On behalf of the Chair of Parliamentary Joint Committee on Human Rights, I present Human rights scrutiny report: report 6 of 2022 and I move:
That consideration of the report be listed on the Notice Paper as an order of the day.
Question agreed to.
I move:
That these bills may proceed without formalities, may be taken together and be now read a first time.
Question agreed to.
Bills read a first time.
I move:
That these bills be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
Leave granted.
The speech read as follows—
APPROPRIATION BILL (NO. 1) 2022-2023
The Appropriation Bill (No. 1) 2022-2023, together with the Appropriation Bill (No. 2) 2022-2023 and the Appropriation (Parliamentary Departments) Bill (No. 1) 2022-2023, form the principal Bills underpinning the Government's October 2022 Budget.
It is the first Labor Budget in nearly a decade, a budget that builds a better future, and a budget I and all who sit on this side of the chamber are extremely proud of.
It is a responsible budget that delivers on the Albanese Labor Government's election commitments, delivering targeted cost-of-living relief and investing in Australia's future.
The Appropriation Bill (No. 1) 2022-2023 seeks approval for appropriations from the Consolidated Revenue Fund of approximately $10 billion. This represents funding for endorsed March 2022 Budget measures, 2022 election commitments, and other decisions taken by the Government in the October 2022 Budget.
The Supply Act (No. 1) 2022-2023 contains broadly five-twelfths of the estimated 2022-23 annual appropriations which are required to support the ongoing business of government. The balance of supply appropriations representing broadly seven-twelfths of the 2022-23 annual appropriations is included in the Supply Bill (No. 3) 2022-2023, which is part of the additional 2022-23 Supply Bills that were introduced to the Parliament concurrently with the Budget Bills on 25 October 2022.
Together with the Supply Act (No. 1) 2022-2023 and the Supply Bill (No. 3) 2022-2023 currently before the Parliament, this Bill presents a complete view of the proposed annual appropriations for the ordinary services of government for the 2022-23 financial year.
This Bill provides appropriations that support the following significant measures in the October 2022 Budget.
The Department of Health and Aged Care will receive approximately $3.4 billion across a large number of programs, including around $810 million to support older Australians and the aged care sector with managing the impacts of the COVID-19 pandemic and around $314 million for the expansion of eligibility for a fourth dose of COVID-19 vaccines to additional people.
Services Australia will receive approximately $1.1 billion, of which over $900 million will be provided to support Services Australia's role in emergency responses. Services Australia will also support other lead government agencies to deliver the Government's election commitments such as Abolishing the Cashless Debit Card, Cheaper Child Care, and Fixing the Aged Care Crisis.
The Department of Industry, Science and Resources will receive approximately $657 million, which includes $344.6 million for the Modern Manufacturing Initiative and the Supply Chain Resilience Initiative. Funding is also provided to support Australian industry to develop domestic manufacturing capabilities and upskill the manufacturing sector workforce, including through supporting local industry.
The Department of Climate Change, Energy, the Environment and Water will receive approximately $600 million. The appropriation includes funding for programs such as: Saving Native Species, to support actions to slow the rate of environmental and native species decline; the Driving the Nation initiative to establish the Driving the Nation Fund to invest in cheaper, cleaner transport; and Increasing Security for the Diesel Exhaust Fluid Market. Funding is also provided for the Sustainable Rural Water Use program, Clean Hydrogen Hubs Investment and activities that strengthen Australia's capabilities and presence within Antarctica and Support Australia's scientific leadership and international collaboration amongst Antarctic nations.
The Bill also contains an Advance to the Finance Minister (AFM) provision of $2.4 billion to provide the Government with the capacity to allocate additional appropriations for urgent and unforeseen expenditure: $2 billion of the AFM provision is set aside for COVID-19 and natural disaster or other national emergency response related expenditure and $400 million for other general urgent and unforeseen expenditure.
These AFM provisions are similar to those currently included in the Supply Act (No. 1) 2022-2023, except to expand the current provisions that are statutorily limited to COVID-19 related expenditure to also support natural disaster and other national emergency response related expenditure. The expanded AFM provisions would enable the Government to make funding available to events, such as flood and fire, in a timely manner, should the circumstances require. Once the Bill commences, the AFM provisions in the Supply Act (No. 1) 2022-2023 would no longer be available for allocation.
In light of the size of the AFM, the strong accountability and transparency arrangements that have been in place March 2020 will be continued, including a regular media release in weeks when AFMs are issued, which reports and reconciles the use of the AFM provision.
Details of the proposed expenditure are set out in the Schedule to the Bill, the Explanatory Memorandum, and the updated 2022-23 Portfolio Budget Statements tabled in the Parliament in relation to the October 2022 Budget.
I commend this Bill to the chamber.
APPROPRIATION BILL (NO. 2) 2022-2023
The Appropriation Bill (No. 2) 2022-2023, together with the Appropriation Bill (No. 1) 2022-2023 and the Appropriation (Parliamentary Departments) Bill (No. 1) 2022-2023, are the Budget Bills for the 2022-23 financial year, incorporating the decisions outlined in the 2022-23 October budget.
It is the first Labor Budget in nearly a decade, a budget that builds a better future, and a budget I and all who sit on this side of the chamber are extremely proud of.
It is a responsible budget that delivers on the Albanese Labor Government's election commitments, delivering targeted cost-of-living relief and investing in Australia's future.
The Appropriation Bill (No. 2) 2022-2023 seeks approval for appropriations from the Consolidated Revenue Fund of approximately $3.6 billion. This represents funding for endorsed March 2022 Budget measures, 2022 election commitments, and other decisions taken by the Government in the October 2022 Budget.
The Supply Act (No. 2) 2022-2023 contains broadly five-twelfths of the estimated 2022-23 annual appropriations which are required to support services that are not the ordinary annual services of government, such as capital works and services; payments to or for states, territories and local government authorities; equity injections; and funding for new administered outcomes not previously endorsed by the Parliament. The balance of supply appropriations representing broadly seven-twelfths of the 2022-23 annual appropriations is included in the Supply Bill (No. 4) 2022-2023, which is part of the additional 2022-23 Supply Bills that were introduced to the Parliament concurrently with the Budget Bills on 25 October 2022.
Together with the Supply Act (No. 2) 2022-2023 and the Supply Bill (No. 4) 2022-2023 currently before the Parliament, this Bill presents a complete view of the proposed annual appropriations for services that are not the ordinary annual services of government for the 2022-23 financial year.
This Bill provides appropriations that support the following significant items in the October 2022 Budget.
The Department of Health and Aged Care will receive approximately $1.1 billion, of which approximately $770 million is provided for additional COVID-19 purchases such as vaccines, treatments and personal protective equipment.
The Department of Infrastructure, Transport, Regional Development, Communications and the Arts will receive $791.5 million. This includes $495 million in equity for Airservices Australia as part of the COVID-19 response package to continue to provide critical air navigation, air traffic control, aviation fire and rescue services across Australia and $328 million in equity to upgrade the National Broadband Network to deliver fibre-ready access to a further 1.5 million premises by late 2025.
The Department of Climate Change, Energy, the Environment and Water will receive approximately $538 million which includes funding of $500 million for the Rewiring the Nation measure to expand and modernise Australia's electricity grids.
The Bill also contains an Advance to the Finance Minister (AFM) provision of $3.6 billion to provide the Government with the capacity to allocate additional appropriations for urgent and unforeseen expenditure: $3 billion of the AFM provision is set aside for COVID-19 and natural disaster or other national emergency response related expenditure and $600 million for other general urgent and unforeseen expenditure.
These AFM provisions are similar to those currently included in the Supply Act (No. 2) 2022-2023, except to expand the current provisions that are statutorily limited to COVID-19 related expenditure to also support natural disaster and other national emergency response related expenditure. This expansion has been proposed in light of the recent flood events and would enable the Government to make funding available for responses to events such as flood and fire in a timely manner, should the circumstances require. Once the Bill commences, the AFM provisions in the Supply Act (No. 2) 2022-2023 would no longer be available for allocation.
In light of the size of the AFM, the strong accountability and transparency arrangements that have been in place since March 2020 will be continued, including a regular media release in weeks when AFMs are issued, which reports and reconciles the use of the AFM provision.
Details of the proposed expenditure are set out in the Schedules to the Bill, the Explanatory Memorandum, and the updated 2022-23 Portfolio Budget Statements tabled in the Parliament in relation to the October 2022 Budget.
I commend this Bill to the chamber.
APPROPRIATION (PARLIAMENTARY DEPARTMENTS) BILL (NO. 1) 2022-2023
The Appropriation (Parliamentary Departments) Bill (No. 1) 2022-2023 provides appropriations for new decisions taken by Government in the October 2022 Budget for the operations of the Parliamentary Departments.
This Bill seeks approval for appropriations from the Consolidated Revenue Fund of approximately $19.2 million. The Supply (Parliamentary Departments) Act (No. 1) 2022-2023 contains broadly five-twelfths of the estimated 2022-23 annual appropriations which are required to support the operations of the Parliamentary Departments. The balance of supply appropriations representing broadly seven-twelfths of the 2022-23 annual appropriations is included in the Supply (Parliamentary Departments) Bill (No. 2) 2022-2023, which is part of the additional 2022-23 Supply Bills that were introduced to the Parliament concurrently with the Budget Bills on 25 October 2022.
Together with the Supply (Parliamentary Departments) Act (No. 1) 2022-2023 and the Supply (Parliamentary Departments) Bill (No. 2) 2022-2023 currently before the Parliament, this Bill presents a complete view of the proposed annual appropriations for the expenditure of the Parliamentary Departments for the financial year of 2022-23.
This Bill proposes appropriations for the Department of Parliamentary Services of approximately $19.2 million, including $4.2 million to support its operations, including to increase the capacity of the Parliamentary Library to support parliamentarians with advice and research, and to increase Hansard and broadcasting services staffing levels to support increased parliamentary committee activity.
Details of the proposed expenditure are set out in the Schedule to the Bill, the Explanatory Memorandum, and the updated 2022-23 Portfolio Budget Statements tabled in the Parliament in relation to the October 2022 Budget.
I commend this Bill to the chamber.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
URQUHART (—) (): by leave—I move:
That leave of absence be granted to Senator Brown for today, for personal reasons.
Question agreed to.
by leave—I move:
That leave of absence be granted to Senator Hume for 25 November, for personal reasons.
Question agreed to.
The question that we're currently considering is that amendments (1) and (2) on sheet 1745, revised, , moved by Senator David Pocock, be agreed to.
One further question came to me as I was riding my bike to parliament this morning: are electric bicycles covered under this legislation? It would seem to me that, if you're offering fringe benefits tax exemptions, that would be a sensible thing. A lot of people are choosing to purchase an electric bike rather than a second car, and it's something that we really should be encouraging. Certainly pedal-powered—human-powered—bicycles are the ultimate zero emissions vehicles. Electric bicycles, of course, if they are powered by renewable energy, similarly, are zero emissions vehicles.
I do appreciate the question, Senator Rice. You're right that there are a range of ways in which we can reduce transport emissions, and electric bicycles are one of many options that would assist us in reducing emissions from the transport sector. I'll seek advice from officials about the applicability of the measure to electric bicycles, but, my baseline observation is that the measure seeks to adjust an existing set of arrangements that apply to the way that fringe benefits tax acts when an employer makes a car available for the private use of an employee. The answer to your question is contingent on whether those existing arrangements apply at the moment to electric bicycles, and I will seek some advice and come back to you shortly.
I understand there are a number of Australian companies converting internal combustion engine vehicles to become EVs for fleets and for the mining sector. I want to confirm that they will be able to access this FBT discount.
Thanks very much, Senator Pocock. I appreciate your interest in this area. Essentially, the eligibility of a vehicle is determined by the eligibility criteria. This measure applies only to cars, so it would be dependent on the circumstances—principally on whether or not the vehicle that was thus created was a car for the purposes of fringe benefits tax. As I understand it, there are a set of thresholds that define 'a car' and distinguish it from a more heavy-purpose vehicle and I understand that, among those criteria, is carrying capacity of one tonne. So it would be dependent on the specific vehicle being manufactured or produced.
But, if they are road vehicles, they will be covered—a vehicle like a HiLux and those sorts of vehicles?
It depends on whether it meets the definition of 'a car' for the purposes of fringe benefits tax. It would also, of course, need to be under the luxury car tax threshold, which is one of the other criteria that applies to eligibility for this measure.
I am interested in whether we have a response to my question. If electric bicycles aren't covered under this legislation, would the government favourably consider amendments to include electric bicycles to also be available under this fringe benefits tax measure?
I'm advised that, because these arrangements would not ordinarily apply to an electric bicycle, we wouldn't expect that the measure before the Senate today would provide benefits for people who have an electric bicycle. But in answer to your broader question about whether the government is interested in the contribution that electric bicycles might make to reducing transport emissions, that would be something we would contemplate as part of the broader electric vehicles strategy. You'll know, I think, that the government has commenced consultation on that. We've received many hundreds of submissions and we're working through those at the moment.
The CHAIR: The question before the chair is that amendments (1) and (2) on sheet 1745, revised, as moved by Senator David Pocock, be agreed to.
I move:
That this bill be now read a third time.
The question is that the Treasury Laws Amendment (Electric Car Discount) Bill 2022, as moved by Senator McAllister, be read a third time.
I rise to speak to the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022, and to inform the chamber that the coalition parties will be supporting the government's efforts in this regard. The federal coalition supports the passage of the bill.
We support this legislation because it will amend the Biosecurity Act 2015 with measures that will enhance the operation of Australia's national biosecurity framework. It will strengthen the management of risks across maritime and aviation pathways, improve the efficiency of the act and increase a range of civil and criminal penalties for breaches of biosecurity law. Also, the passage of this bill will address recommendations made by the Inspector-General of Biosecurity in his review of the Ruby Princess incident and the New South Wales special commission of inquiry.
Significantly, this bill is similar to legislation introduced last year by the federal coalition. It's absolutely fantastic to see the Labor Party, particularly in an area of policy where they don't have a lot of strength, where stakeholders traditionally don't put their faith and store in a Labor government—that being the policy area of agriculture—doing the right thing and adopting the coalition legislation that lapsed as a result of the election, and re-presenting it here to the Senate.
With improvements!
You know, Senator Watt, as you exit the chamber, it's great to be able to stand up myself, a former agriculture minister, and see we are doing the right thing as a chamber—
Senator McKenzie, Senator Ciccone is on his feet with a point of order.
I don't mean to interrupt the good senator, but it is against the standing orders to reflect on senators walking out of the chamber.
The ACTING DEPUTY PRES IDENT: Keep that in mind, Senator McKenzie. You have the call.
I'm going to call out good behaviour when I see it. Every single time the Labor Party—and there have been a few instances of late—chooses to adopt coalition policy positions and to put forward in this place legislation that we had drafted or that had lapsed in the last parliament, we're very happy they support that and know it's going to be good for our country. There's no other area that we can invest more in to protect our future prosperity and sustainability, not just as a nation but particularly for rural and regional Australians, than biosecurity itself.
The bill will increase protection from diseases and pests by implementing measures that manage biosecurity risks from travellers, including responding to the threat of foot-and-mouth disease being introduced into Australia through the footwear and clothing of travellers.
If the federal Labor Party had been more robust in supporting this legislation when it had the coalition's name on it, it would've been a lot easier for the now agriculture minister to direct travellers returning from Bali in June, July, August this year, with the threat of foot-and-mouth disease, specifically that they had to walk through those foot baths et cetera and a whole raft of other measures to increase our biosecurity and also decrease the risk of such a disease getting into Australia. Better late than never, so well done, Minister Watt, on finally getting this before the Senate. While this is welcome, it is worth recognising that it was the federal coalition who was calling for foot mats to be installed—and the NFF, I might say—at international airports once foot-and-mouth was detected in Bali, given the increased risk from travellers, and it was Minister Watt and the federal Labor Party who were standing up saying that wasn't needed and that people coming back from Bali were in thongs, so they didn't want to go through the foot baths, because it was going to hurt their feet.
Rubbish!
Well, I can tell you, I'm happy for those senators—
Senators, a reminder of the need to be orderly. Interjections are disorderly.
Thank you, Madam Chair, for your protection. For those senators who can't recall that classic interview of the minister—I think it was on Sky, but I'll search my records—I will send it to Senator McCarthy, Senator Ciccone any other government senator who doesn't believe that the agriculture minister was more concerned about Australian travellers coming back from Bali wearing thongs and what these chemicals may do to their precious feet than he was about protecting Australia's livestock industry from foot-and-mouth disease. But I'll leave that for another day. I will return to the bill before us.
It's good that they're now in place. But this government flip-flopped about whether to install the mats in the first place, and by the time they did it was way too late. In the weeks that it took for the government to make up their minds and take action, over 79,000 international travellers arrived in Australia from Indonesia, 93.4 per cent of those from Bali, without having to disinfect their shoes, without having to go through a raft of measures to provide security to Australian producers and indeed the future prosperity of this trade. One of our great gold stars internationally is that we are foot-and-mouth disease free, which means that our primary produce can require a higher price in international markets. That's a good thing, but that works only as long as we keep foot-and-mouth disease out. Sorry if I'm not going to share the great offence of the Labor Party that people's precious little feet are being impacted by measures that will actually protect this great industry and our future trade prospects.
In a positive move, this bill will strengthen preapproval reporting by ensuring that prearrival reporting requirements of the Biosecurity Act will be expanded to ensure that accurate and up-to-date information is available to assess biosecurity risk, including the human health risk of arriving vessels and aircraft. Penalties for operators and people in charge of aircraft and vessels who do not comply with these requirements will be expanded and strengthened. The importance of having a strong biosecurity system should never be underestimated. In 2020 the value of Australia's biosecurity system was estimated to be $314 billion over the next five decades, so it's absolutely essential that compliance with our national biosecurity laws and frameworks is always maintained and that we never become complacent about this.
It's not sexy. You won't be finding Victorians in marginal seats this weekend casting their votes for or against Premier Daniel Andrews' re-election—I hope not, Senator Ciccone, and that Victorians will cast their vote for a positive future in my home state of Victoria. But this won't be one of the topics that they think about, because it is out of sight, out of mind. But it is critical for our future economic prosperity that we as legislators keep our minds and eyes focused on keeping this framework as strong and robust as possible.
It's absolutely essential that compliance with our national biosecurity laws and framework is always maintained and that the penalties in place reflect the seriousness of the risk. If they're going to destroy people's lives and livelihoods and future prosperity, we need to throw the book at these people and not just the individual travellers who are breaching the framework but the operators that are responsible for ensuring that travellers are fully informed of the risk and are fully informed of their responsibility on their return or on their entry to our country. Importantly, this bill will increase the penalties for those who do the wrong thing. People who put at risk our biosecurity system by failing to comply with these requirements will face civil penalties of up to 120 penalty units or $26,640. That's a few trips to Bali, if you get it wrong.
A lot of thongs!
A lot of thongs, so please fill out—
A lot of washing too.
Yes. You're going to be hit with a massive fine if you don't take our biosecurity framework as seriously as we do, and that's a good thing.
Those who deliberately conceal risk goods will face stiffer penalties of up to 5,000 bucks, so when you tick the card coming back into Australia and answer the question about having any meat products or animal products in your luggage, if you've stuffed the meat pie or the Hungary Jack's burger in your carry-on luggage, that's concealing meat products. That's going to be a very, very, very expensive whopper with cheese. It's going to cost you $5,000, and so it should because this is important stuff. Those people who aren't linked to rural and regional Australia and don't understand how important the livestock industry is to our national economy and particularly to local communities don't realise what they're doing. I hope that operators of vessels and aircraft will make the risk very clear to travellers if they think: 'Oh well, it's just a ham sandwich that I didn't finish. I'll save that for the bus trip back to Melbourne, the SkyBus because the Labor Party hasn't built our airport to CBD rail yet.' They're going to have to get on that SkyBus, and they think they'll save the ham sandwich for then. Don't—declare it because, again, that will a very expensive sandwich. For operators the increased penalties are up to $222,000 for an individual and up to $1.1 million for corporate bodies.
