The PRESIDENT (Senator the Hon. Scott Ryan) took the chair at 10:00, read prayers and made an acknowledgement of country.
That the following general business orders of the day be considered today at the time for private senators' bills:
No. 42—Public Governance, Performance and Accountability Amendment (Waiver of Debt and Act of Grace Payments) Bill 2019 and
No. 65—Migration Amendment (New Maritime Crew Visas) Bill 2020.
Public Governance, Performance and Accountability Amendment (Waiver of Debt and Act of Grace Payments) Bill 2019
The bill would require the Department of Finance to state in its annual report the number of waivers of debt granted and act of grace payments made, and the total dollar amount of debt waived and act of grace payments made. There would be no personal information reported, given all that is sought is the publication of global figures.
In keeping with obligations under the Privacy Act 1988 and Finance's Privacy Policy—
Finance is unable to comment on specific waiver of debt applications to protect the personal information of applicants.
The award of funding reflected the approach documented by the Minister's Office of focusing on 'marginal' electorates held by the Coalition as well as those electorates held by other parties or independent members that were to be 'targeted' by the Coalition at the 2019 Election.
In some cases, the evidence shows the local member or duty senator was actually engaging with the (Prime Minister's office), who would then pass it onto the Minister's office.
The mere use of the name 'national cabinet' does not, of itself, have the effect of making a group of persons using the name a 'committee of the cabinet'. Nor does the mere labelling of a committee as a 'cabinet committee' have that effect.
The Senate divided. [11:42]
(The Acting Deputy President—Senator Chandler)
That this bill be now read a third time.
The Senate divided. [11:49]
(The Acting Deputy President—Senator Chandler)
Migration Amendment (New Maritime Crew Visas) Bill 2020
Data suggests seafarer's welfare continues to be compromised with serious breaches of the MLC found on board vessels. In 2020, there was a 46% increase in MLC deficiencies issued during port state control inspections from the previous year.
Due to the COVID-19 pandemic, 2020 has been particularly challenging with the number of complaints relating to repatriation showing a substantial increase compared to previous years. While from early 2021 there has been a reduction in the number of seafarers serving on board vessels for more than 11 months, we will continue to monitor this situation and enforce the maximum continuous service on board limits in accordance with the convention.
They're suffering extreme mental health [issues] and really difficult conditions for them to be in for 15 and 16 months at a time now.
Treasury Laws Amendment (COVID-19 Economic Response No. 2) Bill 2021
That the committee does not insist on its amendment, to which the House of Representatives has disagreed.
The committee divided. [13:13]
(The Temporary Chair—Senator McGrath)
Treasury Laws Amendment (2021 Measures No. 1) Bill 2021
Entities and officers will face reduced regulatory costs in complying with the continuous disclosure regime. This will be because they do not face the same level of financial risk where they allegedly fail to comply with the continuous disclosure rules, unless they do so with 'knowledge, recklessness or negligence'. This will reduce the amount of time entities and officers must spend on assurance that they have complied, as well as the legal fees associated with assuring compliance.
… a fundamental tenet of our markets and is particularly important during times of market uncertainty and volatility.
Industry's expectation is that on its own the proposed legislative change will:
At the end of the motion, add ", but the Senate:
(a) notes that the Government's measures in Schedule 2 of the bill would strip shareholders of their rights to be adequately informed, damage Australia's corporate governance regime, and allow company directors to get away with failing to disclose important information; and
(b) further notes these measures could damage Australian investment and hurt Australian investors and retirees".
Public transport isn't just about the train line or bus route itself. It's also about the surrounding infrastructure that makes it work for local residents.
The companies in question were not overpaid; they were eligible under the rules of the program as they operated at the time.
That the Senate take note of the answers given by the Minister for Finance (Senator Birmingham) and the Minister for Senior Australians and Aged Care Services (Senator Colbeck) to questions without notice asked by the Leader of the Opposition in the Senate (Senator Wong) and Senators Chisholm, O'Neill and Gallagher today relating to the COVID-19 pandemic and to Mr Brian Houston.
That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021, allowing to it be considered during this period of sittings.
COUNTER-TERRORISM LEGISLATION AMENDMENT (SUNSETTING REVIEW AND OTHER MEASURES) BILL 2021
Purpose of the Bill
The bill will remake the following provisions:
It will also implement amendments agreed in the Government response to the Parliamentary Joint Committee on Intelligence and Security's review into the declared area provisions.
The bill will also extend the reporting date for the Independent National Security Legislation Monitor's review of Division 105A of the Criminal Code.
Reasons for Urgency
Passage of the bill is required in the 2021 Spring sittings as the current provisions are due to sunset on 7 September 2021. Were these provisions to sunset, all current control orders would cease to be in effect, greatly reducing agencies' ability to manage individuals who pose a risk of terrorism.
That the Senate records its sorrow at the death, on 18 June 2021, of Mr John Raymond Martyr, former member for Swan and former senator for Western Australia, places on record its gratitude for his service to the parliament and the nation and tenders its sympathy to his family in their bereavement.
It is not every day, or even every year, that a blushing neophyte like myself has a chance to be a maiden-twice!
… part of the reason for people believing that life is really difficult today is the constant feeding of soothing syrup in social welfare handouts from government … everybody expects the Government to pick up his personal problems and carry them.
John Martyr was an extreme, avid, fanatic right-winger and he was very proud of that. The extraordinary thing was that, notwithstanding this massive difference in our philosophies, we were very close personal friends. John Martyr had a great capacity to love and to be loved. Those who had the privilege of getting to know him would have found out the true meaning of affection and love.
That so much of the standing orders be suspended as would prevent Senator Siewert from moving a motion to provide for the consideration of a matter; namely, a motion to provide that a motion relating to Australians in lockdown may be moved immediately and take precedence over all other business until determined.
That the Senate notes:
That hundreds of thousands of people are in lockdown across Australia without sufficient access to income support and calls on the Government to provide a disaster payment to all those on income support.
That the question be now put.
The Senate divided. [16:05]
(The Deputy President—Senator Lines)
The Senate divided. [16:08]
(The Deputy President—Senator Lines)
That leave of absence be granted to Senators Keneally, Ciccone, Kitching, Green, Bilyk, McAllister, Sheldon, Ayres, Dodson, McCarthy, Gallacher, Marielle Smith, Walsh and Polley from 9 to 12 August 2021 for personal reasons.
That leave of absence be granted to the following senators from 9 to 12 August 2021:
(a) Senator Colbeck, for returned international traveller quarantine compliance;
(b) Senators Bragg, Fierravanti-Wells and McDonald, for COVID-19 travel restrictions;
(c) Senator Molan, for medical reasons; and
(d) Senators Abetz, Antic, Fawcett, Griff, Hanson, Henderson and McLachlan, for personal reasons.
That leave of absence be granted toSenators Rice, Thorpe, Steele-John and Faruqi from 9 to 12 August 2021 for COVID-19 related reasons.
That the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 and the Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 may be taken together for their remaining stages.
That there be laid on the table by the Minister representing the Minister for Industry, Science and Technology, by no later than 9.30 am on Wednesday, 11 August 2021, the decision briefs and merit assessment packs prepared by the Department of Industry Science, Energy and Resources with respect to the Translation and Integration funding streams of the Modern Manufacturing Initiative.
