Senator LUNDY (Australian Capital Territory—Parliamentary Secretary to the Prime Minister and Parliamentary Secretary for Immigration and Multicultural Affairs) (09:31): I am pleased that Labor will be supporting this private member's bill to strengthen the rights of territories. The Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Common­wealth) Bill 2010 has been referred to a committee. That committee has reported back to the Senate. I would like to warmly welcome their recommendation that this bill be passed.

At the outset, before I talk to some amendments, I would like to make it very clear that there are fundamental differences between this bill and another private member's bill that has also been introduced to the Senate, the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010. It is fair to say that there is often some confusion about this, because they both relate to the way in which the territories are treated under Commonwealth law and their capacity to make legislation. But very clearly the purpose of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010—not the one we are debating today—is to repeal the euthanasia laws of 1997 and to repeal the provisions that preclude the ACT and NT from legislating on euthanasia. We will have an opportunity to speak about that another time. My own view is that it is about restoring territory rights.

But the purpose of this bill is to remove the power of the executive to overturn territory legislation behind closed doors without a parliamentary process. This has become known as the power of veto, if you like, over territory legislation. It is an executive mechanism that we in the Labor Party agree does not accurately reflect the status, the capability and the maturity of either the ACT assembly or the Northern Territory parliament. This bill will not stop the federal parliament acting in the national interest in an open and transparent way—in other words, from dealing with issues through both houses of parliament—should there be a conflict between Commonwealth and territory legislation.

I would like to foreshadow government amendments to the bill that were recom­mended by the Senate committee. These amendments will remove some words in clause 4 of this bill, which at the moment says, 'providing relevant territory legislatures with exclusive legislative authority and responsibility for making laws'. Our amend­ment would remove that reference because it does not accurately reflect the current power of the Governor-General to recommend amendments to territory laws. As such, it cannot be achieved by the bill. And this parliament can use a legislative process to override territory laws. To reflect in this private member's bill that this did create exclusive legislative authority and responsi­bility for making laws was indeed inaccurate. Nonetheless, this bill is an important change, because it does remove that executive veto, as I mentioned.

The other government amendment that I wish to foreshadow reflects the recommend­ation of the Senate committee and removes the reference to Norfolk Island. Norfolk Island is currently undergoing an extensive reform process. That reform process has bipartisan support and the support of the Norfolk Island assembly. That process is underway and we need to give due regard to that reform process, which involves govern­ance and various accountability and transpar­ency measures. It would be appropriate to consider the status of Norfolk Island's governance arrangements through that reform process.

Through the course of the inquiry into this bill many comments were made, particularly by the opposition, recognising that it was time for a broad update of the Australian Capital Territory (Self-Government) Act. That recognition was across the board. In speaking to this bill as an ACT senator, I tend to agree. In fact the ACT government and Chief Minister have for some time been saying that it is probably time for an update of and a closer look at the Australian Capital Territory (Self-Government) Act, given that it came into force back in 1989. There are so many things one could say about the progress of the Australian Capital Territory. We can reflect positively on the maturity, stability and functioning of the ACT assembly in its governance role. All of these things stand up to scrutiny and support the general bipartisan view that an update of that act is due.

However, it was disappointing that through the course of the inquiry it became clear that the opposition's position on this bill was to oppose it and that they were hiding behind a call for a broader review of the Australian Capital Territory (Self-Government) Act and using that as a reason not to support this bill. I will be very inter­ested to hear what the opposition have to say, because there is nothing in the context of a more comprehensive review or consideration of an update of the ACT (Self-Government) Act that would preclude their support for this bill right now. I know Senator Humphries is very tuned in to this issue. He has spoken many times on the right of the territories to create their own legislation. Indeed, we exchange words fairly regularly about this very issue. I would like to take this opportunity to remind Senator Humphries, the other ACT senator, of his past expressed avid resentment of federal interference in territory affairs and remind him that this is a significant opportunity for him and, indeed, for the opposition to respect the capacity and power of the legislature and remove this feature of an executive veto that is not shared by any of the states. It is something which applies only to the territories and, therefore, supporting this bill and the foreshadowed amendments by the government to remove that executive veto would bring the ACT and the Northern Territory into line with the states.

The final point I would like to make about this bill is that it really is about respecting those democratic rights. That is the basis upon which this bill has been proposed and the basis upon which we have debated similar issues in the past. The way in which we have seen this measure used by the former Howard government reminds us all that when we provide for self-government it is about trust, it is about respect and it is about the democratic authority of the government that has been put in place by an act of this parliament.

This is an opportunity to bring ACT democratic rights in line with those of the states and to stand up for the ACT assembly and, through it, all the people of Canberra. If the opposition turn their backs on this issue now, it will provide evidence that that is not a core principle which informs their view on these matters and will enlighten everybody that there is a strong thread of opportunism in the opposition's stance on the issue of territories' rights.

In closing, I would like to remind people that this does not prevent the federal govern­ment from engaging in a parliamentary debate in order to challenge state or territory legislation that is inconsistent with the Com­monwealth. Any fear campaign to purport that it will is misleading.