The remaining measures in the bill will simplify the process for making decisions, identifying prohibited, conditionally non-prohibited and suspended goods, or granting permits based on risk assessment. The bill will allow the agriculture minister and the health minister to authorise expenditure on biosecurity related measures to increase efficiency and allow more transparency of such expenditure. More effective sharing of information with government agencies and other bodies will be secured whilst ensuring necessary confidentiality. It will also improve the operation and provisions relating to approved arrangements and compensation.
Overall, these are sensible measures that the federal coalition will be supporting. Australia's biosecurity system is a crucial pillar in our national defence, helping us to prepare for, protect against and respond to risks to our environment, economy and way of life. Our nation has enjoyed a reputation for clean, healthy and disease-free agricultural production systems through our natural advantage of geographic isolation. This is also giving our producers an edge in a very competitive international environment, and this rock-solid reputation is not something we should ever put at risk. We need a strong biosecurity system because in 2020 Australia's environmental assets were valued at a staggering $5.7 trillion over the next five decades, and they cannot be replaced. We are a unique nation, a continent with a unique flora and fauna heritage that is completely at risk if we do not keep pest and disease out. We also need to ensure that we protect our agricultural production, which is projected to reach $82 billion in 2022-23 and supports 1.6 million Australians in work. Those 1.6 million Australians can thank our fabulous agriculture industry for their job. The success and future prosperity of that industry is premised on keeping pests and disease out in an increasingly competitive global market.
Before COVID, tourism contributed $50 billion to our GDP. There are a lot of planes and a lot of vessels bringing people to our shore—all of them representing a risk to our biosecurity framework. It's important to point this out: the health of all these sectors relies on a strong, robust biosecurity system. The coalition is very, very proud of our track record when we were in government, because we made it a priority. In 2023 we made more than $1 billion available for biosecurity and export programs—an increase of 69 per cent from 2014-15. In government, we also increased fines for people breaking biosecurity laws. I was very, very happy as the minister to hand out a few of those to ensure that people who did the wrong thing were fined appropriately and are unable to return to our country within certain time frames for doing the wrong thing—for not treating our nation with the respect that it deserves.
Given the increased risks at our border with a major foot-and-mouth disease outbreak in Indonesia and the threat of varroa mite and lumpy skin disease, the federal coalition will always lend our support to outcomes that will strengthen our biosecurity system because we're a world leader. We commend the bill to the Senate.
(Quorum formed)
That was an unusual calling for a quorum. Anyway, Senator, you managed to disrupt a few spillover estimates sessions.
I'm on my feet on behalf of the Australian Greens to support the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022. I must say I nearly did a double take listening to Senator McKenzie talk about the importance of Australia's environmental assets, their trillions of dollars worth of value and how we have to do everything to protect our Australian environmental assets. Well, you won't get any disagreement from the Australian Greens on that very important point. But I do note that our biosecurity risks are directly correlated to our changing climate, and no-one in this country has done more than the National Party to ruin a decade of action on climate. I would bring the Nationals' attention back to that specific point. If they actually care about strengthening our biosecurity, they would both act on mitigating emissions, in line with at least the Paris protocol and, of course, put in place a number of adaptation measures.
I also note that the Australian Greens are very aware that Senator McKenzie said that, under her government, a billion dollars was made available for biosecurity arrangements. I asked at estimates last week roughly how much money was spent on overall biosecurity expenditure, and the department said, 'Around a couple of hundred million dollars a year, Senator.' When we drilled down into how much is actually spent on environmental risks, in other words, biosecurity risks specific to the environment—for example, to threatened species—we found that there's a fund for $800,000. The rest of that funding is pretty much targeted at industry. So there's a big imbalance there that we've got to deal with, because, yes, it's important to look after our industry—and I agree with what Senator McKenzie said about our agricultural sector and our exports—but we've also got to look after our environment. So I would draw the senator's attention to that.
We support the bill today; however, unlike the Nationals—and I heard nothing at all from their contribution—or the LNP, and presumably the Labor Party, we have some significant problems with this legislation. If I had my way, we would have been putting up substantive amendments today to deal with some issues in this legislation in committee. I'm happy to mention that we brought this up with Mr Littleproud's office, and I brought this up with my colleagues across the chamber. I refer senators to pages 49 to 55 of Scrutiny Digest 7 of 2022, which draws to the attention of the Senate the appropriateness of exempting instruments made under proposed section 196A, proposed section 196B and proposed section 393B from the usual parliamentary disallowance process and of including no-invalidity clauses at proposed section 196A and 393B.
In other words, to put it simply, through this bill, this chamber, this Commonwealth parliament, is walking away from disallowing instruments. It's actually insulting that the agriculture minister somehow feels that we can't do our job. I think all senators would agree that none of us should be supporting measures to reduce the power of the Senate to scrutinise ministers and departments. That's our job. That is why we're here. It is why we're elected. It is bread-and-butter, plain vanilla work for us. Yet, while this bill is very important and we support what's in it, it shouldn't be beyond the scrutiny of this chamber. I will give you a little bit more detail on that. The Scrutiny Digest 7 of 2022states:
In Scrutiny Digest 6 of 2022 the committee requested the minister's advice as to:
I won't go through the details, because 10 minutes is not enough time in which to do so, but the minister responded in relation to the no-invalidity clauses that that kind of power was necessary. He advised that the intended section 196A and 393B determinations would be made in a consultative manner in all but exceptional circumstances. He talked about biosecurity threats being urgent and emerging and about the need to respond immediately.
Then, in terms of exemptions from disallowance, the minister considered that exemptions from the disallowance process within the bill were appropriate and he did not propose to amend the bill to remove the exemptions—in other words, to pass them but make them disallowable in case the Senate wanted to scrutinise those. He basically said that they are decisions that are scientific and technical in nature, are critical to the effective management of biosecurity risks and may enable emergency action to manage a threat or harm from a biosecurity risk.
Since when has this chamber and our committee process not been up to scratch in terms of dealing with legislation, where we have to make decisions on legislation that is scientific and technical in nature, which we get nearly every day in this place? Really? How did you guys miss this? Why weren't you concerned about this?
We are.
Well, I'm glad you are. But I'll tell you what: Mr Littleproud wasn't concerned about it, nor were some of your colleagues across the chamber.
The minister gave a couple of other points. He noted that determinations would be made on the basis of expert technical and scientific assessments that determine whether a particular pest or disease poses an unacceptable level of biosecurity risk and he considered that subjecting these determinations to the disallowance process would have the potential to jeopardise the effectiveness of decision-making and risk management processes. Again, we get that every day. Just about every piece of legislation we've passed in the last couple of days has had technical matters and scientific advice in it.
He noted that there were some safeguards in the bill. He also noted that disallowance would be inappropriate because it could generate uncertainty. In other words, having the Senate and the Commonwealth parliament scrutinise regulations could create uncertainty. Well, of course it could, but, once again, it's our job to do this. It is bread-and-butter work for us as senators. He gave more information there. He considered that a 15-sitting-day disallowance period would, among other things, give rise to considerable uncertainty around business requirements, as disallowance would take effect immediately upon the passing of the motion. Now, that's a little bit misleading; that would be the passing of the motion to actually disallow, if it were disallowed by the Senate. When disallowances are tabled in this place, they're effective immediately.
This is perhaps an interesting question for some senators: does anyone know how many of pieces of regulation came before the Senate in the years from 2010 to 2019 to be disallowed? Thousands. How many were actually disallowed out of the thousands that were brought before the Senate? The number is 17—and I know that, for a specific couple of those, there was very good reason for it. So, out of the thousands of disallowable instruments that have come before this chamber in the last decade, only 17 were disallowed, yet the minister feels that's going to create uncertainty in relation to this legislation.
I want to bring senators' attention to this. I don't have time to go into it, but, in responding to the minister's response, the Scrutiny of Bills Committee made its view really clear. The committee reiterated:
Simply stating that a matter is technically complex, or has significant policy implications, is not an adequate justification for removing democratic oversight over a law of the Commonwealth—
or for reducing the scrutiny of the Commonwealth parliament. It is not clear to the committee from the minister's explanation why the minister considers it is appropriate to exempt an instrument from disallowance merely because considerations that go into making that instrument are scientific or technical, and it gives a lot of examples of other instruments that we've had before the Senate about which no minister has raised these issues.
He also goes on to say that, in relation to the minister's advice, allowing the usual disallowance process to apply to instruments made under the proposed sections 196A and 196B and 393B would create an unacceptable level of uncertainty. The committee acknowledges that, yes, there's some uncertainty, but this is our lawmaking system; this is how we make laws in this country.
I think I've said enough on this. As I mentioned, if we'd had support from across the chamber, we would have moved a substantive amendment on this. But I just want to get on record the Greens' concerns that, when we so easily walk away from our role and our scrutiny of critical legislation, this is a slippery slope for us as a chamber and as a Commonwealth parliament. We support what's in this, but we support our right to have a period of time to do more work on it and to seek commitment from stakeholders. And let's be honest, we're under a lot of pressure to pass legislation this week and next week. We haven't had a lot of time to seek and consult on the back on this. It probably would have been perfectly fine to have passed this and had them as disallowable instruments, and then they would have immediately gone into law, and it's very unlikely they would have been disallowed because I think we all agree we need better biosecurity laws. The Greens have been very supportive of the current inquiry into biosecurity threats. We lobbied to get varroa mite included into that ongoing inquiry, which I'm part of in the rural and regional affairs committee. We absolutely support the need for better biosecurity laws, but we do not support reducing the power of the Senate. That's what we are. We are senators. This is our job, and I want to get that on record today.
At the outset, I'll say that I do support the bill, and that is certainly the opposition's position. However, I also support everything that Senator Whish-Wilson just said in relation to the scrutiny process. This is an issue which is going to be progressed in some form over the life of this parliament. All senators in this place need to closely reflect upon it now, because there will become a time when these matters in relation to biosecurity legislation—indeed, any other legislation that exempts instruments from a disallowance process—are going to have to be considered by each and every senator in this place. Senator Whish-Wilson is absolutely correct: this chamber has a scrutiny roll. That's part of our function in Australia's parliamentary democracy, and I'm deeply concerned at the systemic nature in which instruments are put forward through various pieces of legislation which are not subject to the disallowance process.
For those who may be listening to this debate, I'll tease out the importance of this issue. We have a piece of legislation before this place, and we'll all vote on that piece of legislation. And that piece of legislation will then give the executive, the ministers, the ability to make instruments and issue delegated legislation. That delegated legislation can have a material impact on the freedoms and lives of people in our society. There's a process called a disallowance process, which means each piece of that delegated legislation is scrutinised by a committee of this place, called the Committee for the Scrutiny of Delegated Legislation, and an assessment is made as to whether or not it's constitutional, as to whether or not it falls within the powers of the legislation under which it was made, as to whether or not sufficient consultation was made with all relevant stakeholders, as to whether or not it's clear on the face of it—or if it's uncertain. That scrutiny process is extraordinarily important. In my experience, in the last parliament and this parliament, serving on both of the scrutiny committees, that process leads to better law.
We have all seen firsthand how, when that scrutiny process is mobilised, instruments are amended, additional consultation may be made and instruments can be withdrawn because of scrutiny concerns which are raised by this chamber. So the arguments in relation to this matter—the minister and the department are making arguments that the instruments under this act should not be subject to disallowance process—are not persuasive. Those arguments actually undercut our system of parliament and our democracy, because it is our role as senators to scrutinise the laws which are made. When this chamber doesn't have the power to initiate that disallowance process, then that scrutiny role is undercut. As Senator Whish-Wilson said, it's very, very rare for instruments to be subject to disallowance motions and to actually be disallowed for the very reason that the scrutiny committee engages in a process with the relevant minister and with the department to make sure the instrument complies with the scrutiny principles. So it is very rare for an instrument to be disallowed.
I've said it previously in this chamber and I'll say it for as long as I'm in this chamber: the instruments which are made by ministers, made by departments, under various pieces of legislation should be subject to disallowance processes. I agree with Senator Whish-Wilson that the argument that something is particularly scientific or technical, and therefore senators in this place don't have the capacity to assess it, doesn't wash. It's not persuasive. All of us consider legislation every day which is based on a whole range of different evidence, including scientific and technical evidence, commercial evidence and social evidence. That's our job. There is a latent paternalism in the concept that 'we can't let it go to the senators because we might not get the result we want'. From my perspective, that is simply inappropriate, and it's up to us as senators to push back on that.
I would like to have seen this be one occasion when those arguments could have been further prosecuted, but there are time constraints. I think it is important that the scrutiny committees act with a degree of unanimity in pushing these matters forward in order to maximise the opportunity for the best result. That is something which I will be working towards—I hope with the support of other senators.
I will take this opportunity to read some excerpts from the report of the Senate Standing Committee for the Scrutiny of Delegated Legislation inquiry into the exemption of delegated legislation from parliamentary oversight. These quotes from leading Australian experts underline the importance of the points made by Senator Whish-Wilson and the points which I am making. This is a quote from Professor Twomey, who is one of Australia's leading constitutional law experts:
…legislative power is conferred upon Parliament by the Constitution and to abdicate that power would be to breach that constitutional conferral of power on Parliament. Accordingly, Parliament must retain control over its delegated legislative power and be in a position to supervise the exercise of delegated legislative powers in order to be effective in exercising that control.
3.42 Professor Twomey argues the mechanism of control and supervision is the process of tabling and disallowance.
I give another quote, from section 3.44 of this report, from Professor Kristen Rundle, a co-director of the Centre for Comparative Constitutional Studies at Melbourne Law School. She said:
…disallowance is not just a technical process that your committee [Scrutiny of Delegated Legislation Committee] can instigate; it's actually a principle that serves the operation of our constitutional order and, specifically, the centrality of Parliament's lawmaking powers within it…it is not simply a presumption that can be rebutted when convenient…
That is my concern in this case. Senator Ciccone, who is in the chamber, serves on at least one of the scrutiny committees. I'm not sure whether he serves on both of them with me. Senator Ciccone will be well familiar with these arguments. It cannot be rebutted just when convenient, but that's what we're hearing from the relevant department in this case. I'll give another quote from the report, again from Professor Twomey:
Parliament would completely abdicate its responsibility if it was unable to change the laws that provided for the delegated legislation.
And it goes on. There is another quote from Professor Kristen Rundle which really sums it up and underlines the concern I have that there's been a systemic shift over time to make delegated legislation not subject to the disallowance process and, therefore, not subject to the scrutiny of the Senate. She said, 'There's a cultural shift needed here, back towards the primacy of parliament.' A cultural shift is needed.
It concerns me deeply that we, the elected representatives appearing here in the Senate to represent our communities, will have our scrutiny role undercut, abdicated and eliminated if instruments aren't subject to disallowance. Consider that the disallowance principles apply to whether or not the instrument has been made in accordance with the act. That is not a scientific or technical issue; that is whether a minister who issues an instrument under an act has the power to do that. Isn't that something which you'd expect the Senate to scrutinise? Why shouldn't the Senate scrutinise that? The argument is absurd—absolutely absurd. Whether or not a constitutional power has been exercised—isn't that question something we should scrutinise here, as the Senate? Doesn't that go to the absolute core of our responsibilities? Whether or not there has been adequate consultation with respect to an instrument, again, goes to the core of our responsibilities. Has the minister consulted with members of our community who are going to be most impacted by these instruments? So many people in the Australian community have been impacted by instruments made under the Biosecurity Act, especially during the COVID pandemic. There needs to be consultation with respect to these instruments. Does the instrument inappropriately infringe upon the rights and liberties of Australian citizens? Isn't that something which we should be scrutinising? Of course it is. It can't be left to the departments. It can't be left to the executive, in terms of the minister. There needs to be a check and balance. That's how our system works or should work.
In closing, I'll refer to some of the arguments that are sometimes used to justify this. In terms of emergencies, we all understand that in certain biosecurity situations there can be an emergency and the department or the minister needs to act quickly. The disallowance process does not prevent that. The instrument is issued, the action is taken and it has effect from the moment when the action is taken. What the disallowance process means is that once the instrument is issued the exercise of that delegated lawmaking power is then scrutinised. In the very unlikely event—Senator Whish-Wilson gave you the numbers—that the issue can't be resolved through discussions between the Senate, the scrutiny committee and the minister, there's a disallowance motion, which is put on the floor of the Senate.
It's at that point that each and every one of the 76 senators here can make their own assessment with respect to the arguments as to whether or not the instrument should be in place. That's our job. There will be scientific and technical arguments. Of course there will be. There will be financial arguments. There will be social arguments. There will be arguments with respect to people's freedoms and liberties et cetera. Of course there will be. That's our job, and we do that every day.
It is only if a majority of the senators in this place believe that instrument should be disallowed that it is disallowed. That's the only situation in which it's disallowed, and that is an extremely rare event. I would have thought that the Australian community would be very concerned if a majority of senators came to that view and were deprived of their ability to actually disallow an instrument in that circumstance. What would that say about our system if a majority of senators in this place believed an instrument was inappropriate and should be disallowed, and we were deprived of our ability to actually cast a vote and put it into action? It's a major concern.
This is a systemic issue. It needs a solution. It's certainly something on which I am very interested in pursuing discussions with colleagues all across the chamber in order to rectify this matter, because it's simply not good enough. It's not good enough that we continue to see legislation introduced in this place which has instruments which are not subject to the disallowance processes, depriving the Australian people of the scrutiny process which goes to the heart of this place. With that, I'll conclude my comments. I've talked to many of my friends in this chamber about these issues, and a lot of my concerns and Senator Whish-Wilson's concerns, as he articulated, are shared by many in this chamber. I recommend all senators continue reflecting on this. It's something we need to bring to a head at some stage. We need to bring it to a head and make some material action to assert the importance of this Senate and the scrutiny processes which go to the heart of our role.
I do support this bill and the increase in the strength of our biosecurity laws, given how critical biosecurity is to our country. We're a megadiverse country and an island nation, and we've seen the devastation of invasive species and diseases on our biodiversity, our agriculture and our economy. But there are clearly real issues with the lack of parliamentary oversight of some of the powers under this bill, as Senator Whish-Wilson and then Senator Scarr highlighted.
This does not seem like the proper way to be making these sorts of laws, and it is incredibly disappointing after the significant concerns that were raised by the scrutiny committees that the government has proceeded with the plan to make parts of this bill 'un-disallowable'. Legislative instruments should only be subject to disallowance in exceptional circumstances, and I think we see that. The Senate takes it very seriously when they seek to disallow a regulation and I accept that it is very unlikely that the delegated powers given to the minister under this bill will be misused, but we need to recognise that our democratic system relies on parliamentary oversight, as Senator Scarr so well laid out. This oversight should never be given away lightly.
In this case, serious concerns have been raised. The Senate Standing Committee for the Scrutiny of Bills raised concerns about the absence of parliamentary oversight in parts of this bill with the minister and the department. The minister responded, but the committee was not satisfied with the response. One justification provided by the minister was that the subject matter is too scientific and technical to be subjected to parliamentary oversight. I stand with the committee's emphatic rejection of this justification:
simply stating that a matter is technically complex, or has significant policy implications, is not an adequate justification for removing democratic oversight over a law of the Commonwealth.
The committee goes on:
The committee reiterates its view that while it is often appropriate to delegate law-making power to the executive in relation to technically complex matters, it does not follow that such instruments should subsequently be exempt from disallowance on that basis alone.
A second justification offered by the minister is that oversight would create uncertainty, but it's completely unforeseeable that measures to increase biosecurity where a significant threat arises would be disallowed. There were only 17 instruments disallowed between 2010 and 2019. It seems completely unforeseeable that, for example, a regulation to increase the use of foot mats in response to the increased risk of foot-and-mouth disease would be disallowed. Much of the questioning and talk I heard on this was for a swifter response and for a more stringent approach when it comes to our biosecurity, so I simply do not buy the arguments that have been put forward by the government to justify what they are doing here.