The Senate divided. [16:18]
(The Deputy President—Senator Lines)
Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:
The Prime Minister's refusal to take responsibility and be accountable, more concerned about passing the buck than coming clean.
The Commonwealth will provide a 50 per cent contribution for costs incurred by States, through monthly payments, for the diagnosis and treatment of COVID-19 including suspected cases.
The Commonwealth will provide a 50 per cent contribution for costs incurred by States, through monthly payments, for other COVID-19 activity undertaken by State public health systems for the management of the outbreak.
I take responsibility for the early setbacks in our vaccination program. I also take responsibility for getting them fixed and that we are now matching world's best rates, with more than a million doses every week.
Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee report:
Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement?
5 August 2021
Introduction
The Australian Government welcomes the opportunity to respond to the report of the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee (the Sub-committee) on its inquiry into the use of targeted sanctions to address human rights abuses: Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement? (the report).
The Government recognises and appreciates the work of the Sub-committee. It is a comprehensive and detailed report, with 33 recommendations relevant to both the focus of the inquiry and to the administration of Australia's established sanctions framework more broadly.
The Government has carefully considered the report and agrees with the majority of the Sub-committee's recommendations. Australia has a proud history of protecting and promoting human rights globally, and implementation of the majority of the Sub-Committee's recommendations will expand the range of tools available to the Government to respond to situations of international concern involving human rights violations and abuses. Given the broad range of recommendations and their relevance to established processes, the Government's consideration of the report has included close scrutiny of Australia's existing sanctions posture, and whether broader reforms are warranted.
In responding to the Sub-committee's report, the Government will undertake a wide range of reforms to the existing autonomous sanctions framework. Such reforms will be aimed at modernising the legislative basis for Australian autonomous sanctions and ensuring that our autonomous sanctions regimes can adapt to Australia's evolving national interests and more swiftly and effectively be used to respond to situations of international concern. The Government will reform the existing autonomous sanctions framework to identify broad categories of situations in relation to which sanctions can be applied. These situations will include the proliferation of weapons of mass destruction, threats to international peace and security, such as serious human rights violations and abuses and malicious cyber activity, and activities undermining the rule of law and good governance, such as corruption. The reforms will include establishing thematic criteria for sanctions listings which will enable the Minister for Foreign Affairs to impose sanctions on individuals and entities in response to serious human rights violations and abuses and serious corruption occurring anywhere in the world. The reforms will also provide the opportunity to address inconsistent and ambiguous phraseology in the existing sanctions legislation.
Australia can, and already does, impose autonomous sanctions in response to situations of international concern within its existing country-based sanctions regimes. The expansion of the autonomous sanctions framework to include thematic sanctions will build on this existing approach, and enhance the Government's flexibility to deploy sanctions in response to situations of international concern, if deemed appropriate and in our national interest, including in collaboration with our closest partners who have such powers.
The Government will undertake a broader review of Australia's autonomous sanctions framework within 12 months of commencement of the amended legislation to ensure the framework is aligned with contemporary foreign policy objectives. The review-the first of its kind since the establishment of the autonomous sanctions framework a decade ago-will provide the opportunity to achieve efficiencies in existing sanctions processes and ensure that the sanctions regulatory, compliance and enforcement toolkit remains fit-for-purpose. It will provide the opportunity to consider the efficacy of the human rights and corruption-related amendments, including the decision-making processes, and it will include consideration of whether additional legislative reform is necessary.
While the broader review will consider a range of issues, including compliance and enforcement of our sanctions regimes, the Government does not support any reform that would substantially diminish Ministerial discretion in the making of sanctions listings, facilitate unlimited debate about potential listings, or forewarn potential targets. Accordingly, the Government does not support recommendations made by the Sub-committee that would have such impacts and undermine the effectiveness of sanctions.
The listings of individuals and entities for sanctions will continue to be considered on a case-by-case basis, following consideration of all relevant international obligations, foreign policy considerations and risks. Coordinated sanctions action with international partners will continue to be an option, to be undertaken when Australia deems it in our national interest.
Australians and international partners rightly have high expectations of Australia, and Australia acts decisively and impactfully for the broader good. The Government recognises the importance of safeguarding our economy from the proceeds of the most egregious human rights violations and abuses and corruption. Such reform serves to not only bar such perpetrators from benefitting from the fruits of our democracy, but also to curb criminal foreign influence in our banking systems. Positioning Australia to act more quickly to freeze out perpetrators and beneficiaries in cooperation with likeminded partners will ensure that we do not become an isolated, attractive safehaven for such proceeds.
The Government's response to the Sub-committee's report will ensure that Australia's sanctions framework continues to play an important role in our foreign policy, in defining, defending and demonstrating our values, and supporting our ability to act in support of the international rules based order.
The Government thanks the Sub-committee for its work in preparing its report, including considering 162 written submissions and holding 8 days of hearings.
Sub-committee Recommendations
Recommendation 1
The Sub-committee recommends that the Australian Government enact stand-alone targeted sanctions legislation to address human rights violations and corruption, similar to the United States' Magnitsky Act 2012.
Response: Agreed in principle.
The Government agrees to introduce a new thematic sanctions regime targeting serious human rights violations and abuses, and serious corruption, as part of broader reforms to the existing autonomous sanctions framework, through amending the Autonomous Sanctions Act 2011 and making consequential amendments to theAutonomous Sanctions Regulations 2011 .
The existing autonomous sanctions regime provides a framework for the imposition of sanctions, including targeted financial sanctions and travel bans, although to date such sanctions have been primarily country-based.
The reforms will:
Incorporating new thematic criteria into the existing autonomous sanctions framework will ensure consistency of powers, offences and procedural safeguards across Australia's broader autonomous sanctions framework. It will also enable implementation using existing processes and legislative schemes, consistent with Recommendation 30.
The Government will undertake a broader review of Australia's autonomous sanctions framework within 12 months of the commencement of the amended legislation to ensure the framework is aligned with contemporary foreign policy objectives. It will provide the opportunity to consider the efficacy of the human rights and corruption-related amendments, including the decision-making processes, and it will include consideration of whether additional legislative reform is necessary.
Recommendation 2
The legislation should include a preamble, which would set out the broad purposes and general principles of the Act.
Response: Agreed in principle.
As part of broader reforms to the autonomous sanctions framework, the Government will amend the Autonomous Sanctions Act 2011 (the Act) to identify broad categories of situations in relation to which autonomous sanctions may be applied. Such situations will include serious human rights violations and abuses and serious corruption. Consistent with legislative drafting practice, the amendments will introduce a new objects clause into the Act. The policy objectives and intended purpose of the amendments will be set out in the explanatory memorandum. The Government will issue public-facing guidance to support understanding of and compliance with the new thematic sanctions regime. This will be in addition to existing support mechanisms available through the Australian Sanctions Office within the Department of Foreign Affairs and Trade (DFAT).
Recommendation 3
The range of conduct that may be sanctioned should include serious human rights abuse and serious corruption.
Response: Agreed.
