaking to that effect.
Also, more generally—I will move on, but I will come back to that particular issue—and it is really only a case of reiterating what I had an opportunity to say in part during the second reading stage of the debate: this process has effectively been shortened by the government’s desire to bring this legislation forward in this manner. I can complain a number of times about that, and I suspect I will come back to a couple of complaints, but it is perhaps best to get that out of the way early and get it off my chest. There could have been a better process in place. The government chose not to ensure that there was a better process.
I have no complaint about the way the Blunn review was sought, obtained and finalised. The government followed committee recommendations on what was effectively a very difficult issue. I guess I am coming to how you work out what you do with stored communications; how you ensure that there is a balance, with privacy concerns being taken into consideration and safeguarded; and how you then deal with ensuring that our law enforcement agencies have appropriate powers to fight crime. Up to that point, one could only say that the government had acted reasonably, but we find that in the second part, which is the part where the legislation to effect the Blunn review recommendations has come forward, it is disappointing to see that the government is now rushing the parliament. It could have been done in a more metered and better way. It could have been phased in. It could have been brought forward in parts that were able to be dealt with—particularly the stored communications regime. It is a positive regime and is recognised as a positive regime to protect people’s privacy. That could have been the first tranche of this review of the Telecommunications (Interception) Act 1979.
Blunn recognised that this will not be the first or last time that this legislation will be reviewed. It seems that the government has cobbled together some issues that could have and would have been better dealt with at a later stage. Having said that, the submitters to the committee also recognised that they were being short-changed in terms of time and their ability to engage in the committee process. That is my second complaint: legislation should be subject to quality review by the committee. Submitters should have sufficient time to examine legislation and have reasonable time to ensure that their responses are both qualitative and quantitative in the sense of being able to ensure that they deal with all the issues, deal with them in a qualitative way and highlight the issues that they want to, rather than being put through the test of being rushed through, sometimes without being able to consider their submissions and look at other submissions. That would ensure that the process is the best one possible. Also, the committee must be able to ensure, when it hears from submitters, that it has sufficient time to listen to submitters, query submitters and give them a reasonable opportunity to come back on issues that may need to be clarified. The submitters in this instance were given a very short timetable to turn around any responses or queries the committee might have had.
The argument from the government might be that that was driven by the necessity of meeting the deadline. The government set that deadline. It could have changed the deadline if it so desired; it could have extended it further; it could have done a range of things to mitigate it. It did not. We then have to deal with the reality that the government is setting the deadline and driving to it. It is easier if I get those complaints out of the way first, rather than make them every time I stand up to deal with an amendment. I know they are legitimate complaints and I think that in this instance the government has failed to allow the committee to adequately scrutinise this bill in a holistic way. Coming back to the undertaking I suggested: if the government wants to provide that, it would be helpful.
As I said earlier, the government will continue to consider the recommendations made by the Senate Legal and Constitutional Legislation Committee, and that consideration will take place over the coming months. In the event that further amendments are necessary, the government anticipates addressing those issues in the spring sittings this year. I cannot give an undertaking on the run tonight as to whether any particular recommendation will be adopted or not, but I can say that the government will consider recommendations made by the Senate committee in its report. The Attorney-General has made that clear and I reiterate that tonight. I think that is relevant to the point that Senator Ludwig has made.
I heard the response in respect of that matter. There are a couple of other matters that I want to deal with before we start on the amendments themselves. One question relates to recommendation 20. The issue there is the government’s view in respect of recommendation 20, in that the committee recommended:
... that the proposed section 46(3) (which contains the requirement that the issuing authority must not issue a B-party warrant unless he or she is satisfied that the agency has exhausted all other practicable methods of identifying the telecommunications services used) be amended to exclude the word ‘practicable’...
However, it comes to mind that there may be some practical, as distinct from practicable, problems with that approach. The essence of recommendation 20 was to ensure that B-party warrants are used as a last resort. I think that was proposed in the government’s explanatory memorandum. As I understand it, with recommendation 20 the committee wanted to ensure that the amendment not only reflected the explanatory memorandum but also ensured that the legislation provided for B-party warrants to be used as a last resort and recorded that.
Labor have not at this stage moved an amendment to delete that. We first wanted to hear the government’s view regarding recommendation 20. We obviously have a little time and, if we see the need to persist with that amendment, we will. But before we consider that we want to see whether the government, in any of its amendments or, subsequently, during any further review, is going to strengthen the last resort provision and whether it sees any difficulty with deleting the word ‘practicable’.
The government is not dealing with that aspect at this point in time. That would be one of the matters which would fall into the category that I mentioned earlier—it would be considered over the coming months. At this stage, the government is inclined to oppose any amendment which would reflect that, but that does not mean to say that the government would not continue to give consideration to these recommendations. As I said earlier, these matters have not been included in the government amendments tonight because the government is not prepared to give an undertaking one way or another on those particular issues tonight. That is why the Attorney-General has left the gate open, so to speak, on the consideration of recommendations generally made by the committee.
We have picked up some of the recommendations made by the committee, and they are reflected in the amendments which the government are moving tonight. But, as for the remainder, at this stage we are not prepared to make them the subject of amendments—notwithstanding the fact that we would still continue to consider those recommendations. As in recommendation 16, I appreciate the point Senator Ludwig made, but the government’s view is that at this stage we cannot give an undertaking as to support or otherwise. If we were pushed to the issue so that we had to vote on it tonight because of an amendment which reflected those recommendations then the government would oppose that.
That is farcical. The government has dumped this legislation, which is a total overreach and an invasion of the rights of Australians, on the Senate and on the people of Australia. There was a very short Senate inquiry, peak national legal and other bodies submitted to that inquiry, and the government says, ‘We’ve got some amendments which pick up a couple of recommendations from that inquiry, but we say to the Labor opposition, “Trust us; we’ll look at others further down the line.”’ What sort of process is that? This is the makings of a gross invasion of the privacy rights of innocent people in Australia. It is not antiterrorist law. I cannot ask the minister, ‘Is this antiterrorist law?’ It would be a waste of time because the minister does not really know. He is here doing the Attorney-General’s bidding.
What we do know is that this is a massive increase in the ability of surveillance agencies, ultimately controlled by the government of the day—this Attorney-General and this Prime Minister—to look into private affairs. We all know that the communications being looked at here can be of the most intimate affairs between individuals who are entirely innocent and not even suspected of anything. It is such loose and degrading legislation that the spy agencies involved—and we go beyond spy agencies, because a number of agencies are now involved—will be able to pry into people’s private business without suspecting them of anything. They will be able to keep records of that and potentially pick people up for some other breach of the law which has nothing to do with what the agency set out to track because of what until now would have been illegal snooping on the privacy of Australians.
Let me give comment here from an article written by Mr George Williams and Mr David Hume. We know what remarkably incisive minds they bring to this legislation. On Friday in the Hobart Mercury they wrote:
Federal Parliament is to … debate next week a law that conjures up modern-day images of Big Brother.
That is this law we are dealing with here now, which the government is saying to the opposition: ‘Trust us. Wait a while. We might ameliorate it a bit with some later amendments.’ That is nonsense. Mr Williams and Mr Hume said:
The Bill will allow the Government to read our private emails, SMSs and other stored communications, without our knowledge.
The power will extend even to innocent people, called B-parties, if they have been unlucky enough to communicate with someone who is suspected of a crime, or of being a threat to national security.
The Government should sometimes be able to monitor the communications of innocent people.
This may be necessary to protect the wider community, where a suspect can only be tracked down through another person.
However, the Bill goes far beyond what can be justified and undermines our right to privacy more than is needed to properly enforce the law.
Our key concerns are that, first, the Government will be able to collect not only the communications between the B-party and the suspect—
that is, the innocent person and the suspect—
but also communications between the B-party and anyone else.
If you are unfortunate enough to communicate with someone suspected of an offence and, therefore, you become a B party, the government may be able to monitor conversations you have ‘with family members, friends, work colleagues, your lawyer, your doctor and so on, no matter what you spoke about’. The article continues:
Your most private and intimate conversations could be pored over, without your knowledge, by people you have never met.
This is Australia 2006 in the Howard era. Messrs Williams and Hume go on to say:
Second, in some circumstances, the Government can use the information it collects even though that information is irrelevant to the original suspect.
For example, if the Government uncovers incriminating information from listening to a B-party’s—
that is, an innocent person’s—
conversations, this can set off a chain reaction, allowing the interception of the incriminated person’s communications or of anyone with whom they communicate.
The Government could use this information to initiate a prosecution, even if it relates only to a minor offence.
Third, the Bill sets a very low threshold for ASIO to be granted a warrant.
As long as ASIO has tried other means of tracking a suspect, it only needs to show that intercepting the B-party’s—
that is, the innocent person’s—
communications is likely to assist in obtaining intelligence related to security.