A third justification offered by the minister is that any disallowance of regulations would have a significant impact. I find this justification particularly problematic. Surely where the consequences of laws are more significant—more, not less—parliamentary oversight is needed.
I will not be moving an amendment to this bill, but I urge all senators to work to protect the oversight we were elected to provide. The Senate is the house of review, and we need to make sure that this function is always properly applied. As someone who is new to this place it seems to me that there is a huge amount of legislation that is issued in the way of regulations, with ministers deciding on aspects of policy, that should then be subject to oversight in here. We should at least be able to have the discussion, to be able to talk about it in this place in committees, and then come to an informed decision after scrutiny. With this bill, the government is seeking to remove that oversight of the Senate, remove that ability to ensure that the laws we make are in the best interests of the Australian people. As Senator Scarr pointed out, there are parts of this bill that confer extraordinary powers. You could argue, rightly so, that that is justifiable when it comes to matters of biosecurity. I would say there is as strong an argument that, with those extraordinary powers, there should be oversight from the Senate. I would urge the government to consider this and, going forward, to not introduce bills to this place that have similar arrangements.
I too rise to speak on the Biosecurity Amendment (Strengthening Biosecurity) Bill. Obviously, this is something that is very close to my heart, coming from regional Western Australia and being concerned for the agricultural industry. Successful biosecurity arrangements are one of the pillars that will enable agriculture to meet its growth targets over the next decade. We on this side are extraordinarily happy to support measures that do increase those protections, particularly for our agricultural community, and to see a constant evolution. This is a constant battle.
We like the fact that people move, we like the fact that people can travel and we like the fact that trade can occur between nations. These are good things. They are a positive for our nation and for other nations. But as population flows and trade flows increase, they also leave our environment and our agricultural producers at risk of biosecurity threats. Obviously, we've seen that very starkly revealed over the last six months with foot-and-mouth disease and lumpy skin disease being found in our near neighbour Indonesia. It is a constant battle to make sure that our systems and processes and the structures of our regulatory regime keep up with the constantly increasing pressure on those systems, so we do need to keep a watching brief on this. This isn't something you can set and forget, so we do welcome the government's introduction of these measures.
We particularly support the bill because it allows for new measures to manage biosecurity risk coming from travellers. As I said, this is very important because of the recent outbreak of foot-and-mouth disease in Indonesia and the risk of that disease finding its way into Australia, which would obviously be absolutely devastating for agricultural producers. The bill expands pre-arrival reporting requirements for aircraft and vessels. Getting people to think about biosecurity is one of the key tasks. If people think about it they will act appropriately. If they don't think about it, there's always the risk that things will slip through. It allows for better information sharing with government agencies and other bodies. It raises civil and criminal penalties for breaches. Again, if people are aware there are penalties involved, they will behave more carefully. It increases transparency around the process. It increases efficiency and transparency of expenditure on biosecurity programs, and improves the operation of provisions relating to the approval arrangements and compensation. As I said, these are common-sense measures. They have our support and they certainly have the backing of the agricultural industry.
As a servant to the people of Queensland and Australia, I want to say that the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 is not just a plant biosecurity bill; in addition, it is a human biosecurity bill. We endorse many of the provisions relating to plant biosecurity. While we support many of those plant biosecurity initiatives, we cannot support the provision that enables the government to consign a class of people to quarantine. After the COVID mismanagement and the deceit and abuse that we saw from state Liberal, Labor Party and National Party governments and from a Liberal Party in government federally, the last thing that One Nation wants to do is to give politicians and unelected bureaucrats more power. That's the last thing we will do.
Government is always a trade-off between the rights of the individual and the need for collective action against real security threats—and I emphasise the word 'real'. This bill, when it comes to human quarantine, will move the weight of power further into the hands of government and unelected bureaucrats and away from the people. In the eternal human challenge between control and freedom, we must always support and enable freedom. To give any government this much power presupposes that the government knows what to do with it. So let's have a look at the recent history of governance in this country when it comes to a virus and, supposedly, quarantining. I've compiled a list of 30 initiatives that occurred for the first time in our country's history. I will read a few of them; I'm not going to read all 30.
This is the first time that governments forcibly injected people with something that can kill them and is killing them. People are dying in their hundreds in this country—potentially, in their thousands, because the records are not accurate. This is the first time that governments have prevented sick people accessing a proven safe and effective treatment, in Ivermectin and hydroxychloroquine. They banned it. Doctors in other countries and good doctors in this country worked out that it was very successful and very safe, and 3.7 billion doses have been administered. Yet, those treatments were banned and the doctors were then banned for doing their job.
Greg Hunt, then federal Minister for Health said—and these are his words—that 'the world is engaged in the largest clinical vaccine trial'. It was experimental. It was a radical new gene therapy based treatment, yet it was being mandated. It has not been tested. It had a literature review, and that's it. We've seen a massive transfer of wealth from taxpayers to big pharma. How the hell can we trust government in this country—state or federal? Towards the end of the second year, they said, 'We now need to live with the virus.' Oh, really? Then they extended the emergency provisions that declared states of emergency.
We cannot trust governments in this country. Look at the previous Prime Minister. He said repeatedly that Australia has no vaccine mandate. Those are Scott Morrison's own words, yet the Morrison-Joyce federal government drove the vaccine mandates that forcibly injected people. At the very least, they enabled the mandates, because it was the federal government—the Joyce-Morrison government—that bought 280 million doses of this stuff. They could have stopped the states at any minute simply by not giving the states the injections. Secondly, the federal government indemnified the states against vaccine damage. Thirdly, the federal health department provided the data and systems needed for states to enforce the mandates.
The federal government drove this. The state premiers agreed. They say that their vaccine mandates are in line with the unconstitutional so-called National Cabinet that Prime Minister Scott Morrison led. The federal government mandated vaccines in aged-care workers, the defence department and the Australian Electoral Commission—full of lies and not based on science. That's just with the existing provisions without this one that's being added. Then we saw AHPRA, a concocted regime based upon so-called national law. Now we see Queensland driving the latest iteration of national law—making it a provision that confidence in the health system is more important than patient care. That is naked suppression and control of doctors.
Then we realised that the injections were forced on people—if you want your kids to eat then you'll get this injection. That's what was done in this country. We saw that untested—or partially tested, very inadequately tested, incompletely tested—injections were used, and approvals were based in America for these injections on big pharma's word. That's it. The CDC didn't test them, the FDA didn't test them. Our TGA and ATAGI swallowed the lie about these injections. Military boots were put on the ground to enforce imprisonment of healthy people in their homes in New South Wales. The Victorian Premier, Dan Andrews, ordered his militarised police to fire on innocent protesters. Who will ever forget what happened at the Shrine of Remembrance on Anzac Day? He locked down the Shrine of Remembrance on Anzac Day. Who will forget the digger who was stopped from entering the Shrine of Remembrance on Anzac Day?
Arbitrary degrees, changing from one day to the next—how the hell can the science behind all the measures be science when they're conflicting? Science should be transparent, not locked in a cupboard. And if it's science, it should be consistent and debatable. None of this applied in COVID restrictions. Instead, we had censorship and persecution of good and decent doctors accused of being heretics. This is 2022, not 1692 in Salem, Massachusetts, when dissenters were labelled witches and burned. Today it's doctors and nurses being burned, their 40-year careers being burned at the stake. Now their careers are not even smouldering embers—they're gone, they're dead.
Power must always be accompanied by transparency, and yet we cannot even get copies of big pharma's vaccine contracts with our federal government. The Greens and the Labor Party stopped that, and the vote was tied. The process of dismissing almost 1,000 doctor supported deaths due to COVID injections turned into 15, so the process that was used by the TGA to take almost 1,000 doctors reported deaths—and doctors are responsible for reporting deaths in this country—and making the number 15 is not even quantified, not even specified. It's arbitrary, and we also know from listening to doctors and nurses that the reported deaths are a tiny fraction of the actual deaths, so there are way more than 1,000. That's the story overseas as well.
And now you want more power—more power to put classes of people into quarantine. Who would they be? Non-vaccinated people? And you want power over people. You're not going to get it from One Nation. That's why we cannot support this. All the things that I've talked about were for a coronavirus that the Chief Medical Officer admitted to me in writing was of low to moderate severity—low to moderate severity. Look at the actual results. This is from the Australian Bureau of Statistics, published in part as a result of a One Nation document discovery a few weeks ago in this very chamber. In 2019, the year before COVID, the seasonal flu cost 4,126 lives. The next year, 2020, Australia recorded 882 deaths from COVID and 2,287 deaths from the flu, for a total of 3,169 deaths, almost 1,000 fewer deaths than the flu alone killed the previous years. Then, in 2021, 1,137 deaths were recorded from COVID and 2,073 were recorded from the flu, for a total of 3,210. This means that deaths from the flu, including COVID, across the first two years of the virus in this country were right on the long-term average of 3,255. There was nothing unusual about the Australian death rate in 2020 or 2021, and yet the COVID substances, the injections, were given emergency approval without any testing. The only thing unusual about our death rate in 2021 was that it was at a seven-year low. This makes a joke of provisional approval granted for injections out of urgency.
We are the party of freedom. Freedom is the key to human progress. Freedom is the key to responsibility. Freedom is the key to human satisfaction. Freedom is the key to truth, which was squashed and suppressed and became a victim of the government's COVID restrictions at state and federal levels. Before you ask for additional power, we need a royal commission to establish whether you need more power and if the power you already possess has been used properly and honestly. You're asking us for more power, yet you have not established why you need more power. You have already misused the power parliaments have given you and exercised your power with zero transparency at state and federal level. We cannot support this because it contains a provision for classifying humans into quarantine, as a class. We have one flag. We are one community. We are one nation, and we will always stand for freedom.
I thank all senators for their contributions to this debate—some of which I agree with more than others, but I very much welcome the contributions we've seen.
The Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 will amend the Biosecurity Act 2015 to strengthen Australia's ability to manage biosecurity risks, such as foot-and-mouth disease, posed by goods and by maritime and aviation traveller arrivals. In response to the current threats, we have deployed the strongest-ever response to a biosecurity threat at our border. We've supported our Indo-Pacific neighbours, toughened our legislation, stress-tested our preparedness and aligned ourselves carefully with state and territory partners in the nation's first National Biosecurity Strategy.
It's worth repeating that Australia remains both foot-and-mouth-disease and lumpy-skin-disease free. But the last few months have illustrated the need for a biosecurity system which is up to contemporary challenges. To that end, I'm pleased to say that the centrepiece of our agriculture budget this year was an investment of $134.1 million to bolster Australia's biosecurity system against the immediate threat of disease.
Critical to implementing these measures are strong legislative powers that enable biosecurity officers to effectively manage the biosecurity risk. This will be done through new measures that manage biosecurity risk arising from travellers and classes of individuals for the purposes of preventing or reducing the risk of a disease or pest, such as foot-and-mouth disease, being introduced into Australia through the footwear and clothing of travellers.
The bill will strengthen the legislative framework in responding to and managing human biosecurity risks. This will be done by expanding prearrival reporting requirements, to ensure access to up-to-date information is available to inform the management of human biosecurity risks, and strengthening penalties for noncompliance. The bill will enable more effective sharing of information with government agencies and other bodies in line with other Commonwealth legislation while ensuring that protected information is afforded appropriate safeguards.
The bill will increase pecuniary penalties that apply to specified criminal offences and civil penalty provisions in chapters 3 and 4 of the Biosecurity Act, which deal with managing biosecurity risks relating to goods and conveyances. These increases apply primarily to regulated entities such as commercial importers and to operators and persons in charge of aircraft or vessels, all of whom have a particular responsibility to know and understand their obligations under the Biosecurity Act. The increased civil penalties will serve as a deterrent to anybody considering undermining our biosecurity laws, and the criminal penalties will allow appropriate and proportionate punishment for offences under the Biosecurity Act. The process for making certain determinations relating to the import of goods, including the granting of permits based on risk assessments, will be streamlined by this bill. Other amendments will ensure transparency and efficiency of expenditure on biosecurity related programs and activities by permitting the agriculture minister and the health minister to authorise the expenditure directly through the Biosecurity Act.
This bill will enhance the effectiveness and efficiency of the management of approved arrangements while also improving processes for approved arrangement administration, auditing and the consideration of compensation claims. The bill will provide for a new civil penalty provision targeting individuals who attempt to conceal goods from a biosecurity official at the border. The new penalties will be subject to the infringement notice scheme under the Biosecurity Act and serve as a deterrent to carrying out this serious behaviour that could jeopardise Australia's biosecurity status.
I know there's been a lot of public commentary about the level of penalties that exist under current legislation in relation to biosecurity offences, and the government is taking action to lift those penalties to ensure that we have strong deterrents against people doing the wrong thing and exposing our food and livestock and grains and crops industries to biosecurity threats. Passage of this bill will ensure that the biosecurity framework remains effective and responsive in protecting Australia's animal and plant health, environment and economy. This includes ensuring the biosecurity framework remains fit for purpose when responding to emerging biosecurity and human biosecurity risks. I foreshadow that I will be moving amendments at the appropriate time.
Question agreed to.
Bill read a second time.
Senator Roberts, we can record your dissent.
Thank you.
by leave—I move the amendments on sheet TK327:
(1) Clause 2, page 2 (table item 5), omit "7", substitute "8".
(2) Page 60 (after line 15), at the end of the Bill, add:
Schedule 8 — Concealment of goods
Biosecurity Act 2015
1 Section 9
Insert:
conceal goods has a meaning affected by subsection 186A(2).
2 After section 186
Insert:
186A Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory — concealment of goods
(1) A person is liable to a civil penalty if:
(a) the person brings or imports goods into Australian territory; and
(b) the goods are conditionally non-prohibited goods; and
(c) a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with; and
(d) the goods are concealed for the purpose of preventing the goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official.
Civil penalty: 1,200 penalty units.
(2) Conceal goods includes any of the following:
(a) concealing or disguising the goods on a person, within any clothing worn by the person, within any other object located on the person or within any other object not located on the person (including by sewing, gluing, fastening, binding, wrapping, covering, enveloping or packaging the goods);
(b) incorrectlymarking or labelling the goods or any packaging or container in which the goods are located;
(c) altering the goods (including by changing or suppressing the appearance, texture, smell or sound of the goods).
Exception
(3) Subsection (1) does not apply if the person:
(a) did not do the act, or omit to do the act, that constituted the failure to comply with the condition referred to in paragraph (1)(c); and
(b) did not aid, abet, counsel or procure that act or omission; and
(c) was not in any way knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by any act or omission of the person).
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see section 96 of the Regulatory Powers Act).
3 Subsection 523(1) (after table item 8)
Insert:
4 After subsection 524(4)
Insert:
(4A) Despite subsection (4), the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of subsection 186A(1) of this Act by a person must be:
(a) 20 penalty units where the person is an individual; or
(b) 100 penalty units where the person is a body corporate.
5 Subsection 633(2)
Omit "or 186(1)", substitute ", 186(1) or 186A(1)".
6 At the end of subsection 633(2)
Add:
Note 3: Subsection 186A(1) is contravened if a person brings or imports conditionally non-prohibited goods into Australian territory, a condition applying to the goods has not been complied with and the goods are concealed for the purpose of preventing the goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official.
7 Application provision
The amendments made by this Schedule apply in relation to goods brought or imported into Australian territory on or after the commencement of this Schedule.
I also table a supplementary explanatory memorandum relating to these amendments.
Australia's biosecurity system is facing increased risks due to individuals deliberately concealing goods to evade detection at the Australian border. We've seen this recently. As the minister, I've been very surprised at the lengths to which some people will go to conceal goods that they know very well should not be brought into this country because they expose our agriculture industry to risk. If individuals attempt to conceal goods such as meat and meat products, seeds and plant material, or fresh fruits and vegetables in their luggage, in their clothing or on their person, that is a serious flouting of Australia's strict biosecurity laws. These goods, if undetected, could introduce serious pests and diseases into Australia, devastating our $70.3 billion agricultural export industries, the 1.6 million jobs across the agricultural supply chain and our way of life. Everyone should openly and honestly declare goods such as food items on arrival in Australia so that biosecurity officers can inspect the items and assess the biosecurity risk. The concealment of goods at the border prevents our biosecurity officers from being able to appropriately assess and manage the biosecurity risk associated with those goods.
Under the current penalty scheme, individuals who attempt to conceal high-risk goods, including within their luggage, are subject to the same penalties as individuals who conduct less serious behaviour. I don't think that's right. The new measures in these amendments, therefore, will provide for stiffer penalties where someone demonstrates the more serious behaviour of concealing high-risk goods to evade detection. This may include acts like sewing goods into the lining of a suitcase or placing goods within a container with incorrect markings or labels. This includes a new civil penalty provision that would apply a higher maximum civil penalty of 1,200 penalty units. An individual may also be liable to an infringement notice with an amount payable of $4,440, the highest amount we have ever seen for an infringement notice for an individual under the Biosecurity Act. This is approaching double the current amount of the infringement notices. These stronger penalties will provide an effective deterrent against this serious behaviour, which jeopardises Australia's biosecurity system, while putting the focus on individuals who commit serious noncompliance by attempting to conceal high-risk goods when entering Australia. Thankfully the vast majority of individuals, including those returning from overseas, do the right thing and declare their goods on arrival in Australia. These new measures are designed to target the very small minority who not only fail to declare their goods but who choose to conceal goods to evade detection.
Biosecurity is everyone's responsibility and everybody needs to do the right thing. If they don't, the Australian public would rightfully expect an appropriate punishment. These new measures will provide a more proportionate response that better reflects the seriousness of these contraventions of our biosecurity laws. We will not tolerate behaviour that jeopardises Australia's agricultural industries, our food supply chain, our unique environment and our way of life.
I wasn't planning to ask any questions in this committee stage, but I did listen to the minister's second reading contribution and was disappointed that he didn't acknowledge the concerns that were expressed in this chamber over the last hour around the fact that we're voting to support an important bill today, but we're also voting to reduce the power of the Senate and we're voting against our own function and duties to scrutinise legislation.
So, Minister, would you take the opportunity now to address our concerns in relation to both the concerns within Scrutiny digest No. 6 of 2022 around the inclusion of no-invalidity clauses in proposed sections 196A and 393B, and why you didn't amend the bill that made determinations under proposed sections 196A, 196B and 393B and make them disallowable, and therefore subject to parliamentary oversight.
Before addressing Senator Whish-Wilson's question, I table an addendum to the explanatory memorandum relating to this bill. This addendum responds to the concerns that were raised by the Scrutiny of Bills Committee.
Senator Whish-Wilson, it was my intention to address these issues, because I know a number of senators raised them in their contributions, but I wanted to do it in the context of tabling that addendum. This is something that was requested by the Scrutiny of Bills Committee, I believe, only yesterday, and they asked for that to be done in time for it to be considered as part of this debate. I thank the departmental officials and my own personal staff in my office for the speed with which they've addressed this issue.
You're right, Senator Whish-Wilson, there has been a lot of back and forth in the last couple of weeks—particularly between me, my department and the scrutiny committees of this parliament—about what are essentially non-disallowable powers that are being provided through this legislation to the agriculture minister of the day. As I have made clear to those committees, I haven't taken it lightly to put forward legislation which provides powers to a minister—which, for the moment, happens to be me but will be someone different at some point in the future—which are not disallowable by the Senate. Obviously, the usual practice is that powers granted to ministers, in whatever field, are disallowable by the Senate, to provide some sort of check and balance on the potential misuse of those powers by ministers.
I would point out that the existing Biosecurity Act contains a small number of powers related to biosecurity outbreaks that are granted to either the agriculture minister or the health minister of the day. So it has been the case in years gone by that this parliament has recognised that, particularly in the circumstance of a major biosecurity outbreak that threatens human, animal or plant health, there are limited circumstances in which the minister of the day needs to be given powers to act very quickly to contain an outbreak without the threat of those decisions and those powers being jeopardised by potential overrule, if you like, by the Senate.