The Government agrees to make reforms to the existing autonomous sanctions regime to provide that targeted sanctions can be imposed on the basis of serious human rights violations and abuses, and serious corruption . The Government will give careful consideration to the scope of conduct that will constitute serious human rights violations and abuses and serious corruption.
Recommendation 4
The new targeted sanctions legislation should apply to 'serious human rights abuses' with further guidance on thresholds and applicable conduct provided in the preamble.
Response: Agreed in principle.
The Government agrees to amend the existing autonomous sanctions framework to identify broad categories of situations in relation to which autonomous sanctions may be applied, and to include new thematic human rights and corruption-based criteria for sanctioning individuals or entities. The new listing criteria will have a high threshold that applies to serious human rights violations and abuses, and serious corruption, reflecting that the new regime is a foreign policy tool designed to respond to the most egregious situations of international concern.
In respect of human rights, the new thematic criteria will be focused on three particular rights relating to physical integrity: (i) the right to life; (ii) the right to be free from slavery, not to be held in servitude or required to perform forced or compulsory labour; and (iii) the right to not be subjected to torture or cruel, inhuman or degrading treatment or punishment. The regime will also focus on serious corruption.
Although Australia does not recognise a hierarchy of human rights, violations and abuses of these particular rights can have a devastating and often irreversible impact on the physical and mental integrity of a person, as well as on wider society. Focusing on these three rights enables clear criteria to be set for the application of the regime.
The Government recognises the need for guidance on thresholds and applicable conduct, to ensure the new thematic regime is as accessible as possible. The policy objectives and intended purpose of the amendments, and examples of sanctionable conduct, will be set out in the explanatory memorandum and in public-facing guidance.
The efficacy of the human rights and corruption-related amendments to the autonomous sanctions framework will be considered as part of the broader legislative and regulatory review of the autonomous sanctions framework.
Recommendation 5
The preamble acknowledge the importance of maintaining journalist and human rights defenders' human rights and expressly state that systematic extrajudicial actions that intend to limit media freedom can be considered human rights abuses.
Response: Agreed in principle.
The Government agrees with the importance of maintaining journalist and human rights defenders' human rights. Adverse conduct relating to media freedom could give rise to a range of human rights violations and abuses which would fall within the scope of the new regime, depending on the individual circumstances of a case. The new thematic listing criteria will capture limits to media freedom where such limitations involve serious violations or abuses of one of the three specified rights under the regime, such as activities involving the killing, torture or enslavement of journalists.
As per the Government's response to Recommendations 2 and 4, the policy objectives and intended purpose of the amendments, and examples of sanctionable conduct, will be set out in the explanatory memorandum and in public-facing guidance.
Australia actively supports media freedom and the protection of journalists in our region and globally in a number of other direct and practical ways including: advocating for the protection of journalists, bilaterally and in multilateral forums including the UN Human Rights Council; and supporting and developing a strong, professional and sustainable media sector in partner countries in the Indo-Pacific region. Australia also supports international action as a member of the Media Freedom Coalition and the UNESCO Group of Friends on the Safety of Journalists.
Recommendation 6
The legislation should name the range of conduct which can be sanctioned as 'Magnitsky conduct' .
Response: Noted.
It is important that Australia's autonomous sanctions framework is as accessible and comprehensible to the public as possible, now and into the future. The reforms will identify the conduct in relation to which sanctions can be imposed. The Government will seek to ensure that the framework is not limited by context-specific terminology. The amendments will be accessible, consistent with clarity of laws principles, and drafted in accordance with the Office of Parliamentary Counsel's Drafting Directions.
Recommendation 7
Sanctions should be applicable to the immediate family and direct beneficiaries of human rights abusers.
Response: Agreed.
Consistent with several of Australia's existing country-based autonomous sanctions regimes, the Government agrees that the new regime should be capable of being applied broadly (including capturing immediate family and direct beneficiaries of relevant conduct), and subject to ministerial discretion based on analysis of the relevant listing criteria, risks and Australia's national interest, in addition to considerations of procedural fairness and the protection of human rights. It will be critical to ensure the regime has an appropriate level of flexibility to ensure all relevant considerations can be taken into account, and sanctions are only applied beyond the immediate perpetrators of the relevant serious human rights violation or abuse where it is reasonable to do so.
Recommendation 8
The Sub-committee recommends that sanctions be applicable to all entities, including natural persons, corporate entities and both state and non-state organisations.
Response: Agreed.
Consistent with Australia's existing autonomous sanctions framework, the Government agrees that the new regime should be capable of being applied to all entities, subject to the national interest analysis referred to in the response to Recommendation 7.
Recommendation 9
The Sub-committee recommends that sanctions be applicable to associated entities, broadly de fined.
Response: Agreed.
The new regime will include the ability, subject to analysis of the national interest referred to in the response to Recommendation 7, to designate entities for targeted financial sanctions where the entity has been involved in, is involved in or is benefiting from, the relevant human rights violation or abuse of concern. This may capture associated entities, depending on the circumstances.
Recommendation 10
The new targeted sanctions legislation should not apply to Australian citizens because they are subject to legislation with similar, if not stronger, consequences. This issue should be re-examined as part of the 3-yearly review.
Response: Noted.
Australian autonomous sanctions are a foreign policy tool, used in pursuit of foreign policy goals. Under the new regime, sanctions will be able to be imposed on any person, including Australian citizens or residents, where a sufficient connection is established between that person and the relevant conduct of concern in a foreign country. Australia's current autonomous sanctions framework does not specifically exclude Australian citizens from the imposition of targeted financial sanctions and travel bans. To date, it has been Australia's practice not to apply sanctions to individuals within its territorial jurisdiction due to the availability of other measures, including criminal justice processes, and the disproportionate impact of those sanctions on the broader community.
As with existing autonomous sanctions regimes, the appropriateness of imposing sanctions under the new regime will be considered on a case-by-case basis with regard to the particular circumstances and Australia's national interest.
Recommendation 11
The new targeted sanctions legislation be applicable to conduct that has occurred prior to enactment of the legislation.
Response: Agreed.
The new regime will enable the imposition of targeted financial sanctions and travel bans against persons and entities that meet the listing criteria under the regime. The new regime will be incorporated into the existing autonomous sanctions framework, under which the criteria enabling listing for sanctions can include conduct that occurred prior to the commencement of the legislation.
The appropriateness of making any sanctions listings will be considered on a case-by-case basis with regard to the particular circumstances, including the likely effectiveness of sanctions relative to other response measures, and Australia's national interest.
Recommendation 12
The Sub-committee recommends that an independent advisory body be constituted to receive nominations for sanctions targets, consider them and make recommendations to the decision maker.
Response: Not agreed.
Sanctions are a foreign policy tool aimed at achieving foreign policy goals. Decisions to impose targeted financial sanctions and travel bans appropriately rest with the Minister for Foreign Affairs (as per Recommendation 17). Such decisions are made in light of careful consideration of all foreign policy considerations, risks and Australia's national interest. It is important that the Government retain appropriate flexibility in the application of sanctions, as acknowledged by the Sub-committee in its report.
The Government does not agree to the establishment of an independent advisory body. The Government encourages public engagement on human rights issues and, as a matter of practice, considers representations relating to potential sanctions from a wide range of sources.