This is a very wide power, particularly since, once ASIO meets the threshold, it can intercept any communications to or from the B-Party—
that is, the innocent party.
Fourth, the threshold that ASIO must satisfy uses general terms such as likely to assist and relating to security.
This vagueness creates the potential for Government agencies to misuse the power or apply it in an arbitrary fashion.
This arbitrariness extends to another aspect of the Bill. It differentiates between stored communications—
like email and SMS—
and real-time communications—
like telephone conversations.
Under the Bill, it is much easier to access stored communications, apparently because SMS and email are thought to be less private than telephone conversations.
However, now that telephone conversations often occur in public on mobile phones, many people, and particularly young people, reserve their most personal interactions for email and SMS.
These problems have been compounded by the speed with which the Government has sought to push the Bill through Parliament.
Interested parties were given only 10 days to prepare submissions on the 90-page Bill. The Senate Committee responsible for reviewing it has only two weeks to the review the submissions, hear evidence and prepare a report.
That is all over and done, since last Friday, and here is the minister saying, ‘Oh well, we’ll look at those after the bill has passed, if you don’t mind.’ Mr Williams and Mr Hume went on to say:
The dangers of a bad process are especially high because, as just one part of a recent torrent of anti-terrorism legislation, it is easy for bad legislation such as this to slip by unnoticed and unamended.
Protecting our national security and investigating serious crime are important goals.
However, we must be careful that in developing a legal response we do not lose sight of the rights and freedoms we are trying to protect.
We should ensure that, where the Government is to gain intrusive new powers over our privacy, these powers are balanced and go no further than is needed.
They conclude with this:
This Bill for surveillance powers over our emails and SMSs goes too far.
It contains more power than is needed over too broad a range of innocent communications and contains too few safeguards.
The Government should go back to the drawing board to come up with a better proposal.
What a great piece of legislation for the opposition to be supporting!
There are a couple of other matters that I also particularly want to get the government’s view on. I am going to start with another complaint—maybe I will get them out of the way earlier rather than later, during the substantive amendments. The government’s attitude is really quite surprising in respect of this process which we are now going to embark upon. Labor have sought to circulate in the chamber, albeit a little late, as best we could, amendments which give effect to many of the important recommendations contained in the committee report to ensure that the bill strikes the right balance between privacy and the requirements of law enforcement agencies—which is a difficult balancing act, may I say. But it is one that still has to be achieved. There is a legitimate role for law enforcement agencies to fight crime with the types of provisions contained in this bill.
There is also, of course, a responsibility on us to ensure that the right balance is struck, because it is important to ensure people’s individual privacy is respected and preserved. It is also important to ensure that the bill does not have any unintended consequences and that its provisions are clear and do not offend any laws unintentionally and people can operate under them in a way they can understand. But what we hear tonight is that the government will move through with the bill, then come back and continue to look at the recommendations to see how they might still be required. So some way down the track we may—or may not—find out whether it has subsequently been decided to pick up any of the recommendations. We may not even know when the government has decided not to pursue them. The legislation—as I think Blunn himself said—will still need review and, as the government has indicated, this is only part of the legislation.
What the government could do to alleviate a lot of the concerns—that even Senator Brown has—is move forward with the part of the legislation that is in fact a positive development from the status quo in relation to stored communications under section 3L of the Crimes Act, which allows agencies to access stored communications using what I refer to as ordinary search warrants. This is needed because it will improve privacy and ensure that there is an appropriate access regime. The amendments that the government have, to fix up some of the unintended consequences and some of the suggestions made by the committee, would produce an outcome that would be far superior to the present position.
We could leave schedule 2 for another time. We could continue with schedules 4, 5 and 6, which effectively are the matters that can be picked up. We know that schedule 3 relates to providing unique identifiers of handsets. That is a positive addition and does protect people’s privacy. The amendment of class 1 and class 2 in schedule 4 is a positive development. It indicates that the issuing authority has to take privacy into consideration, and therefore it is a substantial improvement to the law as it currently stands. Schedules 5 and 6 are helpful. They are procedural more than anything else and we can see the necessity for them.
That would be a way forward other than the way that the minister intends to proceed with tonight, but I do not think I am going to be able to convince the government to adopt it, although it would be a much better course. So I am going to have to deal with the matters as they arise. If the government could indicate whether or not it is keen to undertake that process, that would be helpful, but I will not hold my breath.
I move government amendment (1) on sheet PA337:
(1) Clause 2, page 2 (table item 2), omit the table item, substitute:
2. Schedules 1 to 3 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. |
This amends the commencement provisions in relation to schedules 1, 2 and 3 of the bill to provide that these schedules commence on a day to be fixed by proclamation. This amendment is required to ensure the necessary amendments to the Telecommunications (Interceptions) Regulations 1987 are made prior to the commencement of schedules 1, 2 and 3 of the bill. The amendment is technical in nature. I commend the amendment to the committee.
Labor do not oppose the amendment. We understand it is a technical amendment.
The Australian Democrats will also be supporting the amendment. Very briefly I wish to place on record—I thought I would do it in the earlier stages—once again our concern about the time frame. I notice the minister did not respond to the suggestion by Senator Ludwig regarding an outline for proceeding, so I take that to mean that we are going to go through the running sheet as suggested and see what happens.
That is quite correct: I am proceeding through the running sheet.
Question agreed to.
by leave—I move opposition amendments (1) and (19) on sheet 4882:
(1) Page 3 (after line 8), after clause 3, add:
4 Sunset clause
The amendments set out in Schedule 2 of this Act cease to be in force on 30 June 2011.
(19) Schedule 2, page 63 (after line 30), at the end of the Schedule, add:
14 After section 61A
Insert:
61C Review of operation of B-party warrants
(1) The Minister must cause an independent review of the operation of warrants to which subparagraph 46(1)(d)(ii) or (1)(a)(ia) applies to be undertaken within 12 months of the third anniversary of the commencement of the Telecommunications (Interception) Amend-ment Act 2006.
(2) A person who undertakes such a review must give the Minister a written report.
(3) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 5 sitting days after the Minister receives the report.
I move these amendments together because they relate to sunset and review, or review and sunset as the case may be, so it is more appropriate to deal with them together. A range of submitters suggested that the legislation should be reviewed after a period of time and/or that the inclusion of a sunset clause was necessary. In fact the Law Council themselves indicated during the committee process—in their submission and in their oral evidence to the committee—that an independent review two or three years after commencement, and a sunset clause, should be incorporated into the legislation.
Mr Blunn, in the Blunn review, recognised that there was a strong case for regular reviews at three-yearly intervals. In fact, he went a bit further and even proposed effectively, in my words, a standing committee. We think at this juncture a sunset provision to ensure that the legislation is reviewed and, given the nature of it—particularly the way B-party provisions would operate—is a necessity, and we see no reason why the government cannot adopt this provision. It is not technical in nature; it is one that the government has recognised in other legislation of this type. It is one that they have, in fact, embodied in other legislation of this type themselves, in the criminal area, in dealing with terrorist legislation and in other areas of that ilk. And, of course, Dr Clapham from the Office of the Privacy Commissioner supported a review. In fact, he went to the entire act and felt that provisions should be made in these amendments.
The legislation committee recommended the B-party provisions expire in five years with a review at an earlier time encompassing the broader issues about the suitability of issuing authorities. They are matters that should be dealt with. The committee made those recommendations after hearing the evidence of a range of submitters. The government should be persuaded by the force of a unanimous committee. I should say it was a majority committee, at least between government and opposition. I neglected to admit there was another report but I am sure you will go to that, Senator Stott Despoja. In a majority report dealing with these issues the committee accordingly recommended that the B-party provisions expire in five years, with a review at an earlier time.
Labor supports this recommendation for two reasons. This bill does not bring about the full recommendations of the Blunn report. We are still to see that finalised and, in fact, it is likely to take some time. Therefore, as we will be revisiting this bill, it does obviously provide us with an opportunity to also be able to review it as well. As the B-party intercept regime will be a new component of the legislation it is important that it is also reviewed to see if the regime is meeting the issues that have been raised—that is, it is meeting privacy concerns, that the safeguards that surround those privacy issues are working and that law enforcement agencies are not over-reaching in the B-party intercepts regime. For those reasons Labor supports the amendments and seeks that the government agree that they are both necessary to ensure that the legislation will, in fact, work the way it was intended.
The Australian Democrats will be supporting the amendments moved on behalf of the Australian Labor Party by Senator Ludwig. He is quite right to point out that there was a supplementary report with ‘additional dissenting comments’, which I think was the long-worded title of the Australian Democrats’ report. I wish to emphasise the fact that we did do a report to that committee—that we were involved in that committee process albeit with a truncated time line. Nonetheless, I think it was—as it always is—a worthwhile process to allow people to provide submissions, both in writing and verbally, and to hear from and question the department, which, as always, is keen to present to the committee and I think is usually extremely helpful in answering our questions.