Similarly, in the amendments that we're putting forward in this legislation we are conferring additional powers to the agriculture minister of the day, and it is in response to the recent threats we've seen, particularly around foot-and-mouth disease and lumpy skin disease. They are powers, for instance, to direct how passengers arrive in airports, what they need to do on arrival and the ability to put down foot mats or other protections at airports—the sort of measures that we undertook in response to the recent threat. But I can tell you, it was a pretty convoluted process under the existing legislation to enable those things to happen. And that was all in a situation where, fortunately, we didn't have an outbreak here. It was about the threat of a potential outbreak. If we ever were in a situation in Australia where we did have an outbreak of a serious animal or plant disease like foot-and-mouth disease, we would need to be able to act quickly and with certainty, without the threat of those powers being overturned by the Senate.
As I say, I recognise that it is not the norm for these sorts of powers to be non-disallowable, and that's why with this legislation we're confining the non-disallowable nature to a very small number of powers that would only need to be used in the most extreme circumstances. There are a number of other powers provided in this legislation that would be disallowable by the Senate, because we recognise that, in general, powers being used by ministers should be subject to oversight by the Senate. But, as I say, there are a very small number of powers being provided for in this legislation that—it is our view and it's certainly the advice of my department—may be needed in the event of a serious biosecurity emergency. My No. 1 responsibility in that situation, as the agriculture minister, is to bring an outbreak under control quickly before it spreads and before it potentially wipes out an entire industry. We need to be able to act fast and we need to be able to act with certainty.
As I say, I understand it's not what we see on most occasions—that through legislation powers are granted on a non-disallowable basis. That's why some of the other powers that are being provided by this legislation would be disallowable. The exception is a very small number where it's our view and it's the department's advice to me that they are necessary to allow a minister of the day to act very quickly to bring that sort of an outbreak under control.
I think that Senator Pocock has also got some questions. I'll be very quick. To what you said there, Minister, my feeling is you've got tripartisan support for giving you those special powers to act when you need it. Everyone wants to see strengthened biosecurity. The issue here is that you're taking away our ability to scrutinise it. You didn't actually address the issue. The issue is that once this passes today it immediately goes into law, but the Senate should have its required number of days to scrutinise this.
You've just tabled the addendum to the explanatory memorandum containing the key information. That was requested by the Scrutiny of Bills Committee 'as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation'. You've just tabled that now. I haven't had a chance to read it, nor has anyone else. I should have 15 Senate sitting days to do that, and if there were concerns I could raise them with you or with other senators, and perhaps we could have that debate.
That's all we're asking for—just the chance to be able to do our jobs. We're not saying we're not going to support your abilities and special powers under this legislation to do your job. We just need to do our jobs and scrutinise this, and you've taken that away today. I accept it's a small number of things, but the point still stands that you are reducing the power of the Senate and parliamentary oversight in this legislation today.
Minister.
I presume Senator Scarr is going to say similar things, so maybe I should respond at the end.
I think the minister is aware of my concerns. If I could, at the outset, firstly thank the minister for the way in which he engaged with the scrutiny process and secondly thank members of his department who made themselves available in order to give briefings to the scrutiny committee. That was greatly appreciated.
Minister, do you recognise that, for example, one of the scrutiny principles which the scrutiny committees apply is whether or not an instrument is actually made in accordance with the provisions of an act? If an instrument is issued outside the parameters of the act, that in itself is something which can be picked up through the application of the scrutiny principles by the Scrutiny of Delegated Legislation Committee. There's an important aspect in terms of the application of the scrutiny principles by this place. There's also scrutiny which applies with respect to whether or not an instrument is constitutional, which again goes to the heart of the instrument and whether or not it should remain in power. Lastly, with respect to your point about the need for the department to move quickly and for you as minister to move quickly in order to discharge your duty, we recognise that, and I compliment you on the seriousness with which you take your duties. I've no question about that or with the advice of the department. But the scrutiny process doesn't prevent the taking of urgent action, and in fact, in most cases where scrutiny issues are raised, there is an iterative process with the department and with the minister to address those scrutiny principles through that iterative process. Even if an instrument is disallowed, it doesn't go back in time to the point when the instrument was issued. It just looks forward in time, in the very unlikely event that an instrument is disallowed. I'd be interested in your considering those points.
I might respond to the issues that have been raised so far. Senator Whish-Wilson, sounds unhappy with the fact that the addendum to the explanatory memorandum has only just been tabled. I would point out that my office received the letter from the committee only about lunchtime yesterday and have moved heaven and earth to get the addendum even done at all. Sure, in an ideal world, it would have been nice to have been able to provide that to you earlier, and maybe it would have been nice to have received the committee's letter earlier, but I understand they had to work through their processes, and we've had to do the same thing. I just want to defend the people in my department and my office, who have worked very hard to provide the addendum at extremely short notice.
Before I respond to Senator Scarr's points, I will point out that this is not the first time that we have seen non-disallowable powers provided to the health minister or the agriculture minister through the Biosecurity Act. In fact, the current Biosecurity Act contains 28 provisions that enable the making of legislative instruments that are exempt from disallowance. That's because biosecurity outbreaks are extremely serious things that need to be brought under control very quickly. I recognise that there are probably many more powers in the biosecurity legislation than 28that are disallowable, but this is not an unprecedented action, and it is recognised in the Commonwealth Legislation Act that parliaments have the ability to confer non-disallowable powers on ministers for extreme situations. It's not as if there is no power to do so, but it is important that when ministers come to this chamber and seek those sorts of powers they be confined to extreme situations, which is the case here. What is also the case here is that the non-disallowable powers we're talking about, which would only be able to be used in the event of an extreme biosecurity emergency, also can only be used on the basis of scientific advice. There's not some wide power for ministers to go out and do whatever they want. They need to be able to justify and demonstrate that they've got scientific advice—from our biosecurity experts in the department, for instance—that the kinds of actions we're talking about are necessary. And they are for a very limited number of functions.
Senator Scarr, I may not be able to recall every single one of your questions, but the point you made towards the end—and we've had this discussion in the lead-up to this legislation—that if these powers were to be disallowable rather than non-disallowable they could still be exercised, and if there was a problem with them, they could then be dealt with through disallowance. The risk is not only that we are talking about a situation where there is a biosecurity emergency but that a number of the powers that are provided to the minister require action from other people, such as airport operators and ports, and in some cases would require significant investments from them to be able to do what the minister is directing them to do.
Our experience is that it can take some time to negotiate these things with airport operators, the ports and other people, and, we think the risk that those powers are going to be overturned by the Senate—particularly if you're talking about requiring people to make big investments to meet those powers—is, potentially, a deterrent to the likes of airport operators, port operators and others to do what is necessary to be done. Again, we're talking about a situation where there's a biosecurity emergency. We need all action stations. We need everyone—government, airport operators, port operators, biosecurity officers or whoever's involved—heading in the same direction very quickly to contain an episode. The risk of disallowance of these powers, we think, is a disincentive for some of the external parties that we need to cooperate with us from getting on and doing what needs to be done.
I thank the minister for that fulsome response. Again, I in no way question the minister's integrity or sincerity in this respect, and I think he appreciates that. But, Minister, when you enumerate those factors about commitments being made, isn't every one of those factors something which could properly be considered by the senators in this place when they're considering a disallowance and in the application of the scrutiny principles?
Yes, it is, but every day that we either don't act or face the risk of powers being overturned is a day when a biosecurity episode could get bigger and more damaging to the community, to industry and to the environment. It's all about the need for speed in a biosecurity emergency.
Again, I appreciate the comment you're making, but, from my perspective and, I think, my colleagues' perspective, those are matters which could all be properly considered by the senators in this place. I come back to two of the other questions I asked. I note that I made a number of comments, Minister, so I'll return to those.
One of the scrutiny principles which the Scrutiny of Delegated Legislation Committee considers is whether or not an instrument is lawfully made under the power of the act. That is a key scrutiny principle, which I think you would be familiar with, Minister. And it is a key role of the scrutiny committee to actually consider whether an instrument is lawful. And, whilst the instrument might be based upon advice of the department, there have been numerous occasions whilst I've been serving on the scrutiny committee, when instruments have been put forward and the scrutiny committee has gone back to the department and the minister and queried whether or not the instrument could be properly made under the terms of the act.
There's certainly one example in relation to the ARENA legislation where it was ultimately determined that no, it couldn't be. That goes to the heart of whether or not an instrument is properly made within the ambit of the act. Isn't that an important scrutiny principle and an important matter for this Senate to consider in determining whether or not something should be subject to disallowance?
I think the senator has in some ways answered his own point by pointing to the ARENA example which, ultimately, was found to be outside the scope of the law. I don't know if it went as far as being found to be illegal. So there are remedies. In particular, as you would know from your legal background, people do have the ability to challenge in a court what is, effectively, an unlawful action or unlawful decision by a government. So, in a hypothetical situation where a minister used powers that were not actually allowed to be provided by the primary legislation, that is a decision that can be challenged in court.
In responding to these points, I appreciate that the minister might not be across the particulars of the ARENA case, but the ARENA instrument was only considered because it was disallowable and, therefore, came before the scrutiny committee. So that issue wouldn't have been identified but for the fact that it was contained in a disallowable instrument and, therefore, fell within the ambit of the scrutiny principles. So I take the minister's point, but I think there is a legitimate point there to be considered.
On the second point, in relation to the minister's previous career, I know the minister feels very strongly about representing people who need assistance with respect to legal representation and making sure everyone in this country is able to seek justice. Isn't the reality that there are many people who are subject to instruments made in this place who simply don't have the power, don't have the financial resources and don't have the ability to run off to court to challenge something? In that situation, the scrutiny committees of this parliament perform an extremely important role to effectively act for those people who we are elected to represent.
I think most of that is commentary from Senator Scarr, and I respect his right to put his views forward. I can't really add much to what I've said. Let's remember that what we're talking about here is powers, for example, for a minister to be able, without any interruption or obstacle, to direct airports to put down foot mats in airports to keep our agriculture industry safe. I find it hard to imagine that anyone would want to challenge that kind of a decision in court.
Thank you, Minister. Firstly, just to echo the words of other senators, thank you for the constructive way that you and your office and the department have engaged not just on this issue but on a range of issues. Being new to this place, I was very interested to learn that, when the Scrutiny of Bills Committee was established in 1981, it was the first of its kind in the world, and since then we've seen parliaments across Australia and the world adopt similar models. I am interested in the process and the government's thinking on this, given that the Scrutiny of Bills Committee has raised concerns and the Senate Standing Committee for the Scrutiny of Delegated Legislation has also raised concerns, and, as I understand it, those concerns are unresolved. They are very valid concerns raised by committees that are chaired by government senators and, from my experience, have a totally non-partisan way of dealing with this and undertaking the task of scrutinising bills and potential delegated legislation. What was the process for the government in deciding to proceed with this legislation, despite having valid concerns from those two committees?
ATT (—) (): As I'm sure you're aware, there was extensive discussion between me and the committees, my office and the committees, and my department and the committees. There has been quite a lengthy discussion process. But the reason for pushing on is that recent events have demonstrated that we need much stronger biosecurity powers as a country than those that exist at the moment. I don't want to waste a day in ensuring that I, as the minister, and the department of agriculture have the powers that are necessary to deal with a foot-and-mouth disease outbreak, for example. And that's what this legislation is all about—providing those powers.
I don't think Senator Pocock heard me say earlier that the non-disallowable powers that are being provided by this bill are a very small number of powers confined to the most extreme circumstances. There are other powers in this bill that are disallowable, and that's the way it should be. I don't want to be providing any more non-disallowable powers than are necessary, and that's why we've confined the non-disallowable powers to the very small number that this bill contains.
I am obviously always happy to take questions about this issue, but can we bear in mind that there is some other very important legislation we've got to get to today as well, such as the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, and I know a number of people want to make contributions to that debate.
Question agreed to.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.
I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
by leave—I move:
That the Joint Select Committee on Parliamentary Standards be authorised to hold private meetings otherwise than in accordance with standing order 33(1) during the sitting of the Senate today, from 9 am and from 12.45 pm.
Question agreed to.
by leave—I move:
That the leave of absence be granted to Senator O'Neill today on account of parliamentary business.
Question agreed to.
I rise to speak on the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The bill before the chamber will implement further recommendations from the Respect@Work report. Without a doubt all sides of politics agree that sexual harassment in the workplace is unacceptable. No matter who is in government it is important that we all continue to work together to ensure that we combat sexual harassment in all Australian workplaces.
The former coalition government commissioned the inquiry into sexual harassment in the workplace in June 2018. The final Respect@Work report is a very detailed document which made 55 recommendations to the former coalition government. By the time the election was called earlier this year, the former government had implemented or fully funded 42 out of the 55 recommendations of the Respect@Work report and was working on the implementation of the remaining recommendations.
The recommendations in the report were directed not just to the Commonwealth government; a number were also directed to the various state governments and to the private sector. In response to the report, when we were in government I worked with the cabinet and released the Roadmap for Respect, which responded to the report and outlined a long-term plan for preventing and addressing sexual harassment in the workplace. The roadmap included agreeing to, in full, in principle or in part, or noting all 55 recommendations of the Respect@Work report and in particular it focused on prevention. The former coalition government provided over $64 million over the four years in real money to support the implementation of the Roadmap for Respect.
In September last year our government legislated many of the recommendations of the Respect@Work report. This bill did many things. The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 expressly prohibited sex based harassment. It made it clearer than it has ever been in Australian law that sex based harassment is unacceptable. We also corrected gaps in the legislation to make sure that all workers are respected. We made it clear in the Sex Discrimination Act that members of parliament, judges and public servants would all be subject to the Sex Discrimination Act. This means that people are protected from sexual harassment regardless of the field in which they work or for whom they work.
The former coalition government also established the Respect@Work Council, which brings together leaders from key government regulators and policymakers responsible for sexual harassment policies and complaints to improve coordination, consistency and clarity—and this is so important—across existing legal and regulatory frameworks. We also increased the length of time that people have to make a complaint. The original time frame was six months, but, based on the recommendations from the report and certainly listening to stakeholder feedback, we lengthened that from six months to 24 months after the incident.
We also made incredibly important changes to the Fair Work Act to make it clear that being a perpetrator of sexual harassment is a valid reason for dismissal. This is and continues to be an essential reform because what it actually did was make it possible for employers to dismiss a worker who sexually harassed another worker without the risk of them bringing an unfair dismissal claim in response. Again, based on the feedback and looking at the Respect@Work report, it was essential that employers were given this ability, an ability they hadn't had, to respond swiftly when their employees' behaviour is unacceptable. As a community it is essential that we draw the line in terms of unacceptable behaviour in workplaces and beyond that has been common for too long.
The bill that we have before us today in the Senate chamber is one that builds on and continues the work that the former coalition government had commenced. It picks up on the particular issues that were given further time to ensure there was in-depth consideration and consultation. I'm pleased to say that, with the work having progressed, we support the principles behind this bill. There is so much in this bill that we support. I welcome the 12-month period between assent and commencement. This will be essential time for businesses, because it is businesses that need to go out there and learn about these new obligations. We are placing new obligations on businesses, and we need them to be able to put in place the new protocols and policies to ensure that they get their responses right and at the same time give them that ability to undertake the required training for their staff.
The role of the Australian Human Rights Commission is also essential. Under this bill, the Australian Human Rights Commission will be responsible for developing guidance materials, and what we need to ensure is that this guidance material is clear, is simple and is easy for businesses to understand. Again, it is the businesses that we are placing these additional obligations on. We need to ensure that the businesses are able to get that guidance in relation to what these new obligations are and how they need to properly discharge them. On that basis, the Human Rights Commission will be developing these guidance materials.
It's important that these obligations apply to all workplaces, but, when you actually look at the explanatory memorandum—and this is noted—a large bank or another large corporation with a human resources department will clearly have more resources at its disposal to ensure it is compliant. You need to then compare this particularly with small businesses—for example, a corner store—that only have a few staff. In terms of the development of the guidance materials, the Human Rights Commission does need to ensure that the guidance materials can't be one size fits all because businesses are not one size fits all. The guidance materials must meet the needs of different types of businesses. They need to reflect the different capacities that businesses will have to understand and discharge their obligations.
The risks that businesses must manage under this act and under the work health and safety framework vary significantly across industries. Again, this needs to be properly taken into account. When you look at the submission made by the Housing Industry Association in relation to this bill, they note it's extremely difficult for a business to control the various actors on a worksite: the various tradies, the subcontractors, the clients, the state based regulators, the union officials, the owners sometimes and others. Similarly, when you look at a business—for example, a pub—a person creating an unsafe working environment for a second person may be an intoxicated patron rather than an employee of the business. In terms of that fundamental role for the Australian Human Rights Commission in developing this explanatory material, I want to see the guidelines addressing in full that range of different businesses and the circumstances in which they may find themselves.
Guidance from the Human Rights Commission must meet the needs of businesses, as I said, because it is the businesses upon which we're placing these obligations. It needs to ensure that it's based on the different types of workplaces that exist across Australia. Every single day you go into a different business; it is a different workplace. We need to ensure that guidance material does address the different types of businesses that are the subject of this bill.
Let me be very clear: there is no place for sexual harassment in Australian society or Australian workplaces. That's why, when we were in government, the former coalition government, we took decisive action on these issues. The bill that we have before us today builds on the leadership of the former coalition government and the work that we did and the legislation that we put in place. Without a doubt we must continue to work as a society to continually improve and to ensure that everybody has an equal opportunity to succeed and that our workplaces are set up in such a way that someone who works hard, regardless of their background, can reach the highest of heights. We should never tolerate sexual harassment in the workplace or anywhere else. I commend the bill to the Senate.
I rise to speak on the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The Respect@Work report shone a light on the scale of workplace sexual harassment, something that we've become all too familiar with in this place.
In her landmark report, the Sex Discrimination Commissioner, Kate Jenkins, set out a comprehensive, practical and targeted suite of reforms to tackle the problem. Those 55 recommendations were the product of many interviews and consultations with victims-survivors, business owners, government, unions, NGOs, lawyers and others, and they represented a holistic plan to address discrimination and structural inequalities, to relieve the burden on victims and to make workplaces safe. The recommendations were designed to be implemented as an integrated package, but the previous government opted to cherry-pick the recommendations that they supported. They legislated some of them but left out the key one—the positive duty on employers to provide a safe workplace. The then government voted against a joint Greens-Labor amendment to implement that positive duty. We called it out at the time, but we're really pleased that the new government is now finishing the job and implementing the recommendations in full.
The Greens welcome and support this bill. It is a positive and overdue reform to make workplaces safe and respectful for everyone. We have a number of amendments to improve its operation, but the significance of the changes that this bill will make cannot be overstated. The Respect@Work report was clear that current laws present all kinds of barriers to workers calling out harassment: cultural attitudes, costs, risks and the genuine fear that they'd be targeted at work through further harassment or loss of hours. This bill goes a long way towards removing those barriers.
Firstly, the positive duty: this was the centrepiece of the Respect@Work report, but it was something that the previous government and some members of the business community resisted. They claimed it was unnecessary because workplace health and safety laws already included duties to ensure workplace safety. Well, those were clearly not working. If they were, we wouldn't have seen and wouldn't still be seeing more than a third of workers experience sexual harassment. Those are just horrific numbers. Eliminating workplace sexual harassment will take a big cultural shift, and a positive duty to create and maintain a safe workplace is the best way to drive that cultural shift. It shifts the focus from individual employees having to report bad behaviour to individual employers having to work out what to do about it. It requires employers to proactively prevent discrimination and harassment in their workplaces. Without such a positive duty, we're stuck with the current reactive, adversarial victim-complaint approach that's failed so many people, mostly women, people of colour, people with disability or queer folk.
