The PRESIDENT (Senator the Hon. Slade Brockman ) took the chair at 09:30, read prayers and made an acknowledgement of country.
That:
(a) a motion relating to the International Day for the Elimination of Violence Against Women may be moved immediately by a minister; and
(b) the time limit for the debate be 60 minutes, after which the question be put, and senators may speak to the motion for not more than 10 minutes each.
That the Senate:
(a) notes that—
(1) today, 25 November 2021, marks the UN's International Day for the Elimination of Violence Against Women, beginning the 16 days of activism against gender-based violence, and
(2) in Australia, on average, a woman is killed by a partner every 11 days, and one in five women has experienced sexual violence since the age of 15;
(b) commends the joint efforts made by governments, stakeholders and providers under the current National Plan to Reduce Violence against Women and their Children;
(c) acknowledges that the next national plan must be an ambitious blueprint to end family, domestic and sexual violence in all forms; and
(d) recognises that ending violence against women requires a national effort by all governments, workplaces, schools, communities and individuals.
Crimes Amendment (Remissions of Sentences) Bill 2021
The committee draws to the Commonwealth government's attention concerns raised during the course of this inquiry about the retrospective application of the bill. The committee notes, however, that on balance—
these concerns do not outweigh the clear advantages associated with ensuring greater certainty that sentencing decisions for federal offenders are not reduced or amended. This is particularly the case when these offenders continue to pose a serious risk to the community. Moreover, the committee notes that the bill would not authorise the removal of remissions granted to offenders who have already been released from custody.
The Senate divided. [10:47]
(Acting Deputy President—Senator Askew)
That this bill be now read a third time.
Social Security Legislation Amendment (Remote Engagement Program) Bill 2021
Consideration resumed of the motion:
That this bill be now read a second time.
At the end of the motion, add ", but the Senate:
(a) notes:
(i) that the proposed pilot remote engagement program is intended to replace the current remote employment program, the Community Development Program (CDP),
(ii) that the Government is the architect of the current failed CDP and the bill again delays long-overdue changes to this program,
(iii) concerns that this bill could entrench a welfare model, rather than job creation, economic development and self-determination, and
(iv) that this bill does not address fundamental issues in remote Australia such as housing and essential services; and
(b) calls on the Government to adopt Labor's policy of a remote employment program with real jobs, proper wages with full conditions, and meaningful community control".
Over the last decade the employment 'gap' between Indigenous and non-Indigenous Australians in remote Australia has grown. Poverty, and the social harms that arise from it, have increased.
… the Bill creates another work-for-the-dole framework and is a missed opportunity to trial genuinely alternative approaches based on creating jobs and promoting the right to fair and just conditions of work. The framework established by the Bill, predicated on the concept of conditional welfare, thus risks repeating many of the mistakes of the CDP.
At the end of the motion, add ", but the Senate notes that:
(a) this bill replaces the Community Development Program with a new framework piloting how employment services are delivered in remote communities, particularly communities with a high number of First Nations people;
(b) these pilot programs dishonour the Federal Government's commitment to formal partnerships and shared decision-making in the National Agreement on Closing the Gap as it is not clear how communities have been chosen to participate in the pilots or if the principles of free, prior, and informed consent were followed when working with these communities;
(c) people in these pilot programs will not be paid a living wage for work they are required to perform and they will not be given the industrial protections available to all working people;
(d) this bill is opposed by human rights organisations, Aboriginal community controlled organisations, and Aboriginal and Torres Strait Islander health services; and
(e) this bill does not address the underlying issue causing under-employment or unemployment in regional, remote, and very remote areas of the country; namely, the lack of economic and job opportunities".