I think there are, though, very good reasons for a review of this legislation and in particular—dealing with the first amendment of the Labor Party—the proposed sunset clause. Predictably, I would argue that a five-year period is insufficient, but it is better than the bill in its current form. Senator Ludwig has, of course, referred to the recommendations of the committee, and the Democrats actually support the recommendations of that majority committee report. We think that they should have gone further, hence the additional recommendations contained in my report. Nonetheless, the committee view in relation to a sunset clause and independent review is a recommendation that we endorse. The actual committee report says:
The Committee considers a sunset clause to be appropriate for the B-party interception warrant provisions; it would serve as a catalyst for a review of the whole telecommunications interception structure, and in the light of advancing technology would offer an opportunity to assess the adequacy or otherwise of this regime.
So, in light of this recommendation that has strong support from those of us who were involved in the committee process, but also support from members of the government because, as Senator Ludwig has quite rightly pointed out, this is a majority recommendation from a majority committee report—the chair’s report—I would hope that the government would consider it. I do not think this is a particularly scary amendment. I think it is an accountable amendment that makes a lot of sense and I would hope that the government would support it and, if not, would outline specifically what the problem is with this particular amendment.
It would be better if we were dealing with a time frame of, say, three years. Anything sooner—when you are dealing with such fundamental, such significant legislation—I think is good. I think we should recognise the Blunn report recommendations in relation to a three-year period in order to, if nothing else, keep up to date with evolving technology—so it is not even from the perspective of guarding rights or protections or understanding how the act is operating or whether there are infringements or issues. From the perspective of the technology and the rapid advancement of that technology, surely there is a very strong argument for regular review and, indeed, update. I think it provides a good opportunity to address whether or not the specifics of the warrant regime are working and are appropriate.
In relation to amendment (19), while that deals specifically with the B-party warrants, I think the arguments apply to both. I think certainly there is a strong case for independent review, as has been proposed. The Australian Democrats strongly support any kind of public accountability provision. Obviously, there is built into this amendment the idea of the tabling of that particular report or review in both houses of parliament, which is a stipulation that we would always make. So, with some proviso, there is certainly support from the Australian Democrats for this amendment—in fact, for both amendments.
The government does not think that these amendments are particularly scary, as Senator Stott Despoja mentioned. The government does not think they are necessary for two reasons. Firstly, as I have indicated earlier, the government will be considering further recommendations from the Senate Legal and Constitutional Committee report. That in itself is an ongoing consideration which has been firmly committed to by the government during the course of this year.
Added to that, in relation to the B-party warrants, government amendments (16) and (17) will involve more detail in relation to the reporting of B-party interceptions. That will provide that, in the reporting to the parliament, there will be more information given in relation to those B-party interceptions. That in itself will provide the parliament with an ability to be well informed of the B-party interceptions. That in itself is an aspect of accountability, scrutiny and, indeed, review if the parliament wants to review any of those reports. We see reports in this chamber all the time. There is debate and discussion. We think that, for those two reasons, it is unnecessary. We have had the Blunn report, which was extensive. We have acted on that. We have had the Senate Legal and Constitutional Committee report.
Indeed, the genesis of all of this goes back to 2004. I remember very clearly the difference between the Australian Federal Police and the Attorney-General’s Department which was much publicised at the time. That was in relation to the differing views to these interceptions, which were made more problematic by virtue of modern technology. The question then being asked was whether an email was a letter or a telephone call, as someone put it at that time. We had to address that. We have been doing that over the last two years. We have had the Blunn report and Senate committee reports. I really do think that to incorporate any further review mechanism in this legislation would be unwieldy, particularly when you have regard to those other two matters that I mentioned.
I will not miss the opportunity, if you are going to have a look at this provision a bit further, to also impress upon you that there are two parts to recommendation 25. We did not seek to move an amendment to give effect to the second part, because it really surrounded a broader number of issues. That encompassed the suitability and effectiveness of the AAT members in the warrant-issuing regime together with consideration of ways in which the act may be amended to take account of emerging technologies such as peer-to-peer technology. There are a couple of others that I will not go to now given the lateness of the hour, but there are a number of emerging technologies.
Just so that it is on the record, if you are going to look at it, it is not limited to only those matters of review of the legislation to date but also it encompasses those issues that are a bit broader in compass. There is an important consideration to be looked at about the issuing authority. There is a significant number of these warrants being obtained through the issuing authorities and, more particularly, reliance placed on the AAT. I think there needs to be an explanation as to why that is, if not an examination to ensure that the system is working effectively and efficiently—also that it is not too efficient, in the sense that privacy considerations are not overlooked. That matter should also be included.
Question put:
That the amendments be agreed to.
I move Greens amendment (1) on sheet 4889:
Schedule 1, page 4 (after line 4), before item 1, insert:
1A After section 2
Insert:
2A Limitations of operation of Act
It is the intention of the Parliament that:
(1) To the extent that there is any inconsistency between this Act and Australia’s obligations under international treaties including the International Covenant on Civil and Political Rights, Australia’s obligations under those treaties prevail and override the operation of this Act.
(2) Nothing in this Act authorises the interception of communications:
(a) of a person unless the person is suspected of engaging in the planning of, or other involvement in, terrorist acts or murder;
(b) where those communications contain information which is:
(i) the subject of legal professional privilege; or
(ii) derived from information that is the subject of legal professional privilege.
(c) where those communications contain information:
(i) the subject of doctor-patient confidential medical communications; or
(ii) derived from information that is the subject of doctor-patient confidential medical communications.
(d) of Federal or State Members of Parliament;
(e) of High Court judges or Federal Court judges.
The amendment is to limit the operation of this legislation. It badly needs its wings clipped. That is of course not going to happen, because the government has the numbers.
Thank goodness for that.
Senator Boswell, who has not been about tonight, says, ‘Thank goodness for that.’ You are waiting for the 11 o’clock finish, aren’t you? Because he has not been here for the debate, he must not know what is in this legislation, or he would be horrified.
The Greens amendment limits this legislation, which allows government agencies—a whole stack of them—to catch SMSs and listen in to phone calls, mobile communications and all of the things totally innocent Australians use these days. We are wanting to limit that massive intrusion on the right of Australians not to be snooped on by government when they are innocent. This is not about terrorism; this is about a whole range of things—taxes, quarantine and a whole pile of other things.
Senator Boswell might be amazed to know that totally innocent Australians can have their intimate phone conversations with their loved ones tapped by a whole range of government snoops, not in the name of terrorism—it has nothing to do with that—but a whole range of other issues. The Greens are here doing the Liberals’ job of defending the rights of the Australian individual—time honoured since our democracy came into being. Many Liberal legislators of the past would be horrified to know that a conservative government which has the numbers in both houses of parliament has taken this opportunity to legislate against those rights.
The Greens limitations are very short of the mark. They should be much more complex, but we recognise the number situation in here and we are just prepared to put some things on the line. The first part of this amendment—if it were to be adopted—would ensure that:
(1) To the extent that there is any inconsistency between this Act and Australia’s obligations under international treaties, including the International Covenant on Civil and Political Rights, Australia’s obligations under those treaties prevail and override the operation of this Act.
I will be interested to hear what the Minister for Justice and Customs has to say about ensuring that Australians have the protection of an international covenant on rights that we have been trying to get China not only to adopt—as it has—but also to implement and that we are trying to get countries with dictatorships to take notice of. Australia was busy in formulating and bringing into being the International Covenant on Civil and Political Rights but, as has been pointed out by senior legal authorities in this country, this legislation cuts right through the safeguards that that covenant, which Australia has ratified, should be giving to Australian citizens who are innocent of any wrongdoing.
The second Green qualification on this act reads this way:
(2) Nothing in this Act authorises the interception of communications—
and you can read there: ‘by government snoops under the direction of people like Attorney-General Ruddock’—
(a) of a person unless the person is suspected of engaging in the planning of, or other involvement in, terrorist acts or murder;
Let us qualify this legislation by preventing people from being involved in violent crime. The minister might like to say what the limitation is if it is not terrorist acts or murder. Where does the throw of the net in this legislation stop? The amendment continues:
(2) Nothing in this Act authorises the interception of communications:
(b) where those communications contain information which is:
(i) the subject of legal professional privilege; or
(ii) derived from information that is the subject of legal professional privilege.
(c) where those communications contain information:
(i) the subject of doctor-patient confidential medical communications; or
(ii) derived from information that is the subject of doctor-patient confidential medical communications.