The Government notes that the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT) could perform some of the functions of an independent advisory body, and inquire into and make recommendations on possible listings under the new regime in respect of particular situations of international concern, following referral by the Minister for Foreign Affairs or either House of Parliament. It would also be open to the JSCFADT Human Rights Sub-committee to request that the Department of Foreign Affairs and Trade provide private briefings on human rights situations in particular countries. The JSCFADT is just one means of achieving independent advice, and any such referrals could complement existing procedures that inform Ministerial decisions on sanctions listings.
Recommendation 13
The structure of t e independent advisory body should be set out in regulations, and should include the ability to conduct its inquiry in public.
Response: Not agreed.
As per its response to Recommendation 12, the Government does not agree to the establishment of an independent advisory body.
In addition, it is not appropriate for consideration of potential sanctions targets to occur in a public setting. In order to maximise the impact of Australian sanctions it is essential that the potential targets of sanctions do not receive advance notice that sanctions may be applied against them. This could invite potential targets to pre-emptively move any assets or interests they hold in Australia, thereby undermining the intended impact of sanctions. The Government will continue to receive nominations from multiple sources and encourages public engagement on human rights issues.
Recommendation 14
The new legislation should require the decision maker to consider recommendations by the advisory
body and give reasons for any decision not to adopt a recommendation by the advisory body.
Response: Not agreed.
As per its response to Recommendations 12 and 13, the Government does not agree to the establishment of an independent advisory body.
Further, this process would risk damage to our international relations. It would also impinge on the Minister's broad discretion, which the Sub-committee recommended be maintained (refer Recommendation 20).
Recommendation 15
The decision maker should be able to receive nominations from any source.
Response: Agreed.
Any individual or organisation can make representations to the Government regarding potential sanctions targets. Further, consistent with current practice, the Government will conduct regular consultation on human rights issues, and may receive suggestions for sanctions listings from a range of sources. The Government encourages public engagement on human rights issues. The Government will give further consideration to developing a streamlined mechanism to consult with civil society and other stakeholders on listing recommendations under the new regime.
Recommendation 16
The legislation, or regulations under the legislation, set out processes to allow Australian authorities to work with other jurisdictions and their sanctions regimes.
Response: Agreed in principle.
The Government agrees that it is appropriate and desirable for Australian authorities to work with international partners on sanctions when it is in Australia's national interest . Australia already engages closely with international partners in relation to sanctions, including to share information about potential sanctions target s. Existing cooperation mechanisms in this regard are appropriately flexible and need not be legislated.
Recommendation 17
The Minister for Foreign Affairs be the decision maker .
Response: Agreed.
Sanctions are a foreign policy tool aimed at achieving foreign policy goals. It is appropriate that the decision to impose targeted sanctions rests with the Minister for Foreign Affairs, following consultation across Government to ensure consideration of all relevant foreign policy considerations and risks.
Recommendation 18
The Minister for Foreign Affairs should be required to consult with the Attorney-General before making a decision.
Response: Agreed.
Prior to listing, the Minister for Foreign Affairs will be required to consult and obtain the agreement of the Attorney-General, and other relevant Ministers as appropriate. This will ensure sanctions listings decisions are made following consideration of all relevant policy considerations and risks.
Recommendation 19
The Sub-committee recommends that the legislation include a requirement to give the targeted person a right of reply, and a requirement for the Minister to consider this, before imposing sanctions.
Response: Not agreed.
In order to achieve the objectives and maximise the impact of Australian sanctions, it is essential that the potential targets of sanctions do not receive advance notice of potential sanctions. Providing advance notice of potential sanctions listings could result in the person or entity moving assets within Australia's jurisdiction to another jurisdiction, undermining the effectiveness of sanctions.
Consistent with the current autonomous and counter-terrorism sanctions framework, consultation will be undertaken with listed persons and entities (or their legal representatives) on potential renewals of sanctions listings. Further, listed persons and entities will be able to apply to the Minister to have their sanctions listing revoked immediately after their imposition, providing an appropriate avenue for the listing to be reconsidered.
Recommendation 20
The Minister for Foreign Affairs should have broad discretion as to whether or not to impose sanctions. This would include the ability to remove or vary sanctions.
Response: Agreed.
Sanctions are a foreign policy tool aimed at achieving foreign policy goals. It is appropriate that the decision to impose, remove or vary targeted sanctions rests with the Minister for Foreign Affairs, following consultation across Government to ensure consideration of all relevant foreign policy considerations and risks.
Recommendation 21
The Sub-committee recommends that the legislation allow for a 'watch list' of people being considered for sanctioning. Inclusion on a watch list should be for a fixed time period, after which a person must either be sanctioned or removed from the list. The watch list should be public.
Response: Not agreed.
In order to maximise the impact of Australian sanctions it is essential that the potential targets of sanctions do not receive advance notice of potential sanctions. Providing advance notice of potential sanctions fistings could result in individuals and entities moving assets within Australia's jurisdiction to another jurisdiction, undermining the effectiveness of sanctions.
Recommendation 22
The evidentiary standard for a decision should be the balance of probabilities.
Response: Noted.
The new regime will empower the Minister for Foreign Affairs to list persons and entities for targeted financial sanctions and travel bans where satisfied they meet the relevant listing criteria. Such decisions will be made based on evidence and will ensure that listings decisions are credible, timely and allow the Minister to exercise suitable discretion, as recommended by the Sub-committee. This would be consistent with the Minister's decision-making power under the existing autonomous sanctions framework. The new regime will be established within this framework.
Recommendation 23
The Sub-committee recommends that the legislation require the publication of the names of sanctioned people and the reasons for their listing. This includes all decisions to remove or vary sanctions.
Response: Agreed in principle.
The Government agrees it is important for the public, particularly affected industries, to have up-to-date information about Australian sanctions. Any persons or entities sanctioned under the new regime would be included on the Consolidated List, pursuant to regulation 22 of the Autonomous Sanctions Regulations . The Consolidated List provides detail about sanctions listings, including the regime under which each person or entity is listed, and is published on the DFAT website. It is updated to reflect amendments to or removals of listings. DFAT notifies subscribers of these updates. As noted by the Sub-committee in Recommendation 26, it may not always be appropriate to include all reasons as to why a person or entity is listed (for example, some of the material may be classified). Sanctions listing instruments made by the Minister for Foreign Affairs, provide details of persons and entities who are listed, and these are also published on the Federal Register of Legislation.
Recommendation 24
The Sub-committee recommends that the legislation require the Foreign Minister to publish an annual report to Parliament advising of sanctions.
Response: Noted.
The Government encourages public engagement on issues of human rights and foreign policy. The Government considers that there are already existing Parliamentary processes in place that allow for appropriate scrutiny of Australia's sanctions, such as Senate Estimates. Under the existing sanctions framework, the Consolidated List is updated regularly to reflect new listing decisions, and is published on the DFAT website. The Australian Sanctions Office within DFAT, as Australia's sanctions regulator, is subject to the Regulator Performance Framework managed by the Department of the Prime Minister and Cabinet. This framework includes an annual regulator self-assessment report, which is published on the DFAT website.
These processes provide the appropriate level of reporting, transparency and oversight for application of sanctions as a foreign policy tool.