SELECTION OF BILLS COMMITTEE
REPORT NO. 13 OF 2021
25 November 2021
MEMBERS OF THE COMMITTEE
Senator Dean Smith (Government Whip, Chair)
Senator Perin Davey (The Nationals Whip)
Senator Stirling Griff (Centre Alliance Whip)
Senator Pauline Hanson (Pauline Hanson's One Nation Whip)
Senator Nick McKim (Australian Greens Whip)
Senator Anne Urquhart (Opposition Whip)
Senator Raff Ciccone
Senator Katy Gallagher
Senator Jacqui Lambie
Senator the Hon James McGrath
Senator Rex Patrick
Senator the Hon Anne Ruston
Secretary: Tim Bryant Ph. 6277 3020
1. The committee met in private session on Wednesday, 24 November 2021 at 7.20 pm.
2. The committee recommends that—
(a) the provisions of the Financial Accountability Regime Bill 2021, Financial Sector Reform (Hayne Royal Commission Response No. 3) Bill 2021, Financial Services Compensation Scheme of Last Resort Levy Bill 2021 and Financial Services Compensation Scheme of Last Resort Levy (Collection) Bill 2021 bereferred immediately to the Economics Legislation Committee for inquiry and report by 15 February 2022;
(b) the provisions of the Migration Amendment (Protecting Migrant Workers) Bill 2021 bereferred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 15 February 2022 (see appendix 1 for a statement of reasons for referral);
(c) the provisions of the Migration Amendment (Strengthening the Character Test) Bill 2021 bereferred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 28 January 2022 (see appendix 2 for a statement of reasons for referral); and
(d) the Statute Law Amendment (Prescribed Forms) Bill 2021 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 11 February 2022 (see appendix 3 for a statement of reasons for referral).
3. The committee recommends that the following bills not be referred to committees:
4. The committee deferred consideration of the following bills to its next meeting:
5. The committee considered the following bills but was unable to reach agreement:
(Dean Smith)
Chair
25 November 2021
Appendix 1
SELECTION OF BILLS COMMITTEE
Proposal to refer a bill to a committee
Name of bill:
Migration Amendment (Protecting Migrant Workers) Bill 2021
Reasons for referral/principal issues for consideration:
Significant changes to migrant worker protections under the Migration Act, including strong concerns from a wide range of stakeholders.
Possible submissions or evidence from:
Unions, civil society, legal groups, migrant support groups, farmers, supermarkets, horticulture, and agriculture organisations, including Ai Group, AMES Australia, ACCI, Australian Fresh Produce Alliance, Fragomen Australia, Hammond Taylor, IARC Unions NSW, Immigration Solutions, Law Council of Australia, Migrant Worker Justice Initiative, Migrant Workers Centre, Migration Institute of Australia, NTEU, Professor Joanna Howe, Recruitment, Consulting and Staffing Association, Redfern Legal Centre, Retail Supply Chain Alliance, Settlement Council of Australia, Salvation Army, Uniting Church, United Workers Union, WEstJustice, Woolworths, Coles and Aldi.
Committee to which bill is to be referred:
Legal and Constitutional Affairs
Possible hearing date(s):
TBC
Possible reporting date:
Monday 15 February 2022
(signed)
A Urquhart
Whip Selection of Bills Committee member
SELECTION OF BILLS COMMITTEE
Proposal to refer a bill to a committee
Name of bill:
Migration Amendment (Protecting Migrant Workers) Bill 2021
Reasons for referral/principal issues for consideration:
To ensure the bill is consistent with recommendations of the Migrant Workers' Taskforce, which reported to the Minister for Small and Family Business, the Workplace, and Deregulation in 2019.
Possible submissions or evidence from:
Immigrant and migrant advocates, workers unions, recruitment industry, industry and sector peak bodies, legal experts.
Committee to which bill is to be referred:
SSC Education and Employment, or JSC Migration
Possible hearing date(s):
Inquiry to be conducted on the papers
Possible reporting date:
First sitting day of February 2022
(signed)
Nick McKim
Appendix 2
SELECTION OF BILLS COMMITTEE
Proposal to refer a bill to a committee
Name of bill:
Migration Amendment (Strengthening the Character Test) Bill 2021
Reasons for referral/principal issues for consideration:
The bill is materially different to the previous two iterations of the bill, both of which went to inquiry. It contains retrospectivity, engages human rights, and is possibly in breach of Australia's commitments to international obligations.