We ask: why should innocent people be opened up to their phones being tapped and their computers being intruded upon for personal information, particularly where they expect they are confidentially passing information to their professional legal adviser or their doctor? If the government or, for that matter, the opposition, which supports this bill, are not prepared to support this vital Greens amendment, let us hear from them as to why the confidentiality expected between innocent citizens and their doctor or their lawyer should not be respected anymore in this great democracy of ours, which this government is eroding day by day as parliament sits—short as that time might be now that the government has control of the Senate. The Greens amendment goes on to say:
(2) Nothing in this Act authorises the interception of communications:
(d) of Federal or State Members of Parliament; or
(e) of High Court judges or Federal Court judges.
I ask, through you, Temporary Chairman Watson, of the Minister for Justice and Customs how the government could possibly be contemplating, as it does in this legislation, allowing spying by government agencies on members of the High Court of Australia or judges of the Federal Court of Australia. It is dangerous territory, don’t you think, Temporary Chairman? And it is all the more remarkable because this can be done not related to any act of terrorism or violence—it might be a taxation matter. It is dangerous territory indeed because it crosses that barrier, the separation of the functions of the judiciary and those of the executive—in this case, the Howard government which, as my colleague Senator Milne has said on a number of occasions, stands before the flag, puts its wattle in its lapel and calls on the name of ANZAC but, like no government before, rips away piece by piece at the time honoured conventions and protections of the right of the individual in this country. It is extraordinary, is it not, that the Greens are standing in defence of those rights, as the Howard government strips them away?
Progress reported.
Order! It being 11.00 pm, I propose the question:
That the Senate do now adjourn.
I rise tonight to speak about why Australia is the hub for superannuation fund management applications in the Asia-Pacific region. An Australian government advertisement in Hong Kong’s The Financial Times states that, over the last two decades, Australia’s investment management industry has developed into one of the most significant and dynamic components of the Australian financial services sector. Economies of scale in the Australian investment management industry have created a cluster of local and international investment management companies with a large number establishing or expanding existing operations to service the Australian region.
Of the world’s largest 20 global international managers, as reported by Pensions and Investment Magazine, 16 have a significant presence in Australia, reinforcing Australia’s position as the funds management hub of the Asia-Pacific region. Ranked the most resilient economy in the world for the fourth year in succession, the strength of the Australian economy has been confirmed by 14 years of uninterrupted economic growth at a rate well above the global average. This backdrop in the rapid growth of Australia’s compulsory pension savings has contributed to a strong, sophisticated and innovative financial services sector. Australia offers global financial institutions opportunities in a rapidly expanding domestic market and is an ideal location for the servicing of markets in the Asia time zone. This leads me to one of the most important reasons for Australia’s success in this area: our geographic advantage.
Australia is often referred to as the gateway to Asia, and this is true. We operate in the same time zone as all of Asia, and our Stock Exchange bridges the US and European markets in a way that none of the Asian ones do. A notable expansion from the Australian shores recently has been expansion of the National Australia Bank’s wealth-management arm into China. In fact, NAB’s chief executive for Australia and Asia, Ahmed Fahour, hopes that the bank’s China operation will one day rival its $8 billion-plus UK operations. Australia is one of the most multicultural and multilingual nations in the world, giving Australian based companies ready access to Asian languages services. Australia has strong legal and accounting regimes and a tax system that increasingly recognises the importance of Australia as a financial services hub.
A further interesting observation is that Asians—and Japanese people in particular—are much better savers than most Australians tend to be. For example, the Japanese place a higher preference on protecting their household assets rather than increasing returns, but I believe this could well change over time. Australia also has excellent relations with the nations of the Asia-Pacific region. We have very strong trading relationships with China and Japan, and we are working closely with South Korea, Indonesia and India. This is especially significant when you consider that the Asian market has enormous potential for growth.
When I recently chaired a conference in Hong Kong, I was astounded at the latent promise represented by the expanding Asian middle class and the growth of the pension market. According to data gathered by Axiss Australia, Australia has the most resilient economy in the world, significantly outscoring regional competitors such as Japan, Singapore and Korea. This is due in no small part to the fiscal responsibility and the steady hand of the Howard government. Australia is the most politically stable nation in the region, which gives investors a high degree of confidence in doing business with Australian companies. Another important reason Australia is so dominant in the Asia-Pacific region is that we were the second nation in the world to privatise pension fund management after Chile. I think five others have followed suit. We have had a lot of experience in the area of privatisation of pensions. This means that the Australian private sector has the most experience in pension fund management and that our regulatory framework is the most mature and well-developed. This is recognised as a fact in Asia.
It is by using this framework and experience that Australian private sector companies are able to sell their expertise to the Asia-Pacific region, even in competitive markets such as Singapore, Hong Kong and Japan. Australians are everywhere in financial markets in these areas. The AFG Global Funds Management Index shows that Australians have more money in managed funds per capita than any other developed nations. Australians have an average of $US45,300 invested in managed funds, compared with $US37,038 in the US.
I remind the Senate that the growth in superannuation fund contributions in the next decade will have a significant impact on the make-up of the ownership of securities on the Australian Stock Exchange. The returns from equities investment in the past two years have been quite phenomenal, and now we have the All Ordinaries Index passing the phenomenal 5,000 mark. The return of commodity prices to long-term average results over the next few years will see a pressure on yields as too much money from retirement savings and other sources is put into the equities market. It will not help Australia’s development if this money goes into overseas rather than Australian equities where some markets now appear quite attractive compared with investing in local infrastructure, particularly in an environment in which overseas countries are lifting their interest rates. Employers regard contributing to employees’ superannuation as a significant cost imposition. Friends from across the water in New Zealand are not surprised that they can compete successfully with Australia because of employee taxes, such as superannuation and payroll taxes. I remind the Senate that raising the current nine per cent, as some suggest, would severely punish business, particularly small business struggling with competition from low-cost Asian countries.
While an employer contributes nine per cent of ordinary time earnings to qualifying employees through their fund, this nine per cent of the employer’s reduces to 7.6 per cent for actual investment purposes after that terrible contributions tax. Hence, I support the idea of the Minister for Finance and Administration, Senator Minchin, of eliminating the contributions tax as that would encourage savings. In financial circles there is a lot of support for abolition of this tax. Why? Because it is non-inflationary and it will go a long way towards increasing the competitiveness of the Australian market and raising retirement savings very significantly—well in excess of the $A3 billion in contributions tax currently paid to government.
Significant advances have been made of late by the Australian government, including Senator Coonan’s generous co-contribution arrangements to boost retirement savings for low-income Australians. Other advances have included removing the work test and allowing Australians under 65 years of age to contribute to superannuation, the abolition of the surcharge, providing access to superannuation for those who are working and are over the retirement age and allowing those with spouses to split contributions. In all these areas Australia is really leading the world. When you look to the UK there is not the political will to do the sorts of things that we have been prepared to do in Australia. So it is not surprising that we are leaders and that Asians and others are looking to Australia because we have the skills. In the last 10 years, I remind the Senate, the volume of superannuation savings has increased threefold, while the number of funds has fallen from 5,000 to 1,200 and, because of the new licensing arrangements, is anticipated to reduce by 1 July this year to about 420 or maybe even 410.
To conclude, Australia has one of the most dynamic and sophisticated superannuation fund management frameworks in the world and is in an excellent position to secure the Asia-Pacific market and to secure our position as a regional financial services hub. Exciting times lie ahead as Australian firms continue to expand into Asia. It is my hope that our experience and innovation will ensure that Australia will be in a strong position in the future, as we are now.
On 5 December last year I spoke on the subject of deep sea bottom trawling and the positive role that the Australian government could play in establishing a global moratorium to ban this highly destructive fishing practice—and at the risk of boring the Senate again on this subject I am going to talk about it some more. A few months earlier the Senate had noted the damage done by high sea bottom trawling and supported the establishment of a legally binding governance framework to protect deep sea biodiversity. 2006 may shape up as the year in which the world moves decisively to protect the deep oceans from industrial-scale exploitation.
There are a number of the UN and regional processes going on this year where bottom trawling has been or will be addressed. These talks are important—but while the talks continue, deep sea damage continues. As Lyn Goldsworthy of the Deep Sea Conservation Coalition states, the meetings are:
... vitally important but it’s really time for action not talk. These vulnerable ecosystems need immediate protection. That’s why we need a global moratorium on high sea bottom trawling until we get a better picture of the biodiversity impacts from scientists and to allow time for the governance arrangements to be put in place.
I am hoping the new Minister for Agriculture, Fisheries and Forestry will play a leading role in these various processes. If he does so, Australia once again will be showing that not only are we in step with international opinion but we are helping to shape it.