Recommendation 25
The Sub-committee recommends that the Foreign Minister's annual report into the sanctions should stand referred to the JSCFADT for inquiry.
Response: Noted.
As per its response to Recommendation 24, the Government considers that the current reporting, transparency and oversight measures for sanctions are appropriate at this time, in light of their status as a foreign policy tool.
Under the existing sanctions framework, the Consolidated List is updated regularly to reflect new listings decisions, and is published on the DFAT website. The Australian Sanctions Office within DFAT, as Australia's sanctions regulator, is subject to the Regulator Performance Framework managed by the Department of the Prime Minister and Cabinet. This framework includes an annual regulator self-assessment report, which is published on the DFAT website.
Recommendation 26
The Sub-committee recommends that there be limited exemptions from including information on the public register, watch list or annual report for reasons of national security or criminal investigations.
Response: Not ed.
The Government agrees that it is important to protect classified information, and to consider the effect on national security and any domestic proceedings before publicising information . It is not appropriate to disclose information that would reveal foreign policy considerations. The Government is committed to best practice transparency, accountability and information handling requirements.
Recommendation 27
The Sub-committee recommends that the legislation include a right for a sanctioned person to request a review of decision. The Minister should be required to conduct a review on request, although the regulations may limit the obligation to conduct reviews.
Response: Agreed.
Consistent with the current approach under the existing autonomous sanctions framework, listed persons and entities will be able to apply to the Minister to have their sanctions listing revoked, providing an avenue for the listing to be reconsidered. Decisions to list persons and entities for sanctions can also be subject to judicial review.
Recommendation 28
The Sub-committee recommends that targeted sanctions legislation be reviewed by the government three years after commencement.
Response: Agreed in principle.
The Government keeps its sanctions framework under regular review. The Government will make reforms to the existing autonomous sanctions framework to identify broad categories of situations of international concern in relation to which sanctions can be applied and to introduce new thematic human rights and corruption listing criteria. The Government will undertake a broader review of Australia's autonomous sanctions framework within 12 months of the commencement of the amended legislation to ensure the framework is aligned with contemporary foreign policy objectives. It will provide the opportunity to consider the efficacy of the human rights and corruption-related amendments, including the decision-making processes, and it will include consideration of whether additional legislative reform is necessary.
Recommendation 29
The Sub-committee recommends that the sanctions include visa I travel restrictions, limit access to assets, and restrict access to Australia's financial systems.
Response: Agreed.
The new regime will enable the listings of persons and entities for sanctions if they meet the relevant criteria and if the imposition of sanctions is in Australia's national interest. Such sanctions could include targeted financial sanctions and travel bans. The effect of declaration of a travel ban means that a person is unable to travel to Australia without authorisation; the effect of designation for targeted financial sanctions means that designated persons and entities are unable to access assets they have in Australia (that is, their assets are effectively frozen), or receive assets from persons or entities in Australia without authorisation.
Recommendation 30
The Sub-committee recommends that the sanctions, to the extent possible, be implemented using existing processes and legislative schemes.
Response: Agreed.·
The Government agrees to the establishment of a new thematic sanctions regime targeting human rights violations and abuses and corruption as part of broader reforms to the existing autonomous sanctions framework, which provides a comprehensive framework for the application of sanctions. The Government will amend the primary legislation, Autonomous Sanctions Act 2011 , and make consequential amendments to theAutonomous Sanctions Regulations 2011 . The Government will review the operation of the reforms as part of the broader review of the entire autonomous sanctions framework. This review will ensure that the sanctions regulatory, compliance and enforcement toolkit remains fit-for-purpose in the current foreign policy and international security context.
This will ensure consistency with respect to powers, offences and procedural safeguards. It will also help to minimise the compliance burden the new regime places on industry, in line with the Government's broader deregulation agenda.
Recommendation 31
The Sub-committee recommends that the new sanctions regime be accompanied by a public diplomacy strategy to provide guidance to those affected, including Australian businesses.
Response: Agreed.
The Government will implement a public diplomacy strategy to clearly communicate the objectives and operation of the reforms, including consulting relevant stakeholders (particularly industry and non-government organisations). This will include roundtables, other outreach and information sharing processes.
Close consideration will be given to minimising the compliance burden on industry, in line with the Government's broader deregulation agenda.
The Government considers it is critical to ensure that information about Australia's sanctions is accessible and comprehensible, particularly for impacted industries. The Australian Sanctions Office (ASO) within the Department of Foreign Affairs and Trade currently undertakes outreach to impacted businesses and organisations to support compliance with the existing regulatory framework for sanctions. The ASO will continue to conduct this outreach and will provide guidance to businesses on how they can meet their obligations under the new regime.
The implementation of this recommendation will require dedicated resources.
Recommendation 32
The Department of Foreign Affairs and Trade should be given additional resources to implement the sanctions regime. Other departments required to contribute to implementation should also be allocated dedicated resourcing for the task.
Response: Noted.
The new thematic regime will be a new function for the Department of Foreign Affairs and Trade. Decisions about resourcing will be made by the Government.
Recommendation 33
The long title of the legislation should include 'Magnitsky' to emphasise links with the Global Magnitsky movement.
Response: Not agreed.
The current Act will be amended but the title will remain the same. The reforms will capture a range of issues broader than those related to Magnitsky or human rights, and will not be targeted against any particular country or issue.
Specifically, the reforms will update the autonomous sanctions framework to identify categories of situations in relation to which sanctions can be applied. The reforms will include a wider review focused on ensuring the existing autonomous sanctions framework is fit-for-purpose and aligned with contemporary foreign policy objectives.
That the Senate take note of the document.
The centres have successfully leveraged government funding to raise private sector funds for the projects they support, as well as helping raise more than $200 million in equity.
The centres have intensive networks and expertise, and responded with agility to the Covid-19 pandemic—
The government has a real opportunity to introduce a stand-alone, targeted, human-rights sanctions act. However, it wants to amend the clunky Autonomous Sanctions Act, which even the parliamentary committee agreed was ineffective.
'We are trying to get oxygen cylinders every day but it is hard,' he told the ABC.
'The military are trying to take the cylinders from some plants because their first priority is for army families and then second the military hospitals.'
… the junta was happy to let the virus rip through areas of the country which it believed were hostile to the military regime.
'They [the army] are killing us,' …
The government has a real opportunity to introduce a stand-alone, targeted, human-rights sanctions act. However, it wants to amend the clunky Autonomous Sanctions Act, which even the parliamentary committee agreed was ineffective.
Our sanctions regime must act as a deterrence to those who would target schools and hospitals in armed conflict …
However, narrowing the human rights criteria, as outlined in the Government's response, may not cover such violations of international humanitarian law.
Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
Today I am introducing the Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021.
Affordable and accessible child care supports social and early learning outcomes for children, and helps families to participate in the workforce.
This Bill implements the Government's changes to the Child Care Subsidy announced in the 2021-22 Budget, building on the success of the Government's Child Care Package implemented in July 2018.
Three years on, our child care system continues to deliver a single, Child Care Subsidy for all families in Australia, with higher subsidies to those that earn the least and no subsidies for those earning more than around $353,000.
The hourly fee cap introduced in 2018 continues to keep downward pressure on fees.