It won't be a one-size-fits-all response. The steps taken by each workplace will depend on their size and their nature, but every workplace, once this bill passes, will have a responsibility to do what is needed to keep staff and clients safe. We'll move an amendment proposing that employers be required to consult with their staff about the specific measures needed in their workplace to achieve that. The Human Rights Commission, a body with clear expertise on protecting human rights and avoiding workplace discrimination, will prepare guidance for employers and will have powers to investigate and take action when needed. Employers will be given an opportunity to set out a plan for what they'll do, but the commission can take compliance action if the business fails to make progress. We would like the compliance notices to be published in order to hold workplaces to account and provide guidance to other workplaces, and I'll be moving an amendment along those lines as well. The goal is supporting employers to be better employers who listen to their staff and respond, but with a compliance framework that allows strong action to be taken when employers don't lift their game.
I want to speak now on the hostile work environment provisions. Akin to the positive duty provisions, the bill takes a workplace-level approach to cultural change, which is good. Sexual harassment is more likely to occur where a workplace environment is sexually charged or hostile, even if the conduct is not directed at a particular person. There are many examples: mine sites where women are habitually given menial tasks and where predatory behaviour is ignored; hospitality businesses where women are expected to wear skimpy clothing and to put up with lecherous customers; or lunchrooms where sexist, racist, or homophobic jokes are told or laughed at by senior staff or where anti-trans posters are displayed. The 2018 national survey of sexual harassment found significantly higher rates of harassment in the fast food and retail industries, particularly for young women. This bill introduces an offence of creating and maintaining a hostile work environment. It creates a clear obligation on employers and staff to identify cultures, work practices, uniforms and office set-ups that could create an environment in which harassment is facilitated, condoned or ignored. We strongly support this change. However, we'll be proposing an amendment to ensure that the provisions operate as they are intended to.
The bill makes two significant changes to address systemic harassment and relieve the burden on individual workers to pursue complaints. It gives the Human Rights Commission powers to have a look at systemic problems and practices, and it allows representative bodies to take action on behalf of workers. Examining systemic behaviour across a sector or workplace helps to identify the root causes of discrimination affecting many employees, rather than requiring one person to stand up to their boss, run the gauntlet of the legal system and risk their reputation, their mental health, their job and their finances. Many workers want the harassment to stop but they don't want to be named as the victim. They want their workplace to be safe for them and others but they don't want to have to go through a court process and the emotional and financial toll that it takes. Representative applications provide a way for genuine cases to be heard and the employees to get justice without that personal toll.
The bill also introduces a welcome protection against victimisation of workers who make complaints, another step towards making workers feel confident to come forward. These are good changes, and we support them. In fact, we think that they should be replicated across all discrimination laws, and I'll be moving a second reading amendment in due course urging the government to progress that. The positive duty to provide a safe workplace should apply to all protected attributes so that employers have to take proactive action to prevent discrimination on the basis of age, race and disability as well as gender.
Now I want to talk about costs. One of the significant barriers to workers taking action against colleagues or bosses—and it's often the most significant one—is the financial risk involved. The Women's Legal Centre says:
Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise that many women decide not to take this gamble.
The decision to make a complaint against someone in your workplace will always be difficult. Costs should not be the determining factor in whether workers are prepared to call out bad behaviour and insist on a safe workplace. The costs model that was proposed in this bill was intended to address this issue. However, more than 100 experts—victims-survivors, lawyers, unions, advocates—have raised concerns that the alleged fix would still act as a deterrent and, for some, would make it worse. Many women would still fear that making a complaint could be both traumatic and financially risky. Without the ability to be awarded costs if the complainant is successful, women would also not be able to attract the services of no-win no-fee lawyers, and we know that justice is not cheap in this country—more's the pity. That deterrence could be the difference between a harassing boss being held to account or being allowed to continue to harass other employees. Those 100 experts had a better solution—an equal access cost model that would protect complainants against the risk of costs if they lose but allow them to recover costs where the court finds that their employer or colleague has broken the law. We strongly support that model.
We were going to move an amendment to give effect to that model, but we've heard the government's concerns that having that model just for sexual harassment claims would put them on a different footing to other discrimination complaints. We would like to see the equal access costs model apply across the board, but we recognise that it's important to get this right, so we're very pleased that the government agreed with the Greens to pause those costs changes. They won't be moving them. We'll come to those when the government move their own amendments. Instead, they'll now conduct a full review of costs provisions, in consultation with all of those who raised concerns. We will continue to push to make sure that workers can access justice and can actually enforce these new rights that have been given to them. We're hopeful and confident that the review will ultimately end up with a more effective and equitable cost model that allows workers to get justice.
The bill also extends reporting obligations under the Workplace Gender Equality Act to the Commonwealth public sector. This is a very welcome move. Measuring data and monitoring progress is the key to closing the gender pay gap that, sadly, still persists across all industries. The Greens have long called for gender pay gap reporting to apply to the public sector, and we will continue to push for robust and transparent reporting across more workplaces and across more measures, including better data on the prevalence and resolution of sexual harassment complaints and the use of nondisclosure agreements to silence victims-survivors.
I'll talk briefly now about the review of the bill. This bill is a very significant and welcome change to the way that we'll approach harassment and discrimination in workplaces across Australia. It's a real opportunity to drive cultural change, and we need to know if it works. Given the scale and the importance of the changes, and given the diversity of workplace environments and employee experiences, it's important that we review how these changes are working in practice and whether they're achieving the aims of the Respect@Work report. We need to monitor how effectively the provisions of the bill are driving the cultural change that's needed to reduce the shocking levels of harassment in workplaces across the country and assess what additional reforms or support might be needed. So I, along with Senator Tyrrell and Senator Lambie, will be moving an amendment to require such a review. I'm pleased that the government has indicated support for that amendment.
Finally, I'd like to talk about funding. As I've said, this bill is a critical opportunity to drive cultural change, but that opportunity will be undermined without adequate funding to the Australian Human Rights Commission, who will undertake the extra powers and duties under this bill. I was pleased to see the budget dedicate additional resources to the Human Rights Commission, but this must be kept under regular review to make sure that it's enough for the commission to do its job. The proposed statutory review will look at that issue, but I urge the government to heed any calls from the commission regarding the money it needs.
This bill could also be undermined if workers and employers can't access support and advice about their rights and responsibilities under the bill. We need a well-funded, functioning network of working women's centres to provide practical advice and support to employees experiencing harassment. Independent, expert, community-based, trauma-informed services are essential to the successful implementation of this bill. The Greens are really proud to support this bill, and we think our amendments would make a good bill even better. Workers across Australia, particularly women, deserve to be safe, respected and listened to.
I want to conclude my remarks by commending the work of the Sex Discrimination Commissioner, Kate Jenkins, who drafted this very prescient report, which is now finally being legislated in full, and who has also done incredible work looking at parliamentary workplaces. She's finishing up her term soon, and I want to place on record a tribute to the quality of her work, which has had multipartisan support and which indeed will make many women safer in workplaces across the country. Thank you, Commissioner Jenkins.
I move the second-reading amendment on sheet 1713 circulated in my name:
At the end of the motion, add ", but the Senate:
(a) acknowledges the significance of the hostile work environment and positive duty provisions in this Bill in strengthening workplace culture; and
(b) calls on the Government to urgently consider the creation of similar obligations under the Racial Discrimination Act 1975, the Age Discrimination Act 2004, and the Disability Discrimination Act 1992".
Once again I find myself following Senator Waters on a topic in which I think we find much overlap in our views and beliefs. I thank you for your contribution and the contribution of others today. I'm also rising to speak to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. Bringing this bill to us today is a landmark moment. It marks a significant step in fulfilling our election commitment to implement the recommendations of the Respect@Work report. I am deeply proud to be part of a government which is taking these issues seriously, which is backing up the report recommendations with a bill before us today, and I'm delighted to have an opportunity to contribute to the debate.
The bill before us will place a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible. It will expressly prohibit conduct that results in a hostile workplace environment on the basis of gender. It will ensure Commonwealth public sector organisations are also required to report to the Workplace Gender Equality Agency on its gender equality indicators. I note the government amended the bill in the other place to make it clear that duty-holders are required to take reasonable and proportionate measures to eliminate as far as possible third parties, such as customers, subjecting their employees to sexual and sex-based harassment. It will also provide the Australian Human Rights Commission with new powers to enforce the positive duty and help make sure employers are fulfilling their obligations. This means that in industries like retail and hospitality, where workers are already at risk of harassment by customers, due to the front-facing nature of their roles, employers under this legislation will be required to take measures to protect their staff.
I acknowledge the work of Sex Discrimination Commissioner Kate Jenkins and the commission in producing this landmark report and the work done since to implement the report's recommendations, including through the Respect@Work Council. As the Attorney-General acknowledged in his speech to the House, this bill would not have happened without the individuals and organisations who contributed their stories, their advocacy and their expertise to inform the findings and the recommendations in the Respect@Work report. They too should be proud of the bill which is before us today.
Every Australian has the right to feel safe and respected at work, no matter their gender, age, race or religion. The national inquiry into sexual harassment in Australian workplaces found that one in three people had experienced sexual harassment at work in the preceding five years, with women experiencing higher rates of harassment than men. Aboriginal and Torres Strait Islander Australians, members of the LGBTQI+ community and people with disability are, on average, more likely to experience workplace sexual harassment. Workers, no matter where they work, deserve to go to work each day without fear of being harassed, and the perpetrators of harassment must be held to account.
This bill provides a framework for holding workplaces and communities accountable for failures to tackle harassment that occurs under their watch—well overdue. This framework is especially important in industries where workers are at higher risk of harassment and abuse, like retail and hospitality. A survey conducted by the Human Rights Commission and the retail workers union, the SDA, in 2019 showed that 42 per cent of all survey respondents had experienced sexual harassment in the previous five years. For women, it was even higher, with 46 per cent of the women who participated in the survey reporting sexual harassment. And for young women, it is higher again, with 51 per cent of members aged 15 to 17 years having experienced sexual harassment at work. The harassment came from customers, managers, peers and business owners. They are shocking statistics that speak to a workplace culture that has to change.
I remember being one of those statistics as a young retail and hospitality worker. You never forget it. You never forget the feelings that start with embarrassment and awkwardness, which grow into a sense of discomfort and then fear about heading back into your workplace. From the decisions you have to make about whether to seek another job, whether there is another job available, that anxiety keeps you up at night because you do not want to go back to work tomorrow because you know the harassment that you will experience and endure. No-one should have to endure it.
This bill represents a paradigm shift in how public policy and the legislative framework will support those in our community experiencing sexual harassment and discrimination at work. It says loudly and clearly to all workers that they deserve to be safe at work. Change is hard but it is essential, because sexual harassment, just like violence, is not inevitable; it can be prevented. In this bill, we are taking steps to deliver change. I commend the bill to the Senate.
At the outset, can I just commend Senator Smith for sharing her personal experiences in relation to this difficult topic. I think that shows great heart and the senator should be commended for it. Before I make some comments on the bill, I just want to reinforce two points which Senator Waters made. The first is in relation to cost. This is a very complicated area, and I congratulate the government for reflecting further on the matter. Because it could well be that, as well intentioned that the cost provisions as originally proposed in this bill were, they could have led to a worse situation insofar as there was uncertainty for legal professionals who might extend their services on a no-win, no-fee basis. They were concerned that there was a lack of certainty as to whether or not costs would flow from the event. I think these are really, really important matters which need to be carefully reflected upon. The other point that needs to be reflected upon is that this bill covers all workplaces, so it covers all businesses, all employers, from the multinationals with huge human resource departments and in-house legal staff all the way to the sole trader. That needs to be reflected upon in relation to costs.
The second point Senator Waters made, which I would like to commend, was in relation to the resourcing of the Australian Human Rights Commission. This is a big task that this parliament is putting on the Australian Human Rights Commission, to take on the enforcement and compliance role with respect to whether or not employers all over the country are discharging their role with respect to the positive duty. I know, from my experience of working in the Legal and Constitutional Affairs Committee and putting questions to Ms Jenkins and also the President of the Australian Human Rights Commission, that the Human Rights Commissioner has an appreciation of the magnitude of that task. But they will need to have appropriate resourcing in order to discharge those important obligations.
I do serve on the legal and constitutional affairs committee, and I did make some additional comments in relation to the bill. I'd like to touch upon three of those points in relation to these comments. I fully, 100 per cent, support the imposition of the positive duty on employers. There is absolutely no question about that, and I agree with Ms Jenkins when she explained:
… this will be a powerful tool in promoting broad systemic and cultural change around sex discrimination and sexual and sex based harassment in the workplace.
I did raise concerns with respect to the technical wording of the positive duty, and the main reason for that is that there is a disconnect between two parts of the clause. In one part of the clause there is an imposition of a duty upon employers to take 'reasonable and proportionate measures to eliminate', and that is a fair articulation. There's some consideration given to whether or not you're dealing with a small business or a large business and the capacity of the business to put in place measures, so I think the phrase 'reasonable and proportionate' is appropriate. But then the clause says, 'to eliminate as far as possible sex discrimination, sexual harassment, victimisation and other relevant unlawful behaviour'.
On one hand we are saying 'reasonable and proportionate measures' and on the other hand we're saying 'eliminate as far as possible' so there is somewhat of a disconnect between those two notions. I note it appears from the explanatory statement that that is not the intention of the bill. The intention appears to be to replicate the principles in terms of vicarious liability. I note under section 17 of the Work Health and Safety Act and indeed under amendments proposed to the fair work amendment bill 'reasonableness of steps taken' is the benchmark, so I really do query why we've introduced the phrase 'as far as possible'. There does appear to be a disconnect in relation to the drafting, and it would be good if that could be resolved.
The second point I wanted to make was to reaffirm the importance of the Australian Human Rights Commission in providing guidance to all the different employers who are going to have to discharge this positive duty. In many cases, these are very complicated workplaces, and this duty extends to protecting their staff from acts of sexual harassment perpetrated by customers, clients, all the people their staff engage with, so one can well imagine that the challenges faced by, for example, someone who is managing a hotel, a pub, a nightclub are going to be somewhat different from someone who is managing, say, a news agency. The Housing Industry Association raised particular concerns with respect to construction sites, where you've got different employers and subcontractors coming on to a site along with all sorts of people who are employees of all sorts of organisations coming together on a workplace. It's very, very important, I think, that the Australian Human Rights Commission articulates some quite clear bespoke guidelines for employers in different situations so that employers know clearly what they need to do in order to discharge their obligations. Again, from the questions I asked of the Australian Human Rights Commission, they are cognisant of the need to do that, and I look forward to seeing how they discharge that obligation.
The last point I'd like to make is in relation to an additional comment I made saying that I could see some merit in the Fair Work Ombudsman having a role in relation to enforcement. The main reason I could see the benefit of that was the Fair Work Ombudsman currently has nearly a thousand employees all over Australia, so they can get access to worksites very easily. They're on worksites for other purposes, so whilst they're on a worksite for purpose A, they could potentially be looking at whether or not an employer is discharging their positive duty with respect to taking reasonable steps to protect staff from sexual harassment. I could see some merit in the Fair Work Ombudsman discharging that enforcement role, given the footprint they have at the moment across Australia in terms of infrastructure and staff. I do have confidence that the Australian Human Rights Commission understand that they need to mobilise additional resources in order to discharge their role in enforcement. With those comments, I commend the bill to the Senate.
I rise to speak to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, and I'd like to associate myself with the comments made by my wonderful colleague Senator Waters. The bill implements those recommendations of the Respect@Work report which the previous government chose to ignore, including the introduction of a positive duty on employers to take reasonable and proportionate steps to eliminate sex discrimination in their workplaces and the prohibition of conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. The bill also provides the Australian Human Rights Commission with a function to inquire into systemic unlawful discrimination.
Imposing a positive duty on employers to prevent sexual harassment, sex discrimination and victimisation, with accompanying enforcement powers, is so important. The Respect@Work inquiry found that the current system places a heavy burden on individuals to make a formal complaint. The positive duty on the employer to create and maintain a safe workplace would be a step towards achieving a cultural shift and signalling to workers that their employers are invested in actually creating a safer workplace for all of them. As the Human Rights Commission has said, positive duty would be a powerful tool to promote broad, systemic and cultural change that sits outside of the current adversarial framework of discrimination law, so it is really good to see this introduction of positive duty on employers through this bill.
However, the bill should do more, as described by my colleague Senator Waters. As noted in the Greens additional comments to the Senate inquiry into this bill, a core finding of the Respect@Work report and other work of the Australian Human Rights Commission was that sexual harassment and discrimination are often intersectional, with compounding effect. Though specifically targeted at sexual harassment and sex based discrimination, the bill really does present such a good opportunity to require employers to ensure their workplace is free from discrimination on any grounds. That opportunity should have been taken up by the government. There is no reason the positive duty and hostile work environment provisions should apply to preventing discrimination only on the basis of sex. I know that Senator Waters will be moving a Greens amendment for similar obligations to extend to other protected attributes such as race, age and disability.
The Greens are supporting the bill of course because it represents significant progress for women around the country who have so courageously spoken their truth about the harassment, bullying and abuse that they have been subjected to and who have made it clear in no uncertain terms that they will not rest until it stops. This bill is the product of significant effort, investigation and analysis into sexual harassment and other forms of gendered violence at work. The National Inquiry into Sexual Harassment in Australian Workplaces was announced by the previous government in June 2018 in the context of the Me Too movement and global recognition of the serious harm caused by the problem of sexual harassment in workplaces. The inquiry, conducted over 18 months by the Sex Discrimination Commissioner, Kate Jenkins, was a world first. The 930-page report is comprehensive, thorough, well researched and informed by extensive consultations with a wide range of stakeholders. It made 55 practical and carefully considered recommendations for reform to fix our broken system, all of which the Greens support.
As a proud feminist, I celebrate the work we have done in this country to address sexual harassment and other forms of gendered violence at work. We must continue this work, but we should be equally determined to eliminate other forms of systemic and structural discrimination in Australian workplaces—in particular racism, homophobia, transphobia and ableism. The Respect@Work report noted that, alongside gender inequality, other inequalities experienced by groups with less power in society also contribute to the sexual harassment of people from these groups and that addressing sexual harassment requires an intersectional approach. An intersectional approach to sexual harassment sees gender as intersecting with other forms of discrimination and systems of power. The report found that workers were more likely to experience sexual harassment in the workplace if they were LGBTQI+, First Nations, people from culturally and linguistically diverse communities and migrant workers.
As those in the chamber would know, the need to address racism is particularly close to my heart. It is a personal lived experience of mine and so many people in the community that I know. Racism compounds the sexism that women of colour and First Nations women experience at work and obviously in society at large. Unfortunately, in Australia, a nation built on genocide and racist government policies such as the White Australia policy, there is a deep reluctance to talk about racism and the persistent denial of the scale of the problem. But racism is pervasive in Australian workplaces.
In response to the global push for racial justice in 2020, Diversity Council Australia prepared a report titled Racism at Work. The report surveyed 1,547 workers across various sectors and found 88 per cent of respondents agreed racism is an issue in Australian organisations, and 93 per cent of respondents agreed organisations need to take action to address it. Only 27 per cent of survey respondents said that their organisations were proactively preventing workplace racism. Research respondents told of being singled out by their colleagues because of their race and being subjected to derogatory names, harmful stereotypes and constant taunting. They also told of having complaints downplayed or dismissed by management.
Racism in Australian workplaces also manifests in many other ways, such as businesses disproportionately filling fixed-term contracts with people of colour or failing to promote deserving people of colour. This racism in workplaces does cause immense personal harm, just as sexism and other forms of discrimination do, and for many of us this intersection of racism and sexism really heavily compounds disadvantage, harm and discrimination. So the government really does need to start acting on preventing such harm from intersecting forms of discrimination in all our workplaces and in our society.
I rise to speak on behalf of the Jacqui Lambie Network. We have circulated an amendment on sheet 1700, but, for the benefit of this chamber, we would like to advise we are no longer intending to move it. There's another amendment that we are intending to move on sheet 1702, but I'll talk about that later.