The need for action is highlighted by the 185 photos that Greenpeace New Zealand recently obtained under their freedom of information legislation. The 185 images show a wide diversity of deep sea life dragged up by high sea bottom trawl fishing. What the photos show includes bizarre crabs, strange octopuses, ancient Gorgonian corals and CITES listed endangered black coral. The images were taken by fisheries observers on board New Zealand bottom trawlers. The photos highlight yet again the highly destructive impacts of bottom trawling on the undiscovered world of our deep oceans. But the damage seen in these photos is still only the tip of the iceberg—and I apologise for the bad pun! Greenpeace oceans campaigners said that, although 185 photos sounds like a lot, the sample is small because fewer than five per cent of New Zealand flagged deep sea bottom trawlers have observers on board and not all the observers take photos.
Perhaps because the link between ecological and economic sustainability is so stark in this instance, world governments are listening to scientific opinion and using the United Nations to proceed, however slowly, towards a solution. Bottom trawling destroys marine ecosystems as effectively as clear-felling destroys terrestrial ecosystems. Spawning grounds and habitats are removed as though the sea floor had been bulldozed—and, with it, any possibility for the ecosystems to recover. As the sea floor is destroyed, so are the livelihoods of tomorrow’s fishing communities.
Since the middle of last year, events have moved forward considerably. The United States has designated its largest marine protected area in the North Pacific which prevents deep sea trawling across a quarter of a million square nautical miles. Legislation is before congress to ban bottom trawling along 82 per cent of the Pacific coast. The European Union has at last begun to shift its support behind a high seas moratorium, led by France, Belgium, the Netherlands, Sweden, Germany and the UK. Canada is now holding its first national scientific review of the issue. The Pacific Islands Forum issued a strong statement in October 2005 in support of Palau’s motion for a moratorium. African states—including Tunisia—South Asian nations, Brazil, Chile, and our near neighbour PNG are all lining up behind the moratorium.
New Zealand has stated it would support a high seas moratorium if other fishing nations did the same. I believe this is a signal for the Australian government to show its hand and go firmly on the record as supporting a moratorium. I point to the recent launch of the High Seas Task Force final report, a project for which the Australian government can claim some credit and which our own fisheries minister had a hand in completing. It is a welcome step towards the desperately needed crackdown on illegal, unreported and unregulated fishing on the high seas. High seas illegal fishing inevitably has impacts within the exclusive economic zones of all countries including Australia. In part, the report reads:
IUU fishing respects neither national boundaries nor international attempts to manage high seas resources. It thrives where weak governance arrangements prevail and is further encouraged by the failure of countries to meet their international responsibilities. It puts unsustainable pressure on fish stocks, marine wildlife and habitats, subverts labour standards and distorts markets.
I put it to you that this could have been written about deep sea bottom trawling, for the same weak governance arrangements prevail and unforgivable damage is being done to the marine environment and the societies that depend on it. This report gives weight to the arguments that the challenges of enforcing a moratorium should never be used as an excuse for inaction.
Interestingly, measures suggested in the report to tackle IUU fishing are similar to those needed to enforce a moratorium on high seas bottom trawling. A moratorium on high seas bottom trawling can and should be in force before the end of 2006, whereupon the burden will shift from regulation to enforcement at least until such time as more scientific work can be done on whether this practice can ever be sustainable. Progress has thus far been positive but painfully slow, and many opportunities to clamp down on this practice have already been missed. I believe it would be a fitting achievement for our new Minister for Agriculture, Fisheries and Forestry, working with his counterpart in the environment portfolio, to do something tangible about this practice and have Australia again take the lead to bring about a result of which we can all be proud. I am hoping that in November 2006 the United Nations General Assembly, with Australian support, will agree to a global moratorium on high seas bottom trawling, and I urge the Australian government to get on with helping to introduce such a moratorium.
Understandably, there has been a lot of comment this week about the speech given to the House of Representatives by the Prime Minister of Great Britain, Mr Tony Blair, and I want to reflect on a couple of aspects of his speech. One was his references to the need for action on climate change and global warming, an area where quite pointedly Australia has been amongst the worst performers in the world both in our per capita emissions and, probably more unforgivably, in our lack of political will at the national federal government level to address this issue both locally and globally. The evidence is stacking up day after day that this threat to our planet is as severe as people have feared, and perhaps even more imminent than people had suggested. It is one of the clear examples where clear, long-term vision and leadership is needed at a political level as well as throughout the wider community in other areas of endeavour that have significant influence, such as business and industry, the media and other sectors of our society.
There is very little doubt that this is a very severe environmental threat to our planet, but it is of course also a very strong economic threat to our planet. There are more and more studies being produced that suggest that the costs of trying to address the impacts of climate change will be much greater than any short-term costs that may occur in implementing some of the measures that need to occur to reduce greenhouse emissions. Our failure to act in the face of such overwhelming evidence is unacceptable and, from the point of view of future generations, may well be unforgivable.
Given Mr Blair’s address, it is worth noting that, despite his actions and rhetoric in this area being a long way ahead of the federal government, according to a report in the UK paper the Independent, four senior UK government ministers will finally acknowledge that, despite the UK Labour government’s targets of significant reductions in greenhouse emissions, they have actually had an overall increase in emissions in the last decade. This shows that even where there is clear intent and desire to reduce emissions many countries are falling short. It shows, again, how much further behind the pack Australia is and how much more unforgivable it is that we are failing to act in meaningful and substantial ways. I note also that at the same time, according to the Independent, an all-party parliamentary climate change group is setting up proposals and taking submissions about the possibility of developing a nonpartisan and much more comprehensive approach to climate change issues. The real problem, of course, in expecting the political system in many countries to act to address climate change is that it can leave one governing party or potential governing party open to political attack from its opponents.
We are seeing that here in Australia, where the current government is trying to position itself as being in favour of economic prosperity and business, and attacking the Labor Party—let alone parties like the Democrats that have been talking about the need to act on greenhouse issues for over a decade—for being willing to risk economic prosperity and employment in Australia for these environmental outcomes. It is clear now that there is always a risk that the lure of short-term political gain and winning or hanging onto government will win out over the much more important long-term goal of preventing environmental and human disasters from occurring down the track. That is what we must do, and we need to look at ways to remove climate change from an area of partisan short-term political advantage and move it towards an area where there is an across-the-spectrum recognition of the need for comprehensive action.
One of the proposals being put forward looks at stabilising atmospheric carbon emissions through measures such as carbon rationing, and the Global Commons Institute has developed a policy known as Contraction and Convergence. It seeks to do this, in effect, by each individual getting a carbon allowance each year. The same could be applied to industries, companies or countries. That would set in place a market mechanism that would very quickly act to stabilise global emissions. The real problem is that the actions that are being taken are not going far enough and they are not going fast enough. As the evidence mounts up, the imperative to act is becoming more and more immediate.
I also noted the comments made by Mr Blair with regard to global poverty and global trade with less developed countries. When he was talking about the need for Europe to open up its markets to Australian produce and to join Australia in more open trade there was a loud rousing chorus of ‘hear, hear!’ from the government benches and others. When Mr Blair mentioned getting Japan to open up their markets to trade there was more ‘hear, hear!’ Similarly, when he talked about the USA opening up their markets there were rousing sounds of approval. When he then spoke about allowing African countries and poorer countries to be able to trade without impediments with countries like ours and other richer countries there was dead silence. When he spoke about ensuring there was more prospect for economic opportunity in African countries and poorer countries there was dead silence.
That is a sad indictment of all of us. I am not seeking to take a cheap shot; I am just seeking to emphasise how different issues dominate the political mindset in Australia at the moment. Trade is seen as an opportunity for enrichment for Australia. That is all well and good; we all support more prosperity for Australia, although I would link it to my previous comments about the need to generate prosperity without generating further environmentally damaging outputs such as carbon emissions. It is time to acknowledge once again that in the same way we cannot expect our planet to survive as we know it today without acting to reduce greenhouse emissions, we also cannot expect our planet to survive as we know it today if the enormous, almost incomprehensible, gap between life opportunities, between the well off and the non-well off, between the wealthy and the totally impoverished is not reduced.
Millennium development goals have been accepted at the United Nations level. Australia has played a part in that but Australia is not playing an adequate part in meeting some of the most basic aspects of those goals, such as increasing our overseas development assistance. I should emphasise that it is not just a matter of increasing the amount you spend so you can feel good about yourself; it is important that overseas development assistance be spent effectively. We can certainly improve our action there. One of the most extraordinary and little remarked aspects of the AWB scandal is the fact that a large amount of Mr Flugge’s wage when he went to Iraq to ensure our wheat markets were maintained came out of our overseas aid budget—a quite extraordinary use of aid money.