These changes will maintain the integrity of the existing Child Care Subsidy, ensuring the reduction of out-of-pocket child care expenses for families and targeting additional support for those families who currently pay the most - those with multiple children aged under six.
It is anticipated that the changes will add up to 300,000 hours of work per week, or the equivalent of around 40,000 parents who will be able to work an extra day per week. It will boost GDP by up to $1.5 billion per year.
Strong participation in the labour market has never been more critical than it is now, as Australia moves into the recovery phase of our COVID-19 pandemic response.
Thanks to our strong economy, women's workforce participation reached an all-time high of 61.8 per cent in March 2021.
The first element of this Bill removes the annual cap of $10,560 for all families earning over $189,390 from 1 July 2022, so that no family has an annual cap on child care subsidies.
Removing the annual cap ensures families maximise the extra benefit generated by the increased subsidy. Removing the annual cap also means we will remove a structural disincentive to take on additional days of work for many families. This will encourage parents, especially second-income earners who are more often women, to get back to work or work more.
The second element in the Bill will increase the maximum subsidy rate for second and subsequent children, where a family has more than one child under six, from 11 July 2022.
Under this element, families will receive an increased subsidy of 30 percentage points, up to a maximum subsidy rate of 95 per cent, for second and subsequent children accessing child care aged under six.
This ensures support for the families who need it most, and who face the biggest barriers to participation in the labour market - those with multiple young children in care at the same time.
It also ensures that families on the lowest incomes, who may already be close to the generous maximum subsidy, benefit from these changes and continue to receive the highest rate of subsidy.
These changes will benefit around 250,000 families in Australia each year.
Taken together, these changes will put more money in the hands of Australian families, especially those who need it most, while also maintaining parental co-contribution, which also helps to keep downwards pressure on child care fees. Our activity test remains in place to ensure families must be undertaking activity, such as working, training or studying to be eligible for child care subsidies. These are core principles of the Government's Child Care Subsidy.
Implementation of these changes will require changes to the system administering the Child Care Subsidy, including complex IT and other system build alterations.
The Government is working to implement this across two phases. A two phased approach will ensure Services Australia has time to complete the necessary system build to give effect to the Government's commitment, without jeopardising implementation at the earliest possible date.
It is anticipated we will be able commence implementation by July 2022. Should it be possible to bring the commencement of the measure forward, we will do this so that families can benefit sooner. That is why the Bill makes it possible for earlier implementation, with a date to be set by proclamation.
We are working hard to make sure this investment puts more money in the pockets of everyday Australian families as soon as possible.
I commend this Bill.
Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2021
That these bills may proceed without formalities, may be taken together and be now read a first time.
That these bills be now read a second time.
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT (TITLES ADMINISTRATION AND OTHER MEASURES) BILL 2021
The Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021 amends the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Australia's offshore oil and gas industry has supported Australia's energy security and economy for over 50 years. It has delivered enormous benefits in the form of export earnings, employment and investment.
There are particular points in the life-cycle of an industry when regulatory frameworks and practices need to adapt to changing circumstances.
For Australia, that time is now. We need to be positioned to respond to future decommissioning challenges with effective regulatory oversight and robust safety nets to strengthen protections for the taxpayer, workers and the environment.
In the coming decades, there will be a number of offshore projects which have exhausted their reserves and require decommissioning. This is a normal part of the resource development lifecycle.
During this time, new projects will continue to be developed such as the Scarborough, Browse and Barossa gas projects and the Dorado oil project.
As the industry continues to mature, large companies may move to divest their mature assets to focus on areas of new production potential. Australia can expect to see new entrants to the industry who bring a fresh perspective and a different risk profile.
The recent liquidation of a company operating an oil producing asset in Australian waters demonstrates the importance of the regime able to recognise and adapt to different risk profiles of the offshore industry.
This Bill ensures that companies operating in Australia's offshore oil and gas regulatory regime are capable, competent and responsible in managing their offshore projects. It ensures decommissioning remains the responsibility of the businesses involved in the oil and gas development, protecting the Australian taxpayer and the environment.
This Bill makes the changes necessary to implement aspects of the Australian Government's Enhanced Offshore Oil and Gas Decommissioning Framework.
The Bill also gives effect to the relevant recommendations of the independent review into the circumstances leading to the liquidation of Northern Oil and Gas Australia, known as the Walker Review.
This Bill confirms this government's commitment to have the world's most advanced, innovative and successful offshore oil and gas sector, which delivers sustained prosperity and social development for all Australians.
The Bill amends the Act to ensure government oversight and scrutiny of transactions involving a change of control of a petroleum or greenhouse gas titleholder, through a merger or takeover.
While this type of transaction is not currently captured by the Act, it may result in a new entity ultimately obtaining control of the titleholder and may impact the titleholder's ability to finance and meet its obligations.
Failure to obtain regulatory approval for this type of corporate transaction could now result in a significant civil penalty. This approach is consistent with similar regimes across the Commonwealth, and will be a deterrent for corporate misconduct.
Contravening the requirement to obtain approval is also grounds for cancellation of the title.
With an estimated $60 billion in anticipated decommissioning liabilities falling due over the next 30 years, the government needs to ensure it can call upon former titleholders to decommission and remediate the area in the unlikely event that the current titleholder is unable to do so.
The Bill expands current directions powers to enable any former titleholder, or 'related person' to carry out decommissioning activities - known as trailing liability.
As the Act stands now, only an immediate former titleholder can be directed to decommission and remediate an area.
Although this is an action of last resort, which should be used only when all other safeguards have been exhausted, it reduces risk.
It reduces the environmental, health and safety risks associated with the potential abandonment of assets and infrastructure. It reduces the associated risk that the financial obligations of decommissioning will be left to Australian taxpayers.
It also sets the expectation that sellers will undertake appropriate due diligence before selling assets, titles and infrastructure, so they can avoid being called back to decommission and remediate title areas.
Trailing liability is a feature of comparable, mature offshore oil and gas regimes which are considered leading practice jurisdictions.
The Bill also increases the regulatory scrutiny of entities at key decision points, and expands the types of information that can be requested by the decision maker.
This ensures the government is better equipped to 'screen' applicants, reducing the risk that an entity that does not meet the financial and technical capability requirements will undertake petroleum or greenhouse gas activities in Australian waters including decommissioning.
It also provides for amendments to improve the administration of petroleum and greenhouse gas titles, including enabling electronic lodgement of applications and documents.
This Bill demonstrates this government's ongoing commitment to having a globally recognised oil and gas sector, which continues to deliver significant employment and economic activity.
It ensures we strike the right balance between investment and managing a maturing industry.
It delivers a strong and effective regulatory framework for offshore petroleum and greenhouse gas activities.
I commend the Bill to the chamber.
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE (REGULATORY LEVIES) AMENDMENT BILL 2021
The Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2021 amends the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003 .
This Bill accompanies the Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021 and enables the National Offshore Petroleum Safety and Environmental Management Authority to expand existing cost recovery arrangements to former titleholders and related persons when a direction is issued.
I commend the Bill to the Chamber.
Treasury Laws Amendment (2021 Measures No. 1) Bill 2021
Boards and senior executives will be able to say they were not negligent with respect to the information that should have been disclosed if they did not have it, whether or not they ought to have had it …
The economic significance of fair and efficient capital markets dwarfs any exposure to class action damages.