First, I want to talk about the bill. Senator Lambie and I welcome the introduction of the government's bill, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, which implements the Australian Human Rights Commission's Respect@Work report. This legislation is long overdue. The Respect@Work report was published over two years ago, and for two years we've known that women experience higher rates of workplace sexual harassment than men. For two years we've known that certain groups of workers experience sexual harassment at a higher rate than others. Workers under 30 are copping it hard. Workers with a disability are copping it hard. And nobody should be copping it at all. For two years we've also known that sexual harassment takes place in certain workplace settings, like workplaces where there's a high level of contact with third parties and workplaces with strong hierarchies. These facts are disturbing. What's also disturbing are the statistics behind this.
The Respect@Work report looked at the data from the 2018 fourth national survey on sexual harassment in Australian workplaces. The survey results revealed that 33 per cent of people who had been in the workforce in the previous five years experienced workplace sexual harassment—that's one in three. And, of the one in three, 80 per cent never reported it. The survey also revealed that 23 per cent of Australian women and 16 per cent of Australian men had experienced workplace sexual harassment in the previous year. Clearly, there's a massive problem with sexual harassment in the workplace.
The Respect@Work report made 55 recommendations that will help address these problems. Labor told us before the election that they'd fully implement all of these recommendations, and I think that's the right thing to do. One of the recommendations is to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sexual discrimination, sexual harassment and victimisation. What does this mean? Well, employers already have a workplace health and safety responsibility to prevent sexual harassment, and this comes under the broader duty to eliminate or manage hazards and risks to a worker's health. But the Respect@Work report highlighted how the current WHS framework is not enough. At the moment it is focused on harassment that has already occurred. This bill will require workplaces to create a safe place to work, free of sexual harassment. This means people can feel safer at work before they're given a reason not to. Another recommendation is to empower the commission to assess compliance and enforce this positive duty. This means the commission can make sure employers comply with their legal obligations. I'm happy to see the recommendations of the Respect@Work report have been supported by the government and appear in this bill.
We're also happy the new functions the commission will get under this bill were fully funded in the budget. I'm a huge supporter of the Australian Human Rights Commission. They do important work on a shoestring budget and they could be doing more, which is the tragic bit about this. The reason we need this bill is we need the commission to be able to do more. If it's going to do more, it's got to be funded to do more. That's something we want to see happen. We're not going to push for it now, but it's something we will continue to raise with the government. While we are happy with the bill, it's because we are happy with how it looks on paper. It's one thing to look good on a piece of paper. It's another thing to work when it hits the factory floor.
That's why Senator Lambie and I, together with the Greens, are proposing an amendment for a review of the changes this bill will make. This review will include the new positive duty and the additional functions of the commission. It also includes looking at the capacity of the commission to undertake its new functions. These powers are new, and we hope we get them right the first time. But, as I have said before, we are going to make mistakes. Sometimes groundbreaking changes break more than just ground. We need a statutory review in place to see if this bill actually works how we want it to. We need to know if it's operating as intended. If not, that's fine; I'm happy to make further changes down the track if we need to. What's important is that we get this right, and the only way we will know for sure if the changes we make in this place are right is if we take the time to check in and check under the hood to see how these changes are playing out in the real world.
The review we are proposing within our amendment is a flexible one, and I'm happy that this has broad support. The review will be independent, and it's set to take place anywhere between two and three years after the commencement of these changes. Usually, a review is done no later or no earlier than a certain period. But we're proposing something different here; we've given the government some flexibility so that the review can happen when it's most appropriate. We want to make sure the commission will have had the time to do its important work of educating employers on this new positive duty. We also want to make sure that, if an employer is not meeting its duty to prevent sexual harassment in the workplace, the commission has had the time to use its enforcement powers. We want to make sure that the legislation is tested in the courts. This all may take two years to play out or it may take three, and that's why we've included some flexibility in the review. Basically, we want to make sure that this bill is working well for all parties involved—employees, employers and the commission. So that's our amendment.
There's also the issue around costs. There's been a bit of talk about the cost provision in the bill. We've heard from legal centres who represent victims of sexual harassment that this wording would stop costs being a barrier to pursuing an action. But the government didn't adopt this wording in the bill. The government had proposed a default position where parties bear their own costs. The government's proposed cost provisions were an important change to the status quo. But those costs of bringing an action can still be big. They can be huge if the other party is all lawyered up and happy to drag out proceedings. We weren't alone in being concerned about this; we heard from those same legal centres that they had concerns with proposed cost provisions in the bill. They were concerned this would still be a barrier to justice. That's why we proposed an amendment that adopted the recommendation in the Respect@Work report. This is what the member for Kooyong did in the other place, and we were prepared to put forward amendments that mirrored hers because we had the same concerns.
The government has heard these concerns; the Attorney-General and the Minister for Women published a media release about this today. The government has decided to take this part out of the bill. They've told us they're going to consult a little more on this. The Attorney-General's Department will conduct an immediate review, which will be completed by May next year. They want to get this right. We want this too. And that's why we're happy to not proceed with our amendment to the cost provisions. We're happy that the government is taking the time to listen to the concerns of the legal centres and the people they represent. We're happy that they've committed to conducting a departmental review and implementing the recommendations of that review as quickly as possible. We will see the legislation that gives effect to those recommendations here next year. I'm looking forward to working together with the government on this issue next year so that we can get it right, so that cost is not a barrier to anyone seeking justice. Your rights aren't conditional on your bank balance. They're yours all the time.
We can't accept a world where it's fine to harass somebody so long as they're poor. That's why costs can't be a barrier, and that's what they'll be so long as justice has a price tag.
I thank all senators for their contributions to the debate on the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. This bill is obviously a significant milestone in delivering on the government's commitment to fully implement the Respect@work report. It represents a historic shift in how public policy and the legislative framework support people who experience sexual harassment and discrimination in the workplace.
I thank all of those who have been involved in the development of this, whether it be Sex Discrimination Commissioner Kate Jenkins or the members of her council, and I particularly thank those survivors who came forward to share their personal experiences, which have led to this terrific change. I am conscious that there are a lot of people who have been waiting a long time for these changes to be made, so I will leave my summing up there so that we can get into the committee stage.
Question agreed to.
Bill read a second time.
by leave—I move government amendments (1) to (5) on sheet RV162 together:
(1) Schedule 2, item 8, page 8 (line 15), at the end of the heading to subsection 47C(4), add "by any person".
(2) Schedule 2, item 8, page 9 (line 7), omit "steps", substitute "measures".
(3) Schedule 2, item 8, page 9 (after line 9), at the end of section 47C, add:
Other duties not limited or otherwise affected
(7) This section does not limit, or otherwise affect, a duty that a duty holder has under:
(a) the Work Health and Safety Act 2011; or
(b) a law of a State or Territory that deals with work health and safety.
(8) Paragraph (7)(b) does not limit the operation of section 10 or 11.
(4) Schedule 2, item 23, page 16 (after line 9), after subsection 35H(1), insert:
(1A) The application must be made within:
(a) if the compliance notice has been reconsidered under section 35G—21 days after the person was given a notice of a decision under subsection 35G(6) relating to the compliance notice; or
(b) otherwise—21 days after the day the compliance notice was given to the person.
(5) Schedule 5, page 27 (line 1) to page 29 (line 28), to be opposed.
I table a supplementary explanatory memorandum relating to the government amendments.
The opposition will support these amendments, and I appreciate the government working with the opposition in relation to these changes. These changes are important for providing certainty for Australians and Australian employers. The amendments will provide clarity and certainty for businesses and employees on their rights and obligations that they are not competing between the antidiscrimination laws and the work health and safety laws. We're also supportive of further clarifying the application period for the compliance notices.
The amendments on sheet RV162 are technical refinements to provide greater certainty and clarity on the operation of the bill and to allow for additional consideration of the proposed reforms to cost protections.
To outline each of those amendments, amendment (1) relates to third parties in positive duty. This amendment would add the words 'by any person' to the end of the headings of subsections 47C(4) and 47C(5), amending them to read 'other conduct towards employees and workers by any person'. The purpose of this amendment is to clarify that subsections 47C(4) and 47C(5) cover conduct engaged in by third parties or other persons such as customers and suppliers. This means that an employer or person conducting a business or undertaking must take measures to protect their employees or workers from certain conduct by third parties such as customers.
The second amendment would make a technical correction to the current language used in paragraph 47(6)(c) of the Sex Discrimination Act as inserted by the bill. Amendment (3) would add an additional subsection to the positive duty in section 47C of the bill to provide that it does not limit, or otherwise affect, a duty that a duty holder has under Commonwealth and state or territory health and safety laws. And amendment (4) would provide an explicit time frame for a person to seek judicial review of a compliance notice that has been issued by the Human Rights Commission in relation to noncompliance with the positive duty. Amendment (5) is in relation to cost protection. This amendment would remove schedule 5 of the bill which was going to insert a cost protection provision in the Australian Human Rights Commission Act.
I rise on behalf of the Australian Greens to indicate that we will be supporting these government amendments. They're all of a technical nature. I particularly welcome item 1, which extends the positive duty obligations on an employer to address improper and harassing behaviour by customers or clients or contractors. That's a very meaningful extension and a very important one.
In relation to item 5, as I mentioned earlier, we're really pleased that the government has dropped their proposed cost changes. There was real concern that this would have put barriers in the way of people accessing and enforcing these new rights, and we very much welcome the agreement that the government reached with the Greens to look more closely at these issues and, indeed, to look at potentially making access to justice more accessible for all protected attributes not just for harassment on the grounds of gender. That's why we won't be moving the joint amendment between the Greens and the Jacqui Lambie Network on sheet 1700 today—because the government has now dropped their cost provisions and has agreed to expedite a review to, ideally, come to an approach where, if a complainant is successful, they can get the cost awarded, but, if they're not successful, they don't face that risk of having to pay their employer's legal costs. That's the ideal scenario that many experts have pushed for, and that's what we hope will be found in the review. Of course, we'll come back to this chamber and, ideally, legislate those stronger provisions in due course.
The question is that government amendments (1) to (4) on sheet RV162 be agreed to.
Question agreed to.
The question now is that schedule 5 stand as printed.
Question negatived.
by leave—I, and also on behalf of Senator Lambie and Senator Waters, move amendments (1) and (2) on sheet 1702:
(1) Clause 2, page 2 (table item 1), omit "3", substitute "4".
(2) Page 2 (after line 11), after clause 3, insert:
4 Review of operation of amendments
(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act.
(2) Without limiting subsection (1), the review must consider whether:
(a) the amendments made by this Act are operating effectively; and
(b) the Australian Human Rights Commission has capacity to carry out the functions relating to compliance with the positive duty in relation to sex discrimination in Division 4A of Part II of the Australian Human Rights Commission Act 1986,as inserted by Part 2 of Schedule 2 to this Act.
(3) The review must commence as soon as practicable after the end of the period of 2 years after the day Division 2 of Part 2 of Schedule 2 to this Act commences and, in any event, not later than 3 years after that day.
(4) The persons who conduct the review must give the Minister a written report of the review as soon as practicable and, in any event, not later than 9 months after commencement of the review.
(5) 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.
These are joint amendments between the Greens and the Jacqui Lambie Network. I thank the government for their indication that they will support these amendments. These amendments would require a comprehensive review of the operation of the act, not just a review of the costs provisions—which we've also reached agreement with the government on—but a broader review of the operation of the whole act to make sure that it is delivering on its intentions, to make sure that employers and employees have the support and guidance that they need for the operation of these provisions. We commend these amendments to the chamber.
I can confirm that the government will be accepting these amendments.
The coalition will support these amendments. An independent review, with a report to the parliament, will ensure we can make any changes necessary to ensure any deficiency in this amendment legislation is identified and puts forward a pathway to address these potential issues. It is important these significant changes are reviewed for how they are operating, and, for this reason, the coalition will be supporting the review.
Question agreed to.
by leave—I move amendments (1) to (5) on sheet 1712 together:
(1) Schedule 1, item 2, page 3 (lines 11 and 12), omit "subjecting persons to workplace environments that are hostile on the grounds of sex", substitute "substantially contributing to the creation or maintenance of workplace environments that are hostile on the grounds of a protected attribute".
(2) Schedule 1, item 3, page 3 (before line 15), before the definition of workplace, insert:
protected attribute means a person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding or family responsibilities.
(3) Schedule 1, items 4 to 6, page 3 (line 17) to page 5 (line 4), omit the items, substitute:
4 After section 8
Insert:
8A Workplace environment that is hostile for 2 or more reasons
For the purposes of this Act, a workplace environment may be offensive, intimidating or humiliating to persons who have a protected attribute by reason of:
(a) the persons having the protected attribute; or
(b) a characteristic that appertains generally to persons who have the protected attribute; or
(c) a characteristic that is generally imputed to persons who have the protected attribute;
if it is offensive, intimidating or humiliating by reason of 2 or more matters that include the protected attribute or the characteristic, whether or not the protected attribute or the characteristic is the dominant or substantial reason.
5 At the end of Division 3 of Part II
Add:
28M Hostile workplace environments
(1) It is unlawful for a person to substantially contribute to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute.
(2) A person substantially contributes to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute if:
(a) the person engages in conduct in a workplace where the person works; and
(b) a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to persons who have the protected attribute by reason of:
(i) the persons having the protected attribute; or
(ii) a characteristic that appertains generally to persons who have the protected attribute; or
(iii) a characteristic that is generally imputed to persons who have the protected attribute.
Note: See also section 8A in relation to workplace environments that are offensive, intimidating or humiliating for 2 or more reasons.
(3) For the purposes of subsection (2), the circumstances to be taken into account include, but are not limited to, the following:
(a) the seriousness of the conduct;
(b) whether the conduct was continuous or repetitive;
(c) the role, influence or authority of the person engaging in the conduct;
(d) any relevant workplace policies or guidelines in effect in the workplace;
(e) any other relevant circumstance.
Note: In relation to paragraph (b), depending on the circumstances, a person may substantially contribute to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute even if the person's conduct is not continued or repeated.
(4) In this section:
conduct includes:
(a) making a statement, whether the statement is made orally or in writing; and
(b) an omission.
6 At the end of paragraphs 48( 1)( gaaa), (gaa) and (gc)
Add:
; or (iii) substantially contributing to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute;
(4) Schedule 2, item 8, page 9 (after line 8), after paragraph 47C(6)(c), insert:
(ca) whether the duty holder has conducted meaningful consultation with:
(i) if the duty holder is an employer—the duty holder's employees; or
(ii) if the duty holder is a person conducting a business or undertaking—workers in the business or undertaking;
for the purposes of ensuring that the duty holder effectively addresses key risks and behaviours relating to conduct covered by subsection (2) or (4);
(cb) whether the duty holder has complied with any guidelines prepared and published by the Commission under section 35A of the Australian Human Rights Commission Act 1986;
(5) Schedule 2, item 23, page 14 (after line 30), at the end of section 35F, add:
(4) The President may publish a notice given to a person under subsection (1) on the Commission's website after:
(a) unless paragraph (b) applies—the end of the period of 21 days after the day the notice is given to the person; or
(b) if the person requests the President to reconsider the notice under section 35G—the time the President gives written notice of a decision under subsection 35G(6).
I will briefly outline the nature of these amendments. Amendments (1) to (3) pertain to amending the hostile workplace environment provisions. As drafted, the bill's hostile workplace environment provisions apply primarily to interactions between individuals. One person must directly subject another person to the hostile environment. But requiring this nexus fails to clearly target those who create or perpetuate a hostile work environment, as opposed to those whose behaviour is encouraged by that environment. Individuals who discriminate or harass will already be captured by other sections—28A and 28AA—so, unless it's made clear that section 28M goes beyond individuals to those creating the environment in which misconduct is fostered, 28M will not achieve its aims. We think this is an amendment that gives effect to the genuine intent of the Jenkins recommendation. It's clear that strong and clear hostile work environment provisions would assist the bill to achieve its key aim. So we particularly commend amendments (1) to (3). I understand that we will not be receiving support for those amendments, which is precisely why we need a review of this bill. So I'm pleased that the previous amendments did pass. I flag that we'll be progressing clarity-style amendments along these lines when that review is underway.
I will briefly outline what amendment (4) does. The steps needed to create a safe workplace will differ between workplaces and industries. In our view, staff are best placed to identify the key risks in their workplace and how to address them. For this reason, staff should be consulted as part of the positive duty obligations, to ensure that what an employer is doing is targeted and is effective. If employers are serious about making workplaces safer, they do actually need to talk to their staff about particular risks in their workplace and what should be done to address them. Many employers will do that. Sadly, others will not. Employers need to report on the actions that they take, and they need to regularly review whether those actions are actually working. Anything else is just lip-service. That's why we've drafted our amendments to that effect, to require employers to talk with their staff and regularly report on if the positive duty is properly being implemented. The bill requires the Human Rights Commission to publish guidelines on how to comply with the positive duty, so our amendment also gives those guidelines some teeth by requiring the employer and the commission itself have regard to those guidelines in determining whether an employer has met that duty.
The Human Rights Commission requested the change in amendment (5) in the inquiry on the bill. The Human Rights Commission can issue compliance notices to employers that they believe are not meeting their positive duty obligations. The employer can then do nothing, they can dispute the notice or they can respond to the notice and enter into an enforceable undertaking setting out what changes they will make. The AHRC can currently publish those enforceable undertakings. But they are not permitted under this bill to publish those compliance notices, and it's our view that allowing the commission the discretion to publish compliance notices would improve the transparency for employees and the guidance for other employers. It's important that employers know that these changes have teeth and that people are watching, and if the commission serves a compliance notice, it is in the public interest, in my view, for people to know about that. That's why we think the commission should be given the discretion to publish those compliance notices, not just the subsequent enforcement notices when the compliance notices have been ignored. So we commend those amendments to the chamber.
The government will not be accepting the amendments circulated by Senator Waters in relation to these provisions. Comprehensive reasons for the government's position were given in the House, and I would refer people to those reasons for more detail. But in brief, the government considers the hostile work environment amendments as not necessary, as substantial contribution to the creation or maintenance of a hostile work environment would already be covered by what it means to subject someone to a hostile work environment. The amendments would also broaden the protected attributes that would be covered by the prohibition on hostile work environments, and this is beyond the scope of what was recommended by the Respect@Work report and beyond the scope of this bill. This bill is really about delivering the Respect@Work report recommendations, and that's what we're doing. But we're not going beyond that, which is what this amendment seeks to do.
The amendment on positive duty matters to be taken into account would add two further factors to be considered by the Human Rights Commission when determining whether someone has complied with the positive duty. These amendments are not necessary. The commission's guidelines would inform their assessment of compliance with the positive duty. It's not necessary to legislate for this.
Finally, the amendment put forward in relation to publication of positive duty compliance notices would provide the President of the Human Rights Commission with the power to publish a compliance notice on the commission's website. This amendment is not supported, as it may be counterproductive to the objective of achieving compliance with the positive duty. As I said, comprehensive reasons were provided for the government's position in opposing these amendments, but that just sums it up very much in brief.
The opposition will also not be supporting these amendments. On behalf of the opposition, comprehensive reasons were given in the House in relation to why. Very briefly, this bill is not the appropriate vehicle for the changes proposed in the amendments. The Respect@Work report responded to workplace sexual harassment. As such, the legislative responses to that report have focused on sexual harassment, rather than harassment on the basis of all the protected characteristics in the Sex Discrimination Act.
I just put on record that I disagree with that flimsy reasoning and that these amendments weren't even raised in the House, so I find it hard to believe that a comprehensive response has already been given. But I'll register my discontent and move on.
Question negatived.
I seek leave that the Australian Greens support for our own amendments be recorded in Hansard, but we won't be seeking to call a division, given the time pressures of the day.
Leave granted.
I now move amendment (6) on sheet 1712:
(6) Schedule 8, page 45 (after line 12), at the end of the Schedule, add:
4 After section 114
Insert:
115 Section 13 taken never to have been enacted
(1) This Act is taken always to have had effect as if:
(a) section 12 (about binding the Crown) had been enacted as that section is in force at the commencement of this section; and
(b) section 13 (about State instrumentalities), repealed by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, was never enacted; and
(c) the following provisions of this Act, as in force at the commencement of this section, were in effect:
(i) section 109 (about the State being taken to be an employer);
(ii) any other provisions to the extent that they relate to that section; and
(d) any modifications prescribed by the regulations that are appropriate to give effect to paragraphs (a), (b) and (c) of this section were in effect.