Having said that, we should not only fix up how our aid money is spent but also significantly increase the amount that we provide. We are well short of the globally accepted target of 0.7 per cent of gross national income. Whilst other countries are also short of that, many of them have set targets and a process to get to those targets. Australia is still languishing below 0.3 per cent. That must be addressed. A timetable must be set for getting our overseas development assistance up towards 0.7 per cent. (Time expired)
I spoke a number of times in this place about the Centenary of Women’s Suffrage in Queensland in 2005. Amongst many projects that were celebrated during our year of commemoration last year was one that was put together by a couple of women who looked at the issue of women’s history. I want to pay tribute this evening to Dr Jullian Clare from the QUT, my friend Beverley Perel, who was a founding member of UNIFEM in Australia, and Ms Scotia Monkivitch, a choreographer and artiste in the Queensland area, who thought that during 2005 we needed to encourage women and their families across Queensland to be part of a project they called the ‘Women’s history shoe box collection’.
The concept of this project was: celebrating, researching and recording. The idea was that by talking with women across the state—personally where possible, by website, by phone—throughout the year, we would encourage them to take time during the year of the centenary to think about the things that were important to them and their families, to look at their own history, to go back and to commemorate what was important to them and their families about the issue of the vote, about the issues of being part of a democracy and about what they were doing now and also what their mothers and their grandmothers were doing then.
The women were encouraged to go back to the time of the 1905 decision and then the first vote in 1907 to see whether they could trace back and celebrate the achievement of the vote, research their own histories and then record them. One of the real issues that we consistently find in our community is that our history is not being effectively recorded. The Queensland Women’s History Project was part of making a statement in Queensland that wonderful and exciting things have happened for women and we should know about them.
What this group did was seek funding, which is always really important, and then work with an increasing group of people to try to get this message out there. They called upon students at the QUT to work with them, to develop websites and to work with student communities to document through film some of the achievements of the process to ensure women were part of our year. Guidelines were developed for the kinds of things that could be involved in the project. People were looking at what is important in our lives. When people took the time to stop and think about the issues, they could look back through their own lives and find things that were important to them.
I want to talk a little about my own experience in this process because, whilst I am totally committed to the project, it took me a bit of time to actually sit down and create my own shoe box. But I did, and it was a fascinating experience because it gave me the chance to look in my own cupboards, to think back about the things that my mum and my grandmother—whom I did not know—did, to trace my family history, to see how long my own family had been involved in community politics on the Darling Downs and where they were at the time the decisions were being made about suffrage, and then to somehow put all that information about my own family in one small box.
This caused a lot of consternation among the people in my office and also with my two sisters, because we got into the process—which was one of the exciting aspects—of celebrating, researching and talking to each other about the kinds of things that we would put into the box. We got the normal documentation. We found records—such things as birth certificates and school reports, which caused a bit of interest in terms of who actually did get the higher marks at different times. We also found out about different statements that were made in the family regarding celebrations that occurred. We found old cards that had been circulated in the family on the occasions of birthdays and marriages, and we were able to put them in the boxes. That brought back memories of the family members who have passed now. Through this process we were able to relive experiences. We found things like candles that were used at special celebrations, graduation certificates and photographs from school. This led to people talking and catching up with old school friends. So the process and the project had a life of its own—and it grew, because as we did this we gathered more people into our celebration and our research.
The project ended on 17 March, when we were able to gather together as a group and look at what had been achieved. It really was a chance to thank the project coordinators and to share the experience. I am hoping that through the film that was made about this whole exercise we will be able to continue growing the research and the celebration. We were able to gather at the QUT campus, which is an historic site itself, and talk with other people who had created their own shoe boxes—boxes of memories about them and their families. In one particular case, we had three generations of one family—women who had got together and put in their memories and the collections that they thought reflected the experiences that they had had. They were personal, but they were also a record of ordinary people and the history of Queensland.
I think this particular project has such relevance and importance for all of us as we move forward into the next centenary of democracy in Queensland. I was able to share some of these experiences with school groups. Recently I returned to the Lockyer Valley to what has become an annual event on the Lockyer Valley school calendar—an International Women’s Day celebration. That has now been going for a number of years, and I have been fortunate enough to attend three of them to watch the enjoyment and the growing awareness of the young people in this area about why democracy, the issue of achievement and their own family histories in the area are important.
This year, when I spoke with the large group of kids who had gathered together to celebrate International Women’s Day about the fact that we had moved through 2005 and now we were moving into the next centenary of voting in Queensland, I asked how many of them had been at the previous function. A number of hands went up. Then I asked them whether they had done what I had requested the year before, which was to go back and talk with their families in this wonderfully historic part of Queensland and to try and trace their own families, what the families of the Lockyer Valley were doing in 1905 when this monumental decision to extend the vote to women in the colony was made in the Queensland parliament and where the women went to vote for the first time in 1907. The exciting thing was that several of the girls and boys in that group had done exactly that. Through my experiences at that school, I was actually living the celebrating and researching aspects of the women’s shoe box project and was able to keep this project alive on behalf of Dr Clare and Ms Perel.
Where are all those shoe boxes going to go now in terms of the collections of personal histories and this statement of what was happening in Queensland in 2005? They are now going to be dedicated and given to the State Library and put away for a certain period of time. Some of the fun that we had on 17 March was to imagine what will happen in 50 years or 100 years, when the women of that generation will be able, I hope, to open these boxes and see what all of us thought was important in our time. That encapsulates why it is so important that we do document and record our history, because only by doing that are we able to see the value, the excitement and the wealth of Queenslanders and their lives. Only by doing projects such as the Women’s History Project—in particular, this shoe box project, which gives people the chance to look at their own lives—can we encourage the people of 2005-06 to be involved and to plan for the future. Looking back at the last 100 years of the vote, I think that we have great strength and we can do even better in the next 100 years.
For those of us who are used to doing the late night shift when some of us speak, it will come as no surprise that yet again I rise to speak about the issue of mental health. I rise to speak about three different aspects of it, although I plan to make a brief contribution. The first issue I will raise is about the stigma that we still apply to the issues of mental health. That was really brought home to me today when I saw the front page of the newspaper from my hometown, the West Australian. My good friend Geoff Gallop was here in Canberra recently to see his best friend, Tony Blair, and the headline with a picture of Geoff seeing Tony was ‘Gallop out of exile’. We all know that he made a very public announcement of his retirement from public life due to an illness that confronts all of us. But when the only major daily newspaper in Western Australia sees the retirement from public life due to illness as an exile, it tells you that we have a very long way to go in beating the stigma attached to these things. In fact I think there is a significant role for the media to play in helping those of us in public life to combat that stigma.
The second issue I wish to raise is that in April this year another West Australian, who has made a significant contribution to not just combating the stigma of mental health but campaigning for the rights of those who suffer from that illness, Keith Wilson, will end his tenure as chair of the Mental Health Council of Australia. He commenced that role in November 2002 having previously been an advocate—as he still is—on behalf of not just consumers and carers but also service providers in Western Australia. He is still actively involved with the WA mental health council. As we will not be meeting in this place in April I thought it appropriate to place on the record my regard for Keith’s hard work, his tenacity and his commitment to that advocacy role, the way he along with other people who have played a prominent role in public life have used the profile that they have to try to advocate for and further the cause of those suffering from mental illness.
Keith has made a unique contribution as someone who was not only a minister for health, and therefore has experience at that hard decision-making end of service delivery, but also the carer of an adult son with mental illness. I know he has made a significant contribution as chair of the Mental Health Council of Australia and that he will be missed by that organisation. I also know that organisation is incredibly robust and will continue on its way. I want to place on record my congratulations to Keith for the hard work that he has done in his time with the Mental Health Council.
The final issue I want to raise briefly is an issue that I have raised in this place on a number of occasions. It is the issue of the establishment of Hawthorn House in the suburb of Mount Hawthorn in Perth as a step-down facility. As those who have followed this tortuous debate would be aware, Hawthorn House will be established in the old Hawthorn community hospital as a step-down facility, as I said, for those who have suffered from long-term depression and who need that intermediate care after intensive treatment and before they return to life on their own or with their families and supporters. So it was proposed that an existing health facility would be used.
Unfortunately the community campaign that built up against the establishment of Hawthorn House was another example of the stigma attached to and the lack of understanding of the 20 per cent of the population who suffer from mental illness. It was thanks to the tenacity of the Western Australian health minister Jim McGinty—who even his harshest critics would have to admit is a fairly tenacious fighter—who committed to seeing through the long-standing commitment of governments from all sides to these facilities being based appropriately in our community. This was against the wishes of the majority of the councillors in the town of Vincent.
Mr McGinty announced with much fanfare in December, after the council had been considering the matter since April last year, that if they did not hurry up and make a decision he would take the decision out of their hands to the Western Australian Planning Commission. That application was duly lodged, although I must say it also sparked the town of Vincent into some kind of action. They decided—probably still against the wishes of those on the council, but with politically better judgment—that they would in the long run support the process. So the WA Planning Commission has finally announced that the establishment of Hawthorn House can go ahead—something that should have been a straightforward decision and something that political parties on both sides and governments of all persuasions have supported since 1992.