Possible submissions or evidence from:
Legal, human rights, and migration experts and stakeholders, e.g. Asylum Seeker Resource Centre, Human Rights Law Centre, Refugee Legal, Australian Human Rights Commission, Peter McMullin Centre on Statelessness, Refugee Council of Australia, Kaldor Centre for International Refugee Law, Kaldor Centre for International Refugee Law, and the Law Society of Australia.
Committee to which bill is to be referred:
Legal and Constitutional Affairs
Possible hearing date(s):
Non-sitting days in February
Possible reporting date:
(signed)
Nick McKim
SELECTION OF BILLS COMMITTEE
Proposal to refer a bill to a committee
Name of bill:
Migration Amendment (Strengthening The Character Test) Bill
Reasons for referral/principal issues for consideration:
The Bill has changed from the original version first introduced over three years ago. It now has significant implications for victims of domestic violence and needs adequate time for detailed consideration.
Possible submissions or evidence from:
Legal, civil society, refugee, asylum seekers, migrant support and domestic violence organisations.
Committee to which bill is to be referred:
Legal and Constitutional Affairs
Possible hearing date(s):
TBC
Possible reporting date: 15 February 2022
(signed)
A Urquhart
Whip/ Selection of Bills Committee member
Appendix 3
SELECTION OF BILLS COMMITTEE
Proposal to refer a bill to a committee
Name of bill:
Statute Law Amendment (Prescribed Forms) Bill 2021
Reasons for referral/principal issues for consideration:
While the EM states that the changes made by this bill are largely technical in nature, the bill would make changes to dozens of significant and often complex Acts. It is important to fully understand the impact of any changes made to those statutory regimes, whether intended or not, and an enquiry will enable those with particular expertise to provide submissions to the Committee about those impacts.
Possible submissions or evidence from:
Law Council of Australia
Other bodies with particular expertise in the various statutory regimes impacted by this bill.
Committee to which bill is to be referred:
Legal & Constitutional Affairs
Possible hearing date(s):
Given the technical nature of this bill, it is suggested that the inquiry be conducted on the papers. Any hearing dates, if required, to be determined by the committee.
Possible reporting date:
11 February 2022
(signed)
Senator Anne Urquhart
That the report be adopted.
(1) At the end of the motion, add "and the Autonomous Sanctions Amendment (Thematic Sanctions) Bill 2021 not be referred to a committee".
(2) At the end of the motion, add "and, in respect of the Religious Discrimination Bill 2021, the Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Amendment Bill 2021, the provisions of the bills be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 1 February 2022".
At the end of the motion, add: "and, in respect of the Religious Discrimination Bill 2021, the Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Amendment Bill 2021, the provisions of the bills be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 21 March 2022".
The Senate divided. [11:45]
(The President—Senator Brockman)
The Senate divided. [11:53]
(The President—Senator Brockman)
The Senate divided. [11:57]
(The President—Senator Brockman)
At the end of the motion, add:
"and, in respect of the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021, the provisions of the bill be referred immediately to the Economics Legislation Committee for inquiry and report by 24 March 2022".
The Senate divided. [12:05]
(The President—Senator Brockman)
At the end of the motion, add:
"and, in respect of the COVID-19 Vaccination Status (Prevention of Discrimination) Bill 2021, the bill be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 1 February 2022".
The Senate divided. [12:12]
(The President—Senator Brockman)
The Senate divided. [12:19]
(The President—Senator Brockman)
That the following matter be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 30 June 2022:
Missing and murdered First Nations women and children, with particular reference to:
a) The number of First Nations women and children who are missing and murdered;
b) The current and historical practices, including resources, to investigating the deaths and missing person reports of First Nations women and children in each jurisdiction compared to non-First Nations women and children;
c) The institutional legislation, policies and practices implemented in response to all forms of violence experienced by First Nations women and children;
d) The systemic causes of all forms of violence—including sexual violence—against First Nations women and children, including underlying social, economic, cultural, institutional and historical causes contributing to the ongoing violence and particular vulnerabilities of First Nations women and children;
e) The policies, practices and support services that have been effective in reducing violence and increasing safety of First Nations women and children, including self-determined strategies and initiatives;
f) The identification of concrete and effective actions that can be taken to remove systemic causes of violence and to increase the safety of First Nations women and children;
g) The ways in which missing and murdered First Nations women and children and their families can be honoured and commemorated; and
h) Any other related matters.