Finally, I would like to take this oppor­tunity, because I think it is directly relevant to the subject matter today, to congratulate the new—not so new any more actually—Chief Minister, Katy Gallagher. She is the new Chief Minister following the retirement of former Chief Minister Jon Stanhope. I would like to acknowledge that the transition was a smooth one and that I am extremely proud to work very closely, as I always have, with an ACT assembly, a Chief Minister and an ACT Labor government so focused on the best interests of the people of Canberra. I know they are committed to their ongoing campaign to ensure that they have the democratic right that reflects that of the states and that is commensurate with the status, maturity and broad rights of the people of the ACT.

I commend the bill to the Senate. I was very pleased to speak to it today. I look forward to the government moving the amendments, as they reflect the recommend­ations of the Senate committee, and I will watch with interest what is happening on the other side of the chamber.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (09:42): The opposition has always been a strong proponent of the rights of people who live in the territories and, in particular, the rights of people who live in the three territories affected by this bill—the Australian Capital Territory, the Northern Territory and Norfolk Island. We note in particular that the Northern Territory has resumed a movement towards statehood. That was a movement which, in the 1990s, although ultimately defeated, was strongly supported by the then coalition government led by John Howard. I recently met with a bipartisan delegation of parliamentarians from the Northern Territory to discuss the movement towards statehood for the Northern Territory with them.

Equally, the coalition has always been represented in this place by ACT senators—my distinguished friend Senator Gary Humphries, a former Chief Minister of the ACT, and his predecessor, Senator Margaret Reid—who have been very, very ardent advocates for the rights and interests of citizens of the ACT. The issue of statehood for the ACT does not generally arise in these discussions because of the peculiarity of the ACT's constitutional position.

So respecting the rights of citizens who live in Australia's territories, particularly the two territories represented in the Common­wealth parliament, is core business for us in the coalition. What this bill purports to do is to bring about a fundamental constitutional change to the status of those territories and the relationship of those territories to this parliament. Those of us who take the interests of territorians seriously have grave concerns that, because of the piecemeal, haphazard and sloppy manner in which this is presented to the Senate by the Greens, by Senator Brown, passage of the bill in this form will in fact retard and set back the recognition of the rights of territorians. In particular, having regard to the fact that the process in the Northern Territory is pro­ceeding towards statehood in a methodical and careful way, those who would like to see statehood for the Northern Territory do not want this bill in this form. This is by no means easy. I know Senator Brown enjoys the luxury of pontificating about issues without having the responsibility to put those views into effect. But if Senator Brown had met with voters who are seeking to prosecute the case for Northern Territory statehood—

Senator Crossin interjecting—

Senator BRANDIS: I know you have, Senator Crossin. I do not doubt your interest in and commitment to this issue. If Senator Brown had met with those people, he would understand better than he does how constitutionally and politically difficult this is. Those who seek to advance the cause of Northern Territory statehood need a gratuitous intervention like this from the Senate like they need a hole in the head. So we will not be supporting this bill. We support the wisdom of the observation made by the Senate Legal and Constitutional Affairs Legislation Committee when it reviewed the legislation and cautioned against a piecemeal approach to issues of self-government. My distinguished colleague Senator Humphries will shortly be moving a second reading amendment and addressing this issue and elaborating further upon what the Senate committee report found.

There is another reason why the coalition opposes this legislation. We look with a very sceptical eye on anything that comes from Senator Bob Brown and the Greens. With a deeply sceptical eye, we have followed through the media the debate about gay marriage that has riven the Australian Labor Party and the concerns expressed, in particular by former Senator Mike Forshaw and former Senator Steve Hutchins—reflected, by the way, in their dissenting comments in the committee report—that this bill, although on its face a constitutional bill, is in fact being sought to be used as a vehicle for gay marriage to be introduced in the Australian Capital Territory. In forming that sceptical, dare I say somewhat cynical, view of Senator Bob Brown's purposes here, we are emboldened by comments that the former ACT Chief Minister Mr Jon Stanhope made in the context of this debate when Mr Stanhope belled the cat and made it perfectly clear that he would like to use this legislation, were it to be passed, as a vehicle to introduce gay marriage in the ACT. Mr Stanhope—who was a dreadful Chief Minister, a real no-hoper and one of the worst heads of government I have ever come across, on either side of politics, in any state or territory—revealed the purpose and the thinking behind this bill. Whether that purpose is continued by the current ACT Chief Minister I do not know, but at the time this bill was being shaped in the mind of Senator Brown we know what Mr Stanhope thought it would lead to and what he wanted it to lead to.

We know, as I said a moment ago, that on the issue of gay marriage the Labor Party is riven between those who are proponents of that issue and those—particularly the more conservative elements in the Labor Party—who are trenchantly opposed to it. We have no such division on our side of politics. We in the Liberal Party and the National Party support the Howard government's amend­ments to the Marriage Act; we do not support gay marriage. We are not having the argument among ourselves about gay marriage that is tearing the Labor Party to shreds at the moment. We are perfectly prepared to watch from the sidelines as the Labor Party tears itself apart. But anybody who thinks that there are not some in the Labor Party who see this bill as a step towards the enactment of gay marriage within the ACT is either deluded or dishonest. There are many—not all, perhaps not most—in the Australian Labor Party who do see this bill as a pathway to that outcome.