… the Class Actions Committee of the LCA is of the view that the Bill's impact on the continuous disclosure regime and the prohibitions on misleading and deceptive conduct 'will dampen the ability of the regulators and of shareholders to enforce corporate accountability for wrongdoing'.
… these reforms will not lead to a lower standard of conduct, more limited disclosure or an inability to successfully prosecute cases of significant concern. However, the Corporations Committee suggests that these reforms may redress the technical imbalance in continuous disclosure laws that has contributed to inflated insurance.
There is no civil statutory liability of directors to shareholders. In relation to the statutory liability of a company to shareholders, in order to establish a claim for loss against the company for a misleading statement or omission to make a disclosure, a shareholder must show that a director knew that the statement was materially misleading or was reckless—
as to whether it was, or that a director dishonestly—
concealed a material fact, and that he acquired, continued to hold or disposed of the relevant securities in reliance on the misleading statement or omission …
So the new instruction to management from Boards could be, if you want to keep some information to yourself or exaggerate a bit just make sure you don't tell me so no one can sue me … this is a real danger.
Australia's continuous disclosure obligations and misleading and deceptive conduct provisions are critical to protect market integrity and maintain the good reputation of Australia's financial markets. Confidence in the integrity of Australia's equity markets encourages investor participation; contributes to liquidity; stimulates more competitive pricing; and lowers the cost of capital.
Markets cannot operate with a high degree of integrity unless the information critical to investment decisions is available and accessible to investors on an equal and timely basis. That is why market cleanliness and continuous disclosure are essential to investor confidence. Price discovery in a clean market is efficient. Asset prices react immediately after new information is released through appropriate channels and thereby more closely reflect underlying economic value.
… the CD regime—
… has been in place for 30 years, and it's regarded as a world leader. The markets have prospered under this regime. Just to emphasise that point again, ASIC didn't consider it necessary for it to even be reviewed, because it's very highly regarded.
… retail investors don't have the same access to information that the institutional investors have. They've got some hesitancy about information, and that's reflected through the ASX investor survey.
The economic significance of fair and efficient capital markets dwarfs any exposure to class action damages.
…the proposed amendments, in our view, do not change the obligations on continuous disclosure placed on companies and their officers. Directors who are reckless or negligent in respect of their disclosure obligations or who knowingly seek to breach them will continue, under the proposals, to be subject to the full force of the law, as they should be.
…in our view, the current class actions regime leads to adverse outcomes for Australian businesses and shareholders. On continuous disclosure, a strict liability approach is not appropriate for obligations that involve time-sensitive and complex judgement calls, and it is currently too easy to launch or to threaten securities class actions for alleged breaches of these strict liability provisions.
The Senate divided. [19:34]
(The President—Senator Ryan)
The Senate divided. [19:37]
(The President—Senator Ryan)
(1) Schedule 1, page 3 (before line 4), before the heading specifying Corporations Act 2001 , insert:
Part 1—Main amendments
(2) Schedule 1, item 31, page 13 (line 5), omit "At the end of Chapter2G", substitute "After Part2G.4".
(3) Schedule 1, item 31, page 17 (lines 13 to 26), omit subsections 253RB(4) to (7).
(4) Schedule 1, item 31, page 18 (lines 21 to 35), omit subsections 253RC(4) to (7).
(5) Schedule 1, page 21 (after line 15), after item 33, insert:
Part 2—Other amendments
Corporations Act 2001
33A In the appropriate position in Chapter 2G
Insert:
Part 2G.6—Exceptional circumstances
253T Exceptional circumstances—AGM
(1) A public company is taken to comply with subsections 250N(1) and (2) in relation to an AGM if:
(a) the company is in a class of companies specified in a determination under subsection (2); and
(b) the company holds the AGM within the period of extension specified in the determination.
(2) ASIC may, by legislative instrument, make a determination specifying a class of public companies, if ASIC considers that it may be unreasonable to expect the companies in the specified class to hold AGMs within the time required under section 250N because of a situation that is beyond the control of those companies.
(3) The determination must specify a period of extension of that time.
(4) The determination may be subject to specified conditions applying to public companies in the specified class. A company to which a condition specified in the determination applies must comply with the condition. The Court may order the company to comply with the condition in a specified way.
(5) Unless revoked earlier, the determination is repealed at the end of 12 months after the day on which it commences.
253TA Exceptional circumstances—virtual meetings
(1) An entity may hold a meeting of its members, using virtual meeting technology only (even if this is not required or permitted by the entity's constitution expressly), if:
(a) the entity is specified in a determination under subsection (2); or
(b) the entity is in a class of entities specified in a determination under subsection (2).
(2) ASIC may make a determination specifying an entity, or a class of entities, if ASIC considers that it may be unreasonable to expect the specified entity, or entities in the specified class, to hold meetings wholly or partially at one or more physical venues because of a situation that is beyond the control of the entity, or the entities in the class.
(3) The determination is:
(a) a notifiable instrument, if it specifies an entity; or
(b) a legislative instrument, if it specifies a class of entities.
(4) The determination may be subject to specified conditions applying to the specified entity, or to entities in the specified class. An entity to which a condition specified in the determination applies must comply with the condition. The Court may order the entity to comply with the condition in a specified way.
(5) Unless revoked earlier, the determination is repealed at the end of 12 months after the day on which it commences.
(6) A reference in this section to an entity is a reference to any of the following:
(a) a company;
(b) a registered scheme.
33B After section 1344
Insert:
1345 Exceptional circumstances—giving documents
(1) Subsections (2) to (4) apply in relation to a document that is required or permitted under this Act to be given by an entity to another entity (the recipient ) if:
(a) the entity giving the document is specified, or is in a class of entities specified, in a determination under subsection (5); and
(b) the document is specified, or is in a class of documents specified, in the determination.
Giving document by electronic communication etc.
(2) If the determination specifies that the document, or documents in that class, may be given in accordance with this subsection, then the document may be given:
(a) by means of an electronic communication; or
(b) by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically.
(3) However, electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference.
Extension of time
(4) If the requirement or permission mentioned in subsection (1) is for the document to be given within a particular time, the document is taken to have been given within that time if:
(a) the determination specifies a period of extension of that time that applies to the giving of the document by the entity to the recipient; and
(b) the specified period of extension starts after the determination is made; and
(c) the document is given by the entity to the recipient within the specified period of extension.
ASIC may make determination
(5) ASIC may make a determination specifying:
(a) an entity, or a class of entities; and
(b) a document, or a class of documents, required or permitted to be given under this Act (including a class that is any such document); and
(c) one or more matters mentioned in subsections (6) and (7).
(6) ASIC may specify that the document, or documents in that class, may be given in accordance with subsection (2) (giving document by electronic communication etc.), if ASIC considers that it may be unreasonable to expect the specified entity, or entities in the specified class, to give the document, or documents in the specified class, in a physical form because of a situation that is beyond the control of the entity, or the entities in the class.