That general business notice of motion no. 1283, standing in the name of Senator McAllister, be withdrawn from the Notice Paper .
That today:
(a) government business orders of the day as shown on the Order of Business be considered from 12.15 pm;
(b) government business then be called on and considered till not later than 1.30 pm; and
(c) general business notice of motion no. 1281 be considered during general business.
National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021
That this bill be now read a third time.
Offshore Electricity Infrastructure Bill 2021
Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021
Offshore Electricity Infrastructure (Consequential Amendments) Bill 2021
That these bills be now read a third time.
Social Security Legislation Amendment (Remote Engagement Program) Bill 2021
Chaney said there was a "total carelessness shown for the hardship inflicted on remote Aboriginal people and the damage being done by this denial of the facts.
"In my view, this policy is a national disgrace. It is a reversion to the attitudes of the past.
"It's another assimilationist, bureaucratic, irrelevant approach that will inflict more hardship, hunger and dysfunction on Aboriginal people.
"It’s not community building, it’s the reverse. The more I see of it, the more I think we are reverting to the habits of the 1940s and 1950s."
Aboriginal people are tired of the endless cycle of poverty, punitive welfare and policy changes that just come out of the blue. In the 21st century it's simply not good enough to have the bureaucracy design yet another version of a failed program. People, young people in particular, need to be able to experience having a job and getting the skills and experience that that offers; otherwise, we are condemning future generations to a pathway of misery, a pathway of nothingness.
There is a role for parliamentary committees, certainly a role for the scrutiny committee, but it's not enough in my view and I think concerns have been rightly expressed right around the legal community in relation to the need for a greater level of independent oversight.
That the Senate take note of the answer given by the Minister for Women's Safety (Minister Ruston) to a question without notice asked by Senator McAllister relating to domestic and family violence.
That the Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 2) Regulations 2021, made under the Australian Charities and Not-for-profits Commission Act 2012 , be disallowed [F2021L00863].
Fred Hollows was well known for speaking out and demanding action from our political leaders. It's a key role of charities to advocate for those who don't have a voice. These laws limit the ability of charities to raise important issues and hold people in power to account. They have no place anywhere in the world, let alone Australia, where freedom of assembly and political participation, and basic human rights, are the cornerstone of our democratic society.
… charity is not just about helping people in poverty. It's about creating a country where poverty doesn't exist. That's why we need to be able to stand up for the people we work with.
These rules are designed to stop organisations like Anglicare Australia from speaking up for our communities and our country by punishing us—and shutting us down for arbitrary reasons.
They are not just an attack on charities. They are an attack on democracy.
… … …
We're also calling on the Government to withdraw these changes—and end these attacks for good.
Through the delegation of law-making powers—
policy decisions that affect the rights and obligations of individuals, business and industry are increasingly being made by the Executive without adequate parliamentary oversight or other forms of accountability.
The Senate divided. [16:04]
(The President—Senator Brockman)
That the Senate take note of the report.
Additional estimates 2020-21—
Foreign Affairs, Defence and Trade Legislation Committee—Additional information received between 23 June and 23 November 2021—Foreign Affairs and Trade portfolio.
Budget estimates 2021-22—
Foreign Affairs, Defence and Trade Legislation Committee—Additional information received between 13 July and 23 November 2021—
Defence portfolio.
Foreign Affairs and Trade portfolio.
Budget estimates 2021-22 (Supplementary)—
Foreign Affairs, Defence and Trade Legislation Committee—Hansard record of proceedings, documents presented to the committee and additional information.
Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021
That the Senate take note of the report.
Corporations Amendment (Improving Outcomes for Litigation Funding Participants) 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.
The Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021 (the Bill) will ensure that ordinary Australians who seek justice through the class actions system receive a fair and reasonable portion of the proceeds of successful class actions supported by a litigation funder.