(2) Subsection (1) does not affect the operation of this Act on or after the commencement of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.
This relates to the ability for state employees to seek a remedy under the federal Sex Discrimination Act. The welcome repeal of section 13 of the Sex Discrimination Act by the respect at work bill of 2021 removed the restriction that had prevented state government employees accessing remedies under the Commonwealth regime. But the repeal was not made retrospective, and this meant that a number of state government employees remained locked out of seeking justice. Section 47A, which was introduced at the same time and allowed civil action for victimising conduct, was given retrospective effect in recognition of the justice denied to victims by the option not having been made available previously. The same right should be extended to those excluded by section 13. It would still be subject to the statute of limitations as a reasonable time limit on claims. We are seeking to move this amendment to redress that inequity and that inconsistency.
The government will be opposing this amendment. The government doesn't support making amendments from the respect at work act of last year retrospective in operation. The respect at work act of 2021 repealed section 13 of the Sex Discrimination Act to ensure that state and territory employees were able to make complaints of sex discrimination and sexual harassment under the Commonwealth Sex Discrimination Act. The amendments to section 13 last year did not apply retrospectively because they created a new form of liability that didn't previously exist. Retrospective operation is only appropriate in very limited circumstances. That's a longstanding principle. Each state and territory has antidiscrimination laws prohibiting sexual harassment and sex discrimination, providing an avenue for state and territory employees to make a complaint for conduct that occurred prior to the amendments at the Commonwealth level last year.
Question negatived.
Chair, again, in recognition of the time pressures in the chamber, rather than dividing, I ask that the position of the Australian Greens supporting that amendment be recorded.
Thank you for that courtesy. Senator Cash.
be leave—I rise to move opposition amendments (1) to (11) on sheet 1752 together:
(1) Schedule 1, item 5, page 4 (line 9), after "conduct", insert "in relation to the second person".
(2) Schedule 1, item 5, page 4 (lines 11 and 12), omit "or after".
(3) Schedule 2, item 8, page 7 (line 7), omit "possible", substitute "reasonably practicable".
(4) Schedule 2, item 8, page 7 (lines 9 to 11), omit ", including inquiring into compliance, giving compliance notices and accepting undertakings".
(5) Schedule 2, item 8, page 7 (line 16), omit "possible", substitute "reasonably practicable".
(6) Schedule 2, page 11 (line 14), omit the heading.
(7) Schedule 2, items 17 to 25, page 11 (line 15) to page 18 (line 13), to be opposed.
(8) Schedule 2, Part 2, page 19 (after line 10), at the end of the Part, add:
Sex Discrimination Act 1984
31 Subsection 4(1)
Insert:
compliance notice means a notice mentioned in subsection 49E(1).
positive duty i n relation to sex discrimination means section 47C.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
32 After Part III
Insert:
Part IIIA — Functions of Fair Work Ombudsman relating to positive duty in relation to sex discrimination
49 Functions of the Fair Work Ombudsman relating to positive duty in relation to sex discrimination
(1) The following functions are conferred on the Fair Work Ombudsman:
(a) to inquire into a person's compliance with the positive duty in relation to sex discrimination;
(b) to ensure compliance with the positive duty in relation to sex discrimination.
Note: The positive duty in relation to sex discrimination is section 47C.
(2) Notwithstanding subsection (1), the functions of the Fair Work Ombudsman do not include inquiring into an intelligence agency's compliance with the positive duty in relation to sex discrimination.
(3) If the Fair Work Ombudsman reasonably suspects that an intelligence agency is not complying with the positive duty in relation to sex discrimination, the Fair Work Ombudsman must refer the matter to the Inspector General of Intelligence and Security.
(4) A reference in subsection (3) to an intelligence agency is a reference to the following:
(a) the Australian Secret Intelligence Service;
(b) the Australian Security Intelligence Organisation;
(c) the Office of National Intelligence;
(d) the Australian Signals Directorate;
(e) that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department);
(f) that part of the Defence Department known as the Defence Intelligence Organisation.
49A Performance of inquiry function relating to positive duty in relation to sex discrimination
(1) The Fair Work Ombudsman may inquire into a person's compliance with the positive duty in relation to sex discrimination if the Fair Work Ombudsman reasonably suspects that the person is not complying.
(2) The Fair Work Ombudsman must act fairly in the performance of the function referred to in paragraph 49(1)(a).
(3) Subsection (2) does not impose a duty on the Fair Work Ombudsman that is enforceable in court.
(4) Subsection (3) does not affect a legally enforceable obligation to observe the rules of natural justice.
49B Fair Work Ombudsman to notify person and give opportunity for making of submissions
(1) As soon as practicable after commencing an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman must give the person a written notice stating the grounds on which the Fair Work Ombudsman commenced the inquiry.
(2) The Fair Work Ombudsman must not find that a person is not complying with the positive duty in relation to sex discrimination unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:
(a) to appear before the Fair Work Ombudsman, whether in person or by a representative, and make oral submissions in relation to the person's compliance;
(b) to make written submissions to the Fair Work Ombudsman in relation to the person's compliance.
49C Application of certain provisions of Fair Work Act
Sections 708 to 714A and 718 to 718A of the Fair Work Act 2009 apply in relation to the functions of the Fair Work Ombudsman set out in section 49 of this Act, and in relation to the performance of those functions, as if an inquiry under this Part were an investigation into a suspected contravention of the Fair Work Act 2009.
49D Notification of findings and recommendations
If, as a result of an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman finds that the person is not complying, the Fair Work Ombudsman:
(a) must notify the person in writing of its finding and the reasons for the finding; and
(b) may notify the person of any recommendations by the Fair Work Ombudsman for preventing a repetition or continuation of the failure to comply.
49E Giving of compliance notice
(1) If, as a result of an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman finds that the person is not complying, the Fair Work Ombudsman may give the person a written notice.
(2) The notice must:
(a) set out the name of the person to whom the notice is given; and
(b) set out brief details of the failure to comply; and
(c) specify action that the person must take, or refrain from taking, in order to address the failure; and
(d) specify a reasonable period (starting at least 21 days after the day the notice is given) within which the person must take, or refrain from taking, the specified action; and
(e) if the Fair Work Ombudsman considers it appropriate—specify a reasonable period within which the person must provide the Fair Work Ombudsman with evidence that the person has taken, or refrained from taking, the specified action; and
(f) set out any other matters prescribed by the regulations for the purposes of this paragraph.
(3) However, if the Fair Work Ombudsman has accepted an undertaking from a person under Part 6 of the Regulatory Powers Act in relation to the positive duty in relation to sex discrimination, a notice must not be given to the person under subsection (1) unless the undertaking is withdrawn, cancelled or expired.
49F Reconsideration of compliance notice
Fair Work Ombudsman must reconsider compliance notice if requested
(1) A person to whom a compliance notice is given may request the Fair Work Ombudsman to reconsider the compliance notice.
(2) The request must:
(a) be made in writing; and
(b) set out the reasons for the request; and
(c) be given to the Fair Work Ombudsman within 21 days after the day the compliance notice is given to the person.
(3) If requested, the Fair Work Ombudsman must reconsider the compliance notice.
Fair Work Ombudsman may reconsider compliance notice on own initiative
(4) The Fair Work Ombudsman may reconsider a compliance notice given to a person without receiving a request if satisfied there is sufficient reason to do so.
Reconsideration
(5) The Fair Work Ombudsman must act expeditiously in reconsidering a compliance notice.
(6) After reconsidering a compliance notice, the Fair Work Ombudsman must:
(a) affirm the compliance notice; or
(b) vary the compliance notice; or
(c) revoke the compliance notice.
(7) The Fair Work Ombudsman must give written notice of a decision under subsection (6) to the person to whom the compliance notice was given, setting out the reasons for the decision.
Decisions by delegates
(8) If the Fair Work Ombudsman's functions under this section are performed by a delegate, the delegate who reconsiders a compliance notice:
(a) must not have been involved in giving the compliance notice; and
(b) must hold a position, or perform duties, of at least the same level as the person who gave the compliance notice.
49G Review of compliance notice
(1) A person who has been given a compliance notice may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for a review of the notice on either or both of the following grounds:
(a) the person has not failed to comply as set out in the notice;
(b) the notice does not comply with subsection 49E(2) or (3).
(2) At any time after the application has been made, the court concerned may stay the operation of the notice on the terms and conditions that the court considers appropriate.
(3) The court concerned may confirm, vary or cancel the notice after reviewing it.
49H Enforcement of compliance notice
(1) The Fair Work Ombudsman may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order under subsection (2) if:
(a) a person has been given a compliance notice; and
(b) the notice has not been revoked or cancelled; and
(c) the notice is not being reconsidered under section 49F or reviewed under section 49G; and
(d) the Fair Work Ombudsman considers that the person has not complied with the notice.
(2) If the court concerned is satisfied that the person has not complied with the notice, the court may make any or all of the following orders:
(a) an order directing the person to comply with the notice;
(b) any other order that the court considers appropriate.
49J Enforceable undertakings
Enforceable provision
(1) Section 47C of this Act is enforceable under Part 6 of the Regulatory Powers Act.
Note 1: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Note 2: Section 47C of this Act is the positive duty in relation to sex discrimination.
Authorised persons
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Fair Work Ombudsman is an authorised person in relation to section 47C of this Act.
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to section 47C of this Act:
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2).
Enforceable undertaking may be published on the Fair Work Ombudsman's website
(4) The Fair Work Ombudsman may publish on the Ombudsman's website an undertaking given in relation to section 47C of this Act.
Extension to external Territories
(5) Part 6 of the Regulatory Powers Act, as that Part applies in relation to section 47C of this Act, extends to every external Territory.
49K Delegation by the Fair Work Ombudsman
(1) The Fair Work Ombudsman may, in writing, delegate all or any of the Fair Work Ombudsman's functions or powers under this Part (including the Fair Work Ombudsman's powers and functions under Part 6 of the Regulatory Powers Act in relation to section 47C of this Act) to a member of the staff of the Office of the Fair Work Ombudsman who is:
(a) an SES employee; or
(b) an acting SES employee; or
(c) classified as Executive Level 2 or equivalent; or
(d) acting in a position usually occupied by a member of the staff of the Office of the Fair Work Ombudsman who is so classified.
Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.
49L Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia (Division 2)
The Federal Court and the Federal Circuit Court of Australia (Division 2) have concurrent jurisdiction with respect to civil matters arising under this Part.
(9) Schedule 3, page 20 (line 1) to page 22 (line 22), omit the Schedule, substitute:
Schedule 3 — Inquiries int o systemic unlawful discrimination
Australian Human Rights Commission Act 1986
1 Subsection 3(1)
Insert:
systemic unlawful discrimination: see subsection 46PYA(4).
2 After Part IIC
Insert:
Part IID — Systemic discrimination
46PYA Functions of Fair Work Ombud sman relating to systemic discrimination
(1) The following functions are conferred on the Fair Work Ombudsman:
(a) to inquire into any matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination;
(b) to do anything incidental or conducive to the performance of any of the preceding functions.
(2) Notwithstanding subsection (1), the functions of the Fair Work Ombudsman do not include inquiring into a matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination of an intelligence agency.
(3) A reference in subsection (2) to an intelligence agency is a reference to the following:
(a) the Australian Secret Intelligence Service;
(b) the Australian Security Intelligence Organisation;
(c) the Office of National Intelligence;
(d) the Australian Signals Directorate;
(e) that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department);
(f) that part of the Defence Department known as the Defence Intelligence Organisation.
(4) In this Act:
systemic unlawful discrimination means unlawful discrimination that:
(a) affects a class or group of persons; and
(b) is continuous, repetitive or forms a pattern.
46PYB Performance of functions relating to systemic discrimination
The Fair Work Ombudsman may perform the functions referred to in paragraph 46PYA(1)(a) when:
(a) the Fair Work Ombudsman is requested to do so by the Minister; or
(b) it appears to the Fair Work Ombudsman to be desirable to do so.
46PYC Application of certain provisions of the Fair Work Act
Sections 708 to 714A and 718 to 718A of the Fair Work Act 2009 apply in relation to the functions of the Fair Work Ombudsman set out in section 46PYA of this Act, and in relation to the performance of those functions, as if an inquiry under this Part were an investigation into a suspected contravention of the Fair Work Act 2009.
46PYD Fair Work Ombudsman to give opportunity for making of submissions
In an inquiry into a matter under this Part, the Fair Work Ombudsman must not make an adverse finding about a person unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:
(a) to appear before the Fair Work Ombudsman, whether in person or by a representative, and make oral submissions in relation to the matter;
(b) to make written submissions to the Fair Work Ombudsman in relation to the matter.
46PYE Reports
(1) If the Fair Work Ombudsman has undertaken an inquiry into a matter under this Part, the Fair Work Ombudsman may do either or both of the following:
(a) report to the Minister in relation to the inquiry;
(b) publish a report in relation to the inquiry.
(2) The Fair Work Ombudsman may include in its report any recommendations by the Fair Work Ombudsman for addressing the matter.
46PYF Reports to be tabled in Parliament
The Minister must cause a copy of every report furnished to the Minister by the Fair Work Ombudsman under section 46PYE(1) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.
46PYG Delegation by the Fair W ork Ombudsman
(1) The Fair Work Ombudsman may, in writing, delegate all or any of the Fair Work Ombudsman's functions or powers under this Part to a member of the staff of the Office of the Fair Work Ombudsman who is:
(a) an SES employee; or
(b) an acting SES employee; or
(c) classified as Executive Level 2 or equivalent; or
(d) acting in a position usually occupied by a member of the staff of the Office of the Fair Work Ombudsman who is so classified.
Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.
(10) Schedule 4, page 23 (line 1) to page 26 (line 12), to be opposed.
(11) Schedule 8, item 2, page 45 (lines 9 and 10), to be opposed.
I'll make some brief comments in relation to the amendments. Proposed section 28M does not include the words 'in relation to'. This merely brings the text into line with existing obligations. As currently drafted, the proposed prohibition may extend to instances where the complainant has no exposure to the conduct that causes the hostile work environment. In practice, this may mean that an employee could make a complaint under proposed section 28M without ever being in the vicinity of the alleged conduct. We've introduced amendment (1) to ensure that the relevant conduct occurs in relation to the second person. Proposed section 28M includes the words 'after the conduct occurs'. Given the possibility of large organisations with workplaces distributed across multiple locations, it is important that the person was in the workplace at the time that the conduct occurred. We have introduced amendment (2) to delete the words 'after the conduct occurs'.
In relation to the positive duty, section 47C would require employers and persons conducting the business undertaking to take measures to eliminate as far as possible certain conduct under work health and safety law. The obligation imposed on PCBUs is to ensure the health and safety of their workers as far as is reasonably practicable. We've introduced amendments (3) and (5) to bring this provision within the well-understood existing position of industrial relations law by using the formulation 'as far as reasonably practicable'. In terms of shifting the enforcement inquiries to the Fair Work Ombudsman, in order to avoid regulatory overlap and duplications in compliance regimes, we have proposed to shift the enforcement powers for the positive duty to the Fair Work Ombudsman. We've proposed to shift the inquiry powers to the Fair Work Ombudsman to prevent an employer being investigated by more than one body in relation to the same conduct and to avoid any conflict between the conciliation and inquiry functions of the Australian Human Rights Commission.
In terms of representative actions, there already exists a mechanism by which representative actions can be brought in the Federal Court of Australia. Allowing a party who is not an aggrieved party to have standing to commence a claim, as this provision does, is a significant departure from Australia's class action laws. Representative groups are not prohibited from providing financial or legal support to parties pursuing a representative proceedings in the court. Rather they are simply prevented from commencing the proceedings on their behalf.
The amendments moved by the opposition bear no resemblance to the actual recommendations of the Respect@Work report, and so the government will not be supporting them.
Can I indicate that the Australian Greens will be opposing these provisions, particularly items (1) and (2), which would change the hostile work environment provisions to require that the conduct be directed at a complainant. The individual complainant approach defeats the purpose of having provisions creating a workplace and cultural change approach, so wrong way, go back. Items (3) and (4) would weaken the positive duty by requiring employers to do simply what is reasonably practicable rather than what is possible to make the workplace safe. We won't support a weakening of the positive duty. The proposal to give compliance powers to the Fair Work Ombudsman rather than AHRC would fly in the face of Ms Jenkins's recommendations, which identify the AHRC as the best compliance agency, given its expertise.
Again, on item 10 to scrap the representative actions provisions, the Greens believe representative actions are a key reform in allowing complaints to be made without exposing individual workers. Lastly, the proposal in item 11 is to revert to the previous government's weak version of the objectives clause, which would seek equality of opportunity rather than substantive equality. Structural gender inequality is not simply about denial of opportunity. It reflects how discrimination, stereotypes and other factors can affect people's capacity to take up opportunities. The goal of substantive equality recognises that opportunities need to be offered differently in some circumstances in order to overcome structural barriers and achieve substantive equality. For all those reasons, we won't be supporting any of these amendments.
The CHAIR: Senator Cash has moved amendments (1) to (11) on 1752. I am required to put those amendments by two questions. I will take you through the questions before I put them. The first question is that amendments (1) to (6), (8) and (9) be agreed to. Regardless of the outcome, I will then put the second question, which will be that items 17 to 22, 24 and 25 of schedule 2, schedule 4, and item 2 of schedule 8 stand as printed, and item 23 of schedule 2 stand as amended.
The CHAIR (12:34): The question is that items 17 to 22, 24 and 25 of schedule 2, schedule 4, and item 2 of schedule 8 stand as printed, and item 23 of schedule 2 stand as amended.
Question agreed to.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.
I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
I seek leave to move a motion relating to the government's management of its legislative program.
Leave not granted.
Pursuant to the contingent notice standing in my name, I move:
That so much of the standing orders be suspended as would prevent me moving a motion to provide for the consideration of a matter, namely a motion to give precedence to a motion in relation to the government's handling of its legislative program.
I believe the motion is being circulated. Can I read the motion whilst it's being circulated?
Yes.
The motion reads:
That—
(1) The Senate notes:
a) the disastrous negotiations on the Financial Accountability Regime Bill 2022 and associated bills conducted by the Assistant Treasurer which plagued the financial industry with more uncertainty; and
b) fundamental mistakes and miscalculations in the Regulatory Impact Statement to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 demonstrate that the Albanese Labor Government is pursuing a rushed and chaotic approach instead of a proper and transparent approach for such extreme reforms.
(2) A message be sent to the House of Representatives seeking its concurrence with paragraph (1) of this resolution.
(3) The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 be referred to the Education and Employment Legislation Committee for inquiry and report on the first sitting day of 2023.
What we have heard during the course of this week, during Senate question time, has been an endless litany from this government of failure to admit that the rushed approach to its extreme IR legislation is an approach riddled with mistakes and an approach that will have dire consequences for businesses, particularly small- and medium-sized businesses across the Australian economy. The mistakes in the regulatory impact statement of the government are such that it is clear this government has not done its homework on the IR bills that they are seeking to ram and rush through this parliament next week. The truth is they didn't take these reforms to an election. They didn't take them the Australian people. They didn't tell them upfront what they were going to do. This is a government that, instead, in its early days decided that it would try to drive through the parliament reforms that were not communicated and make sure that in doing so it was able to deliver for its union friends that which it wasn't game to tell the Australian people about beforehand.
What we've heard is that the regulatory impact statement miscalculated elements of the costs to small and medium-sized businesses and, as every day has gone by, we understand that more and more costs will be racked up and applied to Australian small and medium-sized businesses as a result of the government's approach. We were told that, in miscalculating those costs, it was in part because they were based on a few google searches, it seems. These searches were of some of the most curious and unusual businesses that you could seek to base an economic analysis upon.
Embarrassing!