(7) To the extent that the document, or documents in that class, are required or permitted under the Act to be given by the entity, or the entities in the class, within a particular time (the original time ), ASIC may specify a period of extension of that time applying in relation to the giving of the document or documents in that class, if ASIC considers that it may be unreasonable to expect the entity, or entities in the class, to give the document, or documents in the class, within the original time, because of a situation that is beyond the control of the entity, or the entities in the class.
Other matters relating to determination
(8) A determination under subsection (5) is:
(a) a notifiable instrument, if it specifies an entity; or
(b) a legislative instrument, if it specifies a class of entities.
(9) The determination may be subject to specified conditions applying to the specified entity, or to entities in the specified class. An entity to which a condition specified in the determination applies must comply with the condition. The Court may order the entity to comply with the condition in a specified way.
(10) Unless revoked earlier, the determination is repealed at the end of 12 months after the day on which it commences.
(11) This section has effect despite any election (however described) by an entity to be given a document in a physical form.
Part 3—Application and transitional provisions
Corporations Act 2001
(7) Schedule 1, item 34, page 23 (line 25), omit the heading to section 1679F, substitute:
1679F Amendments made by Part 1 do not apply on and after 1 April 2022
(8) Schedule 1, item 34, page 23 (line 26), omit "16 September 2021", substitute "1 April 2022".
(9) Schedule 1, item 34, page 23 (line 27), before "Schedule 1", insert "Part 1 of".
(10) Schedule 1, item 34, page 23 (line 31), omit "16 September 2021", substitute "1 April 2022".
(6) Schedule 1, item 34, page 22 (line 17) to page 23 (line 3), section 1679B TO BE OPPOSED.
(11) Schedule 1, items 35 and 36, page 24 (lines 1 to 4) TO BE OPPOSED.
(1) Schedule 2, item 55, page 37 (after line 16), at the end of Part 10.56, add:
1683B Review of operation of laws
(1) The Minister must cause a review of the operation of the amendments made by Parts 1 and 2 of Schedule 2 to the amending Act to be conducted by an independent expert within 6 months after the second anniversary of the commencement of this section.
(2) The person who conducts the review must give the Minister a written report of the review.
(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
Recommendations
(4) The report may set out recommendations to the Commonwealth Government.
(5) If the report sets out one or more recommendations to the Commonwealth Government, the report must set out the reasons for those recommendations.
Government response to recommendations
(6) If the report sets out one or more recommendations to the Commonwealth Government, as soon as practicable, and in any event within 3 months, after the report is first tabled in a House of the Parliament, the Minister must cause:
(a) a statement setting out the Commonwealth Government's response to each of the recommendations to be prepared; and
(b) the statement to be published on the Department's website.
1683C Amendments made by Schedule 2 to the amending Act cease to have effect if review of operation of laws is not conducted
(1) This section applies if the Minister:
(a) fails to cause a review to be conducted in accordance with subsection 1683B(1) within the period required by that subsection; or
(b) is given a written report of a review conducted in accordance with subsection 1683B(1), but fails to cause a copy of the report to be tabled in each House of the Parliament within the period required by subsection 1683B(3); or
(c) is given a written report of a review conducted in accordance with subsection 1683B(1) that sets out one or more recommendations to the Commonwealth Government, but fails to cause a statement to be published on the Department's website within the period required by subsection 1683B(6).
(2) This Act and the ASIC Act have effect, on or after the day mentioned in subsection (3), as if the amendments made by Parts 1, 2 and 4 of Schedule 2 to the amending Act had not been made.
(3) The day (the sunsetting day ) is:
(a) the day after the end of the period referred to in the applicable paragraph of subsection (1), unless paragraph (b) of this subsection applies; or
(b) if there is more than one applicable paragraph in subsection (1)—the earliest day determined under paragraph (a) of this subsection for each of those paragraphs.
(4) To avoid doubt, nothing in this section affects the validity of anything that is done, or not done, in reliance on this Act or the ASIC Act as in force before the sunsetting day.
The committee divided. [19:53]
(The Chair—Senator Lines)
(1) Clause 2, page 2 (table items 3 and 4), omit the table items.
(2) Schedule 2, page 25 (line 1) to page 38 (line 8), to be opposed.
The committee divided. [20:03]
(The Chair—Senator Lines)
(1) Clause 2, page 2 (at the end of the table), add:
(2) Page 38 (after line 8), at the end of the Bill, add:
Schedule 3 — Financial reporting obligations for large proprietary companies
Part 1 — Repeal of instrument
ASIC Corporations (Exempt Proprietary Companies) Instrument 2015/840
1 The whole of the instrument
Repeal the instrument.
Part 2 — Grandfathered exemption
Corporations Act 2001
2 Subsection 1408(6) (table item 7)
Repeal the table item.
Part 3 — Application
3 Application
(1) This item applies to a company if, immediately before the commencement of this item, the company was exempted from complying with subsection 319(1) of the Corporations Act 2001 by theASIC Corporations (Exempt Proprietary Companies )Instrument 2015/840 .
(2) Despite the amendments made by Parts 1 and 2, that exemption continues to apply to the company in relation to the 2021 22 financial year.
4 Instruments that provide relief from requirements of Corporations Act — Lodgment of annual reports by large proprietary companies
(1) Despite anything contained in the Corporations Act 2001 , ASIC may not make a legislative instrument, however described, if that legislative instrument would have the effect of relieving the class of companies referred to in subitem (2) of the requirement to comply with subsection 319(1) of the Act for a financial year.
(2) The class of companies is the class of large proprietary companies that was relieved from the requirement to comply with subsection 319(1) of the Corporations Act 2001 due to the operation of theASIC Corporations (Exempt Proprietary Companies) Instrument 2015/840 as in force immediately before the commencement of this Schedule.
… although the provision will ease the transition for some companies from the existing legislation to the new structure the indefinite operation of this provision is not justified on any policy grounds.
… that the government require all companies, trusts and other financial entities with income above a certain amount to lodge general purpose financial statements with the Australian Securities and Investments Commission.
The committee recommends the Australian Government permanently legislate changes to continuous disclosure laws in the Corporations (Coronavirus Economic Response) Determination (No. 2) 2020.
The committee divided. [20:45]
(The Chair—Senator Lines)
The committee divided. [20:51]
(The Chair—Senator Lines)
That this bill be now read a third time.
The Senate divided. [20:58]
(The Deputy President—Senator Lines)
Tertiary Education Quality and Standards Agency (Charges) Bill 2021
Tertiary Education Quality and Standards Agency Amendment (Cost Recovery) Bill 2021
A decision to waive collection of the annual charge for a period of time or for a particular class of higher education providers, could not be taken lightly …
The committee divided. [21:31]
(The Chair—Senator Lines)
That these bills be now read a third time.
The Senate divided. [21:35]
(The Deputy President—Senator Lines)
Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Bill 2021
The law should be amended to establish a new disciplinary system for financial advisers that:
At the end of the motion, add ", but the Senate notes the Government has:
(a) failed to effectively deliver professional standards reform in the financial advice sector;
(b) been too slow to implement the findings of the Hayne Royal Commission;
(c) established and then shut down the failed Financial Adviser Standards and Ethics Authority;
(d) failed to adequately protect consumers; and
(e) caused uncertainty and unnecessary costs for thousands of financial advisers across Australia".