Australia's class action regime and litigation funding regimes must provide fair and equitable outcomes for all Australians. Yet, all too often, the current system does not meet these benchmarks. The recent decision of the Victorian Supreme Court in Bolitho & Ors v Banksia Securities Limited is a stark reminder of the egregious conduct that can occur, when those who work in the legal system lose sight of the best interests of their clients. As the Victorian Supreme Court noted, such conduct corrupts the proper administration of justice.
The Government has long been concerned by the returns being made by litigation funders, at the expense of class members. In 2019, the Australian Law Reform Commission found that when litigation funders were involved in a class action, the median return to plaintiffs was 51 per cent. Conversely, when a funder was not involved, the median return was 85 per cent. Last year, the Parliamentary Joint Committee on Corporations and Financial Services concluded that in many cases, litigation funders appear to be making windfall profits that are disproportionate to the costs incurred and the risks undertaken in the proceedings.
These findings are echoed by judgments of the courts. Just this year, in the case of Whittenbury v Vocation Limited (in liquidation) , together the lawyers and funders received nearly 50 per cent of the settlement sum. Such a state of affairs runs counter to the compensatory nature of the class actions system, which is primarily designed to vindicate the rights of class members.
This Bill achieves a number of key objectives. First, the Bill requires claimants to agree in writing to be members of scheme and to be bound by the scheme's constitution. This requirement for active consent will incentivise book building by litigation funders and ensure that claimants who do not want to participate in a class action do not need to actively opt-out.
Second, the Bill requires a court to approve or vary the proposed distribution of claim proceeds to ensure that members of a class action litigation funding scheme receive a fair and reasonable share. In assessing this, the Bill will establish a rebuttable presumption that a distribution would not meet this statutory threshold if more than 30 per cent of the claim proceeds, in total, is to be paid or distributed to non-members of the scheme, such as funders or lawyers. It will also require the court to consider a number of factors including the funder's commercial return compared to the reasonable costs the funder incurred for the proceedings. This provides a clear signal that the community expects that the primary purpose of the class action regime is to vindicate the rights of ordinary Australians. At the same time, the flexibility of the court to do justice in a particular matter will be preserved.
Third, to assist courts in navigating the complexities of legal costs and funder commissions, the Bill ensures that courts consider the reports of independent experts and the representations of contradictors representing the interests of scheme members, when appointed. This Bill provides that the costs of these experts are borne by funders unless the court orders otherwise.
Fourth, this Bill will reduce the use of common fund orders as a way for funders to expand their portion of the settlement by extending their commission rate to all members of the class, including those that have not agreed to sign a funding agreement. The Bill does not bar the court from making an order to share the costs of a proceeding amongst all class members who benefit from the action.
The use of common fund orders by courts as a mechanism to amend the funding commission rate has now been superseded by the Bill's express power to vary the funding agreement. Jointly, the proposed Bill and current court powers provide a solution to the free-rider problem but at the same time preventing windfall profits to litigation funders.
Finally, the Bill seeks to implement a consistent approach to class actions across all jurisdictions. This will maximise protection for class members across Australia. The Bill adopts an expansive approach seeking to extend protection to class action litigation funding schemes for class actions in any Australian court. This avoids the risk of 'forum shopping' by funders filing in courts which do not have the same level of protection for class members.
This Bill and its reforms will ensure Australia's class actions system operates as originally intended whilst ensuring the viability of litigation funding agreements that provide ordinary Australians with access to justice.
The Legislative and Governance Forum on Corporations was consulted in relation to the Bill as required under the Corporations Agreement 2002 .
Full details of the measure are contained in the Explanatory Memorandum.
That the Senate—
(a) notes:
(i) the latest Australian Bureau of Statistics wages data show that real wages went backwards by $700 over the last year,
(ii) the 2021-22 Budget reveals real wages will go backwards over the next four years, and
(iii) the cost of housing, petrol, childcare and healthcare continue to rise, putting additional pressure on Australians' household budgets; and
(b) agrees that the Prime Minister is out of touch with the reality that Australians face every day due to his Government's mismanagement of the economy over eight long years in government, given that real wages are going backwards while costs of living continue to rise.
Prime Minister
Religious Discrimination Bill 2021