It is indeed embarrassing, Senator Scarr. It's embarrassing and it might be funny that the government is relying upon shamans or dog-grooming services as an equation for the whole economy.
Magicians, dog-walkers.
Psychics or magicians—it might be funny if it weren't so serious in terms of the consequences of the government's legislation. The consequences of the government's legislation will be to see Australian businesses face costs and disruption—costs in terms of the regulatory impact, costs in terms of negotiating, disruption in terms of the increased strike action—and be forced to act in ways that are not analogous to the needs of their individual enterprise or business.
Jobs will be lost.
The consequences of those higher costs, higher strikes, more disruption will be, as Senator Duniam said, lost jobs. There will be fewer jobs in the Australian economy and higher costs for businesses. Contrary to what the government claims, it's not going to help productivity. It's going to hurt productivity when you've got businesses tied up in red tape and dealing with strikes. Productivity will go down and costs will go up. Will that help or hurt inflation? It will drive inflation and it will make a difficult situation, a real problem, even worse. The government's actions will make the problem worse. They should be listening to the Reserve Bank. They should be listening to the experts. They should be listening to any business across the country, not just as I've heard in this chamber this week but, remarkably, in the other place. When the Minister for Small Business was asked to name one small business—just one—who supported the government's extreme IR bills, guess what? She couldn't name even one—not even one.
As if the chaos from the hapless management of the industrials relations built by the government isn't bad enough, we've been exposed in recent days to the work of the Assistant Treasurer and the way he is conducting his negotiations on the financial accountability regime bill. He seems to be changing position on that bill on a daily basis and doing it all through the media. One day there are new fines, the next day those fines are being taken away. Where is the certainty for Australian business? Where is the certainty for Australian investors? What on earth is this government doing? Well, they're making these mistakes because of the undue haste and because they are dancing to the tune of their union masters. That's why these mistakes are happening. The IR bill is no doubt full of other mistakes that are yet to be exposed because of the rushed approach. The financial services bill is also being changed on a day-to-day basis because the government is dancing to the tune of others. It's trying to twist around to make sure it keeps the unions happy and the industry super funds happy. They're telling them to go harder, go faster on these reforms. But they're not doing their homework and so not getting it right, and as a consequence Australians are going to face higher costs, fewer jobs, a weaker economy. And we won't stand for it.
Well, the week is ending as it started, with the Liberal-National coalition doing everything they can not to help Australian workers get a pay increase. It's the same strategy with which they started the week.
This is a secret, dirty, rotten plan—a secret, dirty, rotten deal with union bosses in this country.
Would you like to stand up and make a contribution? No amount of slagging off the trade union movement—
Senator Henderson—
I'm just accepting Senator Wong's invitation.
It's not an invitation. I'm the one who gives the invitations.
Oh! Senator Wong, I thought you wanted me to talk about the secret, dirty, rotten deal that's hurting every employer in this country.
Senator Henderson, please sit down. This is an open-ended debate.
No amount of slagging off working people will get away from the fact that you stand in the way of wage increases for ordinary Australians.
I know; it's a dreadful thing, isn't it?
Senator Henderson, do you have a point of order?
On direct relevance: I just want to point out the only one I'm slagging off is this government.
That's not a point of order. Please be seated. Senator Wong.
Tactical genius over there! Yet again, we see this Liberal-National party, the dregs of government, doing the only thing they know how to unite on—that is, standing up against working people. That is the only thing these divided remnants of a hapless government can actually do together—stand up against working people. That's what you've consistently done all week. It's the one thing that unites you: 'We love a deliberate design feature of our economy being low wages, and we're going to fight really hard to hold on to it.' That is what has occurred all week and that is what is occurring now.
The part of the motion before the Senate that really demonstrates the motivation of those opposite is they want to defer debate on the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill.
We just want proper scrutiny!
I'll take the interjection from the Leader of the Opposition in the Senate. He says he just wants more time; he wants more scrutiny. Does anyone believe that those opposite, the party of WorkChoices, will ever change? I was here for the WorkChoices debate. And I see the same fervour in their eyes now. This is the thing that unites them best: 'How can we gang up against workers and how can we bash the trade union movement?' That is what unites you, and that is what this motion is all about.
Let's remember the bill they so desperately don't want to debate expressly prohibits sexual harassment, puts gender equity and job security at the heart of the Fair Work Commission's decision-making, bans pay secrecy clauses.
You say you care, Senator Henderson, about pay equity, but you're defending pay secrecy clauses.
Excuse me, Senator Wong. Senator Henderson, on a point of order?
I was going to take a point of order that Senator Wong wasn't referring her comments through the chair, but she then, when I stood up, added 'Senator Henderson', so just to remind—
Thank you. Senator Wong.
We've only got half an hour for this debate, and you're wasting time! Good on you!
Senator Watt, you're not assisting.
Very sensitive—so sensitive. You're very happy to dish it out but you don't like it when people call it out, do you? You dish it out across the chamber to the President but you don't like it when people call you out.
Those opposite say they care about pay equity. This bill seeks to deal with some of those pay equity issues by banning pay secrecy clauses and giving the Fair Work Commission the powers to deal with pay equity. This is the bill they're fighting so hard against. New limits on rolling contracts—another equity provision. There are all these aspects of the legislation that they do not wish to debate. They want the debate to be about just one thing, because they don't actually want to deal with the real issue: at its heart, this bill is about trying to make Australian workplaces fairer and get wages moving again. That is what this bill is about. You cannot join with that issue, can you, because, fundamentally, you don't agree with it. No matter how much debate, no matter how much so-called scrutiny, you are ideologically, historically and forever committed to opposing this bill. We all remember from the last election the dollar pay increase, and the way in which your then government responded. Australians remember that. What is clear from the way in which you have dealt with this debate on this bill is you haven't learnt the lesson.
The Australian Greens do not support the question before the chair. I do want to make some comments about the Financial Accountability Regime Bill 2022 negotiations, but before I do I want to be abundantly clear that the Australian Greens certainly do not support the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 being referred to a committee for an inquiry that is both needless and designed only to delay. Neither do we accept that the management of the chamber this week has been chaotic. In fact, it has been very productive, and we genuinely hope that next week will be the same.
On the Financial Accountability Regime Bill, on Tuesday this week, at about six o'clock, Minister Jones and I met in his office and we made an agreement. That agreement was that the Greens would facilitate the passage this year of the Treasury Laws Amendment (2022 Measures No. 2) Bill 2022, the Treasury Laws Amendment (2022 Measures No. 3) Bill 2022, and the Financial Accountability Regime Bill and its cognate bills. The condition on which that was agreed was that the government would support the Greens amendment to the Financial Accountability Regime Bill 2022 to insert civil penalties for accountable people, including bank executives, for breaches of their accountability obligations. That would have been a great step forward.
Yesterday, Minister Jones and I met again in his office, and he informed me that the government was no longer prepared to honour that agreement. We all know what's happened here. Labor has cracked under pressure from the bank executives. Reneging on the agreement shows very clearly that Labor values the interests of bankers over the interests of customers. Minister Jones has learned very clearly what happens when you get in between a bank executive and a bag of money. He's learned that you get absolutely steamrolled, and that's what has happened to him this week. There is absolutely no doubt that Minister Jones and I had an agreement, and any claim that there was no agreement is false.
I can also inform the Senate that yesterday evening I wrote to Minister Jones offering a revised agreement in which the Australian Greens would facilitate the passage of the relevant bills this year on the basis that the government would support a revised amendment which would ensure that small and mutual banks and, importantly, executives of small and mutual banks are not unreasonably impacted. For clarity, this means that executives of small and mutual banks would not be subject to civil penalties for breaches of their accountability obligations. In other words, we would be going squarely after the top end of town, where this kind of reform is so desperately needed to send a clear message to the executives of the big banks in this country that their poor behaviour and their appalling culture, uncovered by a once-in-a-generation royal commission, will not be tolerated any longer. We hope the government is prepared to accept our revised offer, which we make in good faith, despite what has happened in the last 24 hours. We look forward to the government's response.
This is the Fair Work Act. We see an amazing bill coming through now involving a lot of parts—27 parts. Some are simply necessary tidying up; we support them. Some are worthy improvements; we support them. Some are big issues that are not thought through. Some are big issues that are thought through but appear to be hiding things. Some are designed deliberately, it appears, to confuse and to obfuscate. We need more time to scrutinise this. The government has said that this is about increasing pay. Rubbish! They have left out my Fair Work Amendment (Equal Pay for Equal Work) Bill 2022, which is fundamental to getting more pay for workers. We cannot add complexity to this already complex dinosaur—the Fair Work Act—without proper scrutiny. That's the only way to do this. I support the move to suspend standing orders, and we'll be supporting the motion.
I also support the motion made by the Leader of the Opposition in the Senate to suspend standing orders. In the first instance, I have to say: Senator McKim, I was not aware of the revelations that you have just provided to the Senate. A deal has allegedly been done between a government minister and yourself, and a deal has been broken. Seriously! Did the minister even have authority to do the deal with you, now begs the question. That minister should today at least have the decency to front the press and actually confirm whether or not a deal was done. In this place, let's be honest, if a deal is done, you stick with the deal. It would appear that Stephen Jones, the Assistant Treasurer, did not have the authority, Senator McKim, to do the deal with you. I don't know what the deal was. I may not even agree with the deal, but I have to say: the revelations that a deal was done demand that the Assistant Treasurer front the media today and give an explanation to the Australian people.
Why do I say that? Because this is a government that was elected on a basis of integrity and transparency. As the Leader of the Opposition in the Senate has said, what this motion does is merely allow further scrutiny in relation to possibly the biggest industrial relations changes this country has seen for decades and decades. It doesn't ask for that scrutiny to be extended in an unreasonable time frame. In fact, what it says is basically, 'Give us the Christmas period to go out there and talk further to employers.' Because—and we all need to remember this—governments don't create jobs. Employers do. When you have every employer in the country standing up and saying, 'We agree with wage rises; we have nothing against wage rises, but this bill will not deliver wage rises,' I'd have thought you'd sit back for five minutes and just listen.
For the benefit of those in the gallery, this is the contempt with which the Albanese government treats businesses in Australia. To calculate costs for small business they have utilised a website called 'How much should I charge a consultant in Australia'. That sounds reasonable until you click on the link in the regulatory impact statement and the author of the article is described as 'a cross between a business strategist, a modern day spiritual healer and a self-development expert'. Benjamin J Harvey—and good on Benjamin J Harvey!—is:
… as comfortable working with Shamans to Strategists, Psychics to Sales Reps, Healers to Home Makers, Buddhists to Businessmen and Meditators to Mediators.
What does the government do? The government says, 'Sorry, it was a mistake,' and throws their own department under a bus. Interestingly, the figure of $175 per hour was actually the same figure that Benjamin J Harvey's website came up with. So I have to start wondering whether or not merely throwing the department under the bus was the right thing to do.
But it actually gets worse in terms of contempt for business. As we know, there is a fundamental mistake in the RIS in relation to the bargaining tax that medium sized businesses will actually pay. The government has miscalculated it by $5,000. And the bad news is that it isn't $5,000 less; it's not $70,000 that medium businesses will be paying. It actually now goes up to $80,000. Do you know what the relevant minister said in relation to that? On a $5,000 mistake, when it increases the cost for a business from 75 to 80—I kid you not—it is only a 'typo', a mere typo. So all those businesses that have 16, 17, 18, 19 and 20 employees, I can tell you, your Christmas present from the left-wing Albanese government is the additional $5,000 that you will have to pay for the pleasure of being compelled to bargain. A bargaining tax of $5,000? I do not know where you are finding this $5,000 with every other cost that is being imposed on you. But the contempt that those opposite have to say that a $5,000 increase is a 'typo'— (Time expired)
Nothing symbolises more how lost this crowd are on industrial relations than Senator Cash. The former workplace relations minister, nobody is more responsible over on that side for a government that had the longest period of historically low wage growth in our history ever—ever! Since Federation, those guys opposite presided over the lowest period of wage growth in our history and the lowest period of productivity growth in our history. Why? Because they see industrial relations and workplace reform for one thing: they can't stand the union movement. That is all they care about. They are not interested in anything more. It is a one-eyed, prejudiced, blinkered, ideological view about Australian workplaces that can only see one thing. And when there is a little bit of legislation put in front of them—moderate sensible, practical, straightforward internationally comparable—what are they doing? I will tell you what they are doing.
I rise on a point of order in relation to the assistant minister clearly misleading the chamber. If he thinks that hundreds and hundreds and hundreds of pages—
That is not a point of order. Senator Cash, please be seated.
Do you know what? The international evidence demonstrates this. What does this legislation lead to? Multi-employer bargaining leads to more employment. It leads to lower unemployment. It leads to better jobs. It leads to higher wages. It leads to higher productivity. It leads to less gender inequality. But you guys opposite are not remotely interested in any of that. I tell you what, your relationship with the concept of productivity is so broken. What you have here is a government that is doing what it said it would do—that is, legislating its agenda. The only thing that you are doing is trying to break the productivity of this parliament because what is going on does not suit your political timetable. That is what this is really about. What you, you and you want is months and months and months to run a dishonest partisan political scare campaign in Australian workplaces to frighten ordinary small-business owners out there. These propositions are very straightforward, very simple to understand. I will give you an example of how simple to understand they are. There is an outfit called the OECD. You lot opposite may have heard of it. It is run by a fellow who used to loaf around over here trying to keep Australian wages down. That is what former Senator Cormann did; he tried to keep Australian wages down. The outfit he leads, one of the most respected economic analysis outfits in the world, makes the proposition very simple. It says multi-employer bargaining is a cornerstone industrial relations institution in 18 out of 26 OECD countries. It is a cornerstone not just of their industrial relations system but of their macro-economic system—
Opposition senators interjecting—
Order!
I mean, honestly. Have a go!
It's a cornerstone of their economic systems. It's a cornerstone of their productivity systems. What it leads to is higher employment, lower unemployment, more jobs, good jobs and more cooperation in workplaces over issues like skills. It leads to higher productivity. It leads to lower gender inequality. Which bit of that don't you lot want to have? The fact is: the modern Liberal Party have lost their way on productivity. You've lost your way on the issues that matter for Australian businesses and Australian workers. Nothing represents that more than the miserable stunt that you lot have engaged in today.
What we find out today is that federal Labor are bringing in a payroll tax at a federal level on small businesses. They're going to charge small businesses tens of thousands of dollars—
Point of order, Senator Ayres?
As I understand it, time has expired for this debate.
I've got about two minutes.
Honourable senators interjecting—
Can I have some order!
Can you sit down, Senator McGrath? You are really pushing the boundaries here.
It is unacceptable behaviour, and I am about to address it. Senator McGrath, that was completely out of order. I'm not going to give you the call. I'm going to give the call to Senator Sheldon for the last two minutes.
I sat you down because of your behaviour.
This is the thing: they don't want to hear from small business. If they had actually read the report into this bill, they would have seen that small business—HVAC small-business operators—said they want multi-employer bargaining, because they want productivity increased. They want there to be a better opportunity to build wages, to turn around and share the opportunity for productivity. That is the sort of answer that we want to build this country—wages go up, productivity goes up. These are opportunities that make a change for everybody. This will mean wages improve and productivity improves. But what have the opposition constantly been about? Look at Senator Birmingham. On Insiders, he said that we should have a decrease in wages, because he wants the same system to apply. That's what they're about. They want wages suppressed. Look at Angus Taylor yesterday on the ABC. He's declaring individual contracts as the best way to go. They want to go back to Work Choices. The difference is: they've allowed Work Choices to apply right now because they've done nothing—
Thank you, Senator Sheldon.
The question is that the motion moved by Senator Birmingham to suspend standing orders be agreed to.
To take the tone down a few notches, I rise to provide a contribution on the Social Services and Other Legislation Amendment (Incentivising Pensioners to Downsize) Bill 2022, and I'd like to at the outset indicate the coalition's support for this piece of legislation. The bill amends the Social Security Act 1991 and the Veterans' Entitlements Act 1986 to support pensioners or other eligible income-support recipients—
Honourable senators interjecting—
Senators at the back of the chamber, I can just about hear word for word your conversations, and Senator Duniam is trying to make a contribution.
It's obviously hard to regain composure as a collective, and we shall do that now. I'm going to be serious and sensitive now. But this bill, which we support—and I'm almost at the end of my contribution here now; I'm coming quite near to the end of my analysis of this legislation, which is amazing—supports pensioners or other eligible income-support recipients during the sale and purchase of a new home by, firstly, extending the existing assets test exemption for principal home sale proceeds which a person intends to use to purchase a new principal home from 12 to 24 months and, secondly, applying only the lower below-threshold deeming rate to these asset-test-exempt principal home sale proceeds when calculating deemed income, two important elements, and for those reasons the coalition supports the bill.
I also rise to speak in support of the Social Services and Other Legislation Amendment (Incentivising Pensioners to Downsize) Bill 2022. We will be supporting this bill, but it is another very, very, very small step forward for the social services and social security agenda. It's another election commitment from the Labor Party. It's another election commitment that was effectively bipartisan between Labor and the Libs, with the Labor Party competing with the Liberal Party to do just enough tweaking of our social services legislation to make sure the Liberals can't run another scare campaign to say the Labor Party are abandoning older Australians.
Meanwhile the system is broken. While the Labor Party is tweaking it with minor changes—and in fact we don't even know how many pensioners are likely to take this up, and the estimates that I've heard are 'probably not very many', as much it's a good measure—it's basically a Liberal election commitment. People are relying on income support payments that are below the poverty line. People are going hungry. People are homeless. People can't afford to pay the rent. People can't afford to pay their medical bills or seek the medical treatment that they need. People are turning off the lights and the heating because they're afraid of the bills. These are the big issues, the big changes to our social security system that we should be addressing, and across the country there are people—whether they're on JobSeeker, youth allowance, student allowance, the disability support pension or the aged pension—who are relying on income support who had dearly hoped that a change in government would mean a change in policy. They had hoped that it would mean a change for their lives.
It's almost the end of the year. This government has now been in government for six months, and across the country what a lot of us are hearing is disappointment. So let me say clearly to the Labor Party that we want to work with you on this. We want to see before this parliament a government bill that raises the rate of income support and makes the genuine changes to our social security system that are needed. We want to see genuine change that will benefit people who are the most marginalised, who are the poorest people in the country, who are the people who are starving, who are the people who are being diagnosed with malnutrition and with scurvy.
We want to work with the government, but we are not going to sit quietly and just tick off on minor tweaks and let you ignore the millions of people who are condemned to live in poverty by the political choices that you are making, because that is the simple reality—poverty is a political choice. The government, while it's tweaking incentivising pensioners to downsize, has made a choice to not reverse the stage 3 tax cuts, which are going to cost the budget $250 billion over the next 10 years. This government has made a choice to give that $250 billion to the billionaires and to the ultra-wealthy—to people who do not need a tax cut. Meanwhile, people are being quagmired in poverty. The government has chosen to keep those tax cuts instead of raising the rate of JobSeeker.
This bill incentivises pensioners to downsize, but it amends the Social Security Act and other legislation. I and the Greens are going to take every opportunity, as I said earlier this week, to attempt to take action to increase the rate of income support for the millions of people who are now living in poverty. I have a second reading motion on sheet 1682 that I will be moving that calls on the Senate to lift the rate of income support payments above the poverty line. I call on every senator who cares about their fellow Australians, who cares that there are people who are homeless, who can't pay the rent, who can't put food on the table and who can't pay their medical bills, to please support this amendment. I move:
At the end of the motion, add ", but the Senate calls on the Government to lift the rate of all income support payments above the poverty line".
I'm soothed by the mellifluous tones of Senator Duniam in making his reassuring assertion of the opposition's support for this bill. I intend to make a much shorter contribution. If you listen carefully to Senator Rice's contribution, we can look forward to a Greens party amendment, but I'm confident of the support of the Senate for this important piece of legislation.
The question is that second reading amendment moved by Senator Rice be agreed to.
As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.
I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.