It seems to me that if we are to be serious about basing these facilities in our community we need to come up with a process that means that people with a mental illness are not held hostage, such as happened with the five councillors from the town of Vincent. We need to come up with a better way of making those decisions. It was in a discussion with Keith Wilson that we explored the idea that perhaps there is a leadership role for the Western Australian Local Government Association to take on whereby they can work with our state government in Western Australia to come up with a model for consultation that will streamline this process and allow for proper community consultation for the development of these community based facilities without 12 months of stigma, sledging and neglect as occurred with those five individual councillors.
Around 19 per cent of males in the Northern Territory between the ages of four and 40 either play or participate in some way in Aussie Rules. My understanding is that that is the highest participation rate percentage of all states and territories. Nothing excites Territorians quite like Australian Rules football. It is not just a game in the north of Australia; for some it is a way of life—a great form of entertainment and a passion. For those who play it, coach it or manage it, it is a terrific form of exercise and a source of much dedication and love.
Last Saturday, on 25 March, I was very proud to be amongst the ecstatic crowd of more than 5½ thousand people watching the Northern Territory Football League’s grand final. This was played at the oval now to be known as the TIO stadium, thanks to the generosity of the corporate donation provided by TIO, the Territory Insurance Office. I just want to mention on the public record my thanks to TIO for their investment in footy in the Northern Territory—a 10-year sponsorship deal worth $1 million; $100,000 a year with five years up front. No doubt this money will go to an upgrade of the oval and its facility.
I want to take this opportunity to congratulate the Darwin Football Club, the Buffaloes, who won their first grand final since 1989 when they booted nine of the last 10 goals of the match and won by 42 points. Since arriving in Darwin in 1985, my family and I have been supporters of the Buffs, and although I offer condolences to the Saints—that is, St Mary’s—and their supporters, who put up a magnificent fight, Buffs and Saints have been old rivals, so I cannot say I am sorry they lost.
I want to acknowledge Darryl White, who was awarded the Chaney medal on Saturday; the captain of Buffaloes, David Parfitt; the coach, Ian Smith, who, if my memory serves me correctly, also coached the team when they won their last grand final, in 1989; and players like Joey Anderson, Timmy Roe, Corey Kurnoth, Ben Ah Matt and Matthew Hooker. I also want to recognise the efforts of the president, the committee, the trainers, the runners, the volunteers and the supporters. I know only too well the hard work and dedication that those people have put into this team over many years—from raising money and recruiting membership right down to providing the banner that the players ran through last Saturday. Their work and dedication often goes unnoticed, but I want to make sure it is noticed in this speech tonight. My special congratulations also have to be given to the amazingly talented Indigenous players who play Aussie rules and who played in the grand final—particularly Ephrem Tipungwuti from the Tiwi islands, who managed to score four goals in the grand final, which was a pretty mighty effort.
On Sunday I was also fortunate to get across to Bathurst Island, to the Tiwi islands AFL grand final. I had a weekend of Aussie rules, you could say. The grand final was played between Mulluwurri and Pumaralli at the Stanley Tipiloura oval. I watched what was, despite the rain and the mud, one of the most incredible games of AFL, from two of the most fiery and passionate teams. It sent the spectators into pandemonium, with streamers in team colours, frenzied shouting from the sidelines and a great day of football fun.
I want to acknowledge the people of Bathurst Island and Melville Island for being so passionate about their football and recognise the efforts of the coach, Gavan Tipiloura, in getting Pumaralli to win the flag last Saturday. Anyone who has ever attended a Tiwi islands grand final or ever watched a game of Aussie rules played by Indigenous people in the Northern Territory will already know how passionate communities are about footy and how important playing footy is for young kids. The Tiwi islands grand final is one of the most successful sporting events on the Northern Territory sporting calendar.
This leads me to talk about what I really want to mention, and that is the AFL program known as Kickstart. Anyone who has ever been to an Indigenous community anywhere in Australia would be aware of the serious problem of Indigenous truancy, getting Indigenous kids and families to see the value of education and how important it is that we work to encourage kids in communities to go to school and, more importantly, stay at school. Just take a glance at the figures in the last national report to parliament on Indigenous education and training and see the huge difference between Indigenous truancy levels and non-Indigenous truancy levels in both primary and secondary schools.
Strategies have been formulated to deal with this crisis in Indigenous education, and one of the many different strategies that have been developed to combat Indigenous truancy has been the hugely successful AFL Kickstart program. It commenced in 1997 in the Northern Territory, the Kimberley region and North Queensland. The program provides opportunities for kids to play the game and to focus on the lifetime value of education and attendance at school, and it provides forums on health and social issues.
The cornerstone of the program is school attendance and participation. This is paramount to the success of the outcomes and the benefits of the Kickstart program. It is really simple. It is a behaviour management program. The message is delivered by changing the way kids behave. If you turn up to school, you get a sticker. If you get five stickers, you might get to go to the disco. If you get 50 stickers, you might get a poster. After 100 stickers, you might get that all-important elusive football in your hand and then probably a jumper and a backpack. It is based on providing goods to kids with an AFL theme, provided their participation in the program is matched by attendance and participation at school. It is promoted by high-profile Indigenous AFL heroes like Michael Long, Andrew McLeod and Darryl White.
In 2000, research conducted by the Curtin Indigenous Research Centre discovered that the AFL Kickstart program actually increased self-esteem and confidence, community cohesion and sense of purpose, individual wellbeing and awareness of healthy lifestyle issues and, of course, school attendance and academic achievement. I have seen it with my own eyes at Galiwinku on Elcho Island, where, once the Kickstart program was introduced into that community, the school attendance almost doubled, to the point where the school was bursting at the seams, needing new classrooms, refurbishment, extra teachers and houses for those teachers. So it works. I have seen this program actually deliver outcomes. The research also proved that not only did the program increase positive aspects in the community; it decreased community level vandalism, alcohol and substance abuse and antisocial behaviour.
You may be aware that in many communities throughout the Northern Territory young people have limited access to sporting and recreational facilities, due to the sheer remoteness of their community as well as a lack of personnel with the skills and confidence to deliver such programs. But all around the Territory, from Yuendumu in the Western Desert of Central Australia, to Yirrkala in Arnhem Land—my old home—and to communities in the Barkly region and on the Tiwi islands, Indigenous boys and girls are being exposed to regular healthy lifestyle opportunities through the AFL Kickstart program. This is not just about footy. This is also a vehicle that is bringing Indigenous kids in remote areas back to school. It provides an opportunity to pass on healthy lifestyle messages to a captive audience—important messages about self-esteem, nutrition, substance abuse and family wellbeing.
The AFLNT has four development managers in regional locations to implement this program. The AFLNT is able to reach over 20 remote communities annually, providing more than 100 visits each year. Since 2002 they have provided clinics in remote areas for over 12,000 children, with 2,500 regularly participating in the AFL. Gone are the days of waving the flag with one-off visits which served little purpose. The AFLNT is serious about providing the necessary support and training for local people, particularly Indigenous youth, so that each community becomes self-sustainable in the long term.
This is a program about partnership—a major sporting body and Indigenous communities walking side by side with government bodies and business. None of this activity would be possible without the tremendous backing of our corporate and government partners, and I want to take this opportunity to acknowledge the energy and commitment of one of the major corporate supporters, Thiess. Thiess is one of Australia’s leading engineering and service providers and is currently involved in working on Northern Territory projects such as the Darwin LNG tank and the Darwin LNG marine.
Since 2004 they have been the major corporate partner of the AFL Kickstart program. Importantly, Thiess are committed to making a positive difference in the communities in which they operate. In addition to their ongoing support of 32 AFL junior teams in the Top End, 2006 will see Thiess become actively involved in AFL Kickstart healthy lifestyle carnivals in regional centres. I felt quite privileged when Mr Phil Kesby from Thiess’s head office in Queensland took up the invitation to travel with us on Sunday to Bathurst Island and witness and be part of the Tiwi Islands grand final because I think he was able to see first-hand exactly where the company’s money is going and to see the enormous benefit it is in those communities.
As I said, the game or the program would not survive without partnerships. Since 2002, when the program first started, over 10,000 Indigenous boys and girls have participated in AFL school clinics in the Northern Territory. Over 5,000 Indigenous boys and girls have been involved in structured programs in remote areas, and over 700 Indigenous youth and adults have been trained as footy coaches, umpires and administrators. This means that a whole swag of kids, who might not have normally been excited or even interested about going to school, have had a real incentive to turn up so that they can go to these school clinics or programs in their communities. But also there are now 700 Indigenous young people and adults that have the training to be able to develop the sport.
The Kickstart program was, at its inception, a program developed through a partnership of ATSIC, the Northern Territory government and the Australian Football League. But, of course, here is the sting in the tail. Unfortunately, for the last two years the federal government has slowly walked away from this highly successful program. In 2002-03 the federal government through ATSIC provided $200,000 for the funding of the Kickstart program. The same amount of money was again provided in 2003-04. If you examine the previous funding that was received by the AFLNT, it was obvious that under ATSIC there was a greater contribution to the program. This has declined in the last two years and, of course, has not been funded at all this year until I made representations to Senator Kemp some weeks ago.
Let us have a look at what has happened: in 2002-03 and 2003-04, $200,000 from ATSIC; in 2004-05, $100,000 from DCITA; and in 2005-06 the submission was actually declined until representation was made directly to the minister and he was able to find $75,000—but that is a story I will come to in a minute.
So why has this happened? Where is the confusion or the problem with funding such a highly successful program that is not only giving kids footy skills and increased self-esteem but actually getting them to school? The AFL centrally--—that is, its base in Melbourne nationally—did not receive any funding for the 2004-05 financial year. However, it will receive $200,000 from DCITA for the 2005-06 financial year. But in the Northern Territory the original grant for 2005-06 was not approved because it was thought, incorrectly, that the ALFNT submission was a duplication of the money that was being sought at the national level. This is an example of where DCITA has clearly not looked at the fine print and has clearly not sought to investigate exactly what the difference in the programs was between the national level and the local level.
A decision, I understand, was taken by DCITA in Darwin to actually support the AFLNT submission but in fact was overturned by DCITA in Canberra, on advice from who knows where. We will seek to find that out. They decided that the Northern Territory AFL should miss out. But the two submissions are significantly different and if anyone in DCITA had actually looked at the fine print and bothered to do some investigation they would have discovered that. They are significantly different because the AFL nationally seeks funds to develop the project and support the four projects that were detailed in their budget provided to DCITA. They write the curriculum and they provide the incentives that are given out to kids. They coordinate the national objectives and the strategies. What happens then is the local branches, like the AFLNT, put that in place by employing Indigenous development officers like the four I mentioned that are placed in regions around the Northern Territory.
Participation, coaching, umpiring, community development, talent and Indigenous programs are all managed centrally, including the policy, procedures and resources development. The funding that the AFLNT has received in the past, and would have continued to receive this year, has been utilised to help with the program’s delivery at the community level. It costs an awful lot of money to get out to places like Galiwinku if you are going to do it on a regular basis besides the other many dozens of communities the AFLNT reaches. And the AFLNT money is additional to the money that the AFL provides the Northern Territory AFL through its state development grants.
So where has this process gone so wrong that the AFLNT now only manages to scrape $75,000 from this government rather than the $200,000 that it originally sought? Senator Kemp, in a letter to me on 27 January, said:
The process of re-assessing unallocated funds under the Indigenous Sport and Recreation Program ... for 2005-06 was completed in mid-December ...
Wednesday, 29 March 2006
Why were there unallocated funds in the Indigenous Sport and Recreation Program at all for 2005-06? If you actually go to the four elements of the ISRP, this government now wants to see a bureaucratic document in the form of a shared responsibility agreement or a partnership agreement as the key concept underlying the Australian government’s new approach to funding programs. Is there in fact now a hold-up in getting footballs out to kids in communities because people have not signed on the dotted line? Why are we now facing such a bureaucratic nightmare when it comes to simply handing out money for programs for Indigenous kids in sport that have been known to be hugely and highly successful?
If this is about the government’s new era of funding Indigenous people in this country, in which I thought silos were to be broken down and Indigenous coordination centres were actually to pull together and diminish and abolish this bureaucratic red tape, then this is a system that is chronically failing. Why won’t the federal government not only get on board with this program and champion its success but also be the cornerstone to it? I fail to understand not only why there are diminishing funds being given to the AFL NT but also where the $125,000 is that they did not get this financial year. Who has got it and on what basis has that group or organisation or community got it? I want to be convinced when it comes to estimates time—and that DCITA can prove it to me—that whoever has that $125,000 has even more successful outcomes than the AFL Kickstart program. I seriously doubt that DCITA are going to be able to prove that to me.
I am not going to let up on this, because I fail to understand how a federal government that stands on a platform of pretending to improve the lifestyle and outcomes for Indigenous people and kids in communities can walk away very slowly from this highly successful Kickstart program. There are many questions unanswered here. Why does it get ticked off in Darwin? Who overturns it in Canberra? Where has the $125,000 gone that the AFLNT did not get? How do you expect to increase Indigenous kids’ participation at school in communities when you pull the rug from under their feet by not committing to funding a highly successful and motivating program like Kickstart? It is the core and centre of Indigenous communities. It is the one love Indigenous kids have out there. I cannot for the life of me understand why this government does not fund it $200,000 and also either double or treble that money in the coming year, get on board with this successful program and get on board with actually trying to prove to this country—(Time expired)
The following government documents were tabled:
Australian Competition and Consumer Commission—Telecommunications reports for 2004-05—Telstra’s compliance with price control arrangements.
Australian Meat and Live-stock Industry Act 1997Live-stock mortalities for exports by sea—Report for the period 1 July to 31 December 2005.
Department of Agriculture, Fisheries and Forestry—Reports—
2003-04—Corrigendum.
2004-05—Corrigendum.
Indigenous Business Australia—Corporate plan 2006-2008.
Medical Indemnity Act 2002Costs of the Australian Government’s run-off cover scheme for medical indemnity insurers—Report for 2004-05.
Migration Act 1958Section 91Y—Protection visa processing taking more than 90 days—Report for the period 1 July to 31 October 2005.
National Occupational Health and Safety Commission—Report for the period 1 July to 31 December 2005. [Final report]
Queensland Fisheries Joint Authority—Report for 2003-04.
Superannuation (Government Co-contribution for Low Income Earners) Act 2003Quarterly report on the Government co-contribution scheme for the period 1 October to 31 December 2005.
Surveillance Devices Act 2004Report for the period 15 December 2004 to 30 June 2005 on the operation of the Act.
Treaties—
BilateralText, together with national interest analysis and annexures—
Agreement between the Government of Australia and the Government of New Zealand in relation to mutual recognition of securities offerings (Melbourne, 22 February 2006).
Agreement between the Government of Australia and the Government of the Republic of Indonesia for Cooperation in Scientific Research and Technological Development, done at Jakarta on 11 July 2005.
Exchange of Letters constituting an Agreement between the Government of Australia and the Government of New Zealand to Amend Article 3 of the Australia New Zealand Closer Economic Relations Trade Agreement (ANZCERTA) of 28 March 1983.
MultilateralText, together with national interest analysis and annexures—
Agreement Establishing the Pacific Islands Forum, done at Port Moresby on 27 October 2005.
Agreement for Establishment of the Global Crop Diversity Trust, done at Rome on 1 April 2004.
Amendments to Annexes VIII and IX of the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1992 (Geneva, 29 October 2004).
International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.
Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, done at London on 16 May 2003.
The following documents were tabled by the Clerk:
[Legislative instruments are identified by a Federal Register of Legislative Instruments (FRLI) number]
Appropriation Act (No. 1) 2005-2006Advance to the Finance Minister—Determination No. 6 of 2005-2006 [F2006L00916]*.
Australian Bureau of Statistics Act—Proposals Nos—
2 of 2006—Adult Literacy and Lifeskills Survey.
3 of 2006—Topic to be Included as a Supplement to the Monthly Population Survey: Child Employment.
Census and Statistics Act—Statement No. 1 of 2006—Lists of Agricultural Farm Businesses for the Australian Bureau of Agricultural and Resource Economics.
Customs Act—Tariff Concession Orders—
0512930 [F2006L00899]*.
0513592 [F2006L00900]*.
0601594 [F2006L00901]*.
0601595 [F2006L00902]*.
0601615 [F2006L00904]*.
0601824 [F2006L00906]*.
Defence Act—Determination under section 58H—Defence Force Remuneration Tribunal Determination No. 1 of 2006—ADF Workplace Remuneration Arrangement 2004-2006; and ADF Star Ranks’ Remuneration Arrangement 2004-2006.
Financial Management and Accountability Act—Net Appropriation Agreements for—
National Water Commission [F2006L00927]*.
Office of the Commonwealth Ombudsman [F2006L00928]*.
Fisheries Administration Act—Direction under section 91, dated 16 December 2005.
National Health Act—Determination HIB 13/2006 [F2006L00898]*.
* Explanatory statement tabled with legislative instrument.
The following document was tabled pursuant to the order of the Senate of 20 June 2001, as amended:
Departmental and agency contracts for 2005—Letter of advice—Attorney-General’s portfolio agencies.