We do not accept the good faith of Senator Brown's public assurances that this bill is purely about the rights of territorians. On its face, as I said before, it is a constitutional bill. On its face, it is a bill of general application, but we know that it is also part of this move to achieve an outcome in relation to the Marriage Act to which we in the coalition are resolutely opposed. For that reason as well, we will be opposing this bill and we will be supporting the second reading amendment which I foreshadowed and which Senator Humphries will outline in his contribution.

Senator CROSSIN (Northern Territory) (09:53): I rise to provide a contribution to the debate on the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010. I do that in two respects: firstly, of course, as one of the two senators from the Northern Territory and, secondly, as Chair of the Legal and Constitutional Affairs Legislation Committee that inquired into this bill earlier this year.

I want to begin by saying that there are some aspects of Senator Brandis's remarks that I tend to agree with and there are some aspects of his remarks that I totally disagree with, and I think that what is happening in the Northern Territory and the views of people who are supporting statehood were a little misconstrued in his contribution. Can I say in providing some input into this debate that I often feel that, representing the Northern Territory, I am a bit like the youngest child in a family of 250 here. Sometimes when you are representing the Northern Territory in this chamber, you feel like you are at the bottom of the pecking order. You feel like you have to fight for every piece of recognition and acknowledge­ment you can get for the Northern Territory.

For the last 13 years it has always eluded me as to why we are constantly coming into this chamber for debates such as this when we would not have these debates if we were a state or if people somehow did not feel that they could pick on the Northern Territory all the time. They do that by using some sort of hook rather than letting the legally competent, elected governments of the Northern Territory—whether they be under the Country Liberal Party or under the Labor Party—just get on and do the job they are elected to do. They enact euthanasia legislation, but for some reason here in Canberra, if we do not like it, we think we can overturn it. They enact mandatory sentencing legislation, but for some reason here in Canberra, if we do not like it, we will overturn it. People fought to keep euthanasia laws; people here overturned them. People wanted to keep mandatory sentencing laws; people here wanted to overturn them. It is always about an issue when you come to the Territory. It is never about the competency of the governments.

I have lived in the Northern Territory for 30 years. Let me tell you: there are some laws that the CLP enacted that I did not particularly like at all, but I did not think that that was a key for me to open the door to Canberra and say, 'Overturn the legislation.' I think people down here have got to get out of that mind-set and totally get off picking on the Northern Territory and its government, no matter which party leads that government. Just leave us alone. Just let us get on with governing in our own right.

We inquired into this piece of legislation. It is not a comprehensive review of the self-governing aspects of the ACT and the Northern Territory, and we make those strong recommendations here. I look at the amendment that Senator Humphries wants to make, and in some respects perhaps that does need to happen, but at least I am saying, 'Pass this piece of legislation,' because this piece of legislation could become law while a review of the self-governing acts is occur­ring. I will get on to why I would not support that for the Territory in a minute.

What this bill simply does is remove the power of the executive government to veto legislation that has been enacted in the territories. That is all it simply does. It stops somebody in the executive arm of the federal government deciding they do not like a piece of legislation that has been enacted in the Northern Territory or the ACT. But it still leaves in place the provision for this federal parliament to overturn a piece of legislation. To me, that is not good enough either. I think the Territory government should be allowed to just get on with what it is competently elected to do. But for me at least this is a first point of call. At least we could be assured in the Northern Territory that one particular minister or one particular Prime Minister of any governing party in this country could not go off to the Governor-General or the Administrator and seek to overturn a piece of legislation.

So is this a perfect piece of legislation? It is not a comprehensive piece of legislation in terms of the self- governing act of the territories, but at least it is one start. You could argue: 'Let's not do it at all. Let's do a comprehensive review.' But I think at least it gives the people of the Northern Territory some confidence to know that not one single person or one part of the executive govern­ment will be overturning legislation. Unfor­tunately, it does leave the door open, as I said, for this federal parliament to overturn legislation. Can I go to some of the remarks that Senator Brandis had to make on behalf of the opposition. You cannot step away from the fact that both the Chief Minister of the ACT at the time, Jon Stanhope, and the current Chief Minister of the Northern Terri­tory, Paul Henderson, flew specifically to Canberra. Jon Stanhope made himself specifically available to appear before the Senate Legal and Constitutional Affairs Legislation Committee to support this legislation. That in itself showed me that both those governments and parliaments supported this legislation.

Another thing that impressed me, not only as a Territorian but as chair of that commit­tee, was that members of the Northern Territory Legislative Assembly Standing Committee on Legal and Constitutional Affairs flew here, including the Hon. Jane Aagaard and Kezia Purick. Members of that committee were in person at the committee hearings here in Canberra. I want to impress on people here that that was a bipartisan committee. That was a bipartisan attempt, to come down here and say, 'This legislation is okay; we support it.' But really what we in the Northern Territory are trying to do is get support for statehood. That is the endgame here. A 10-year process has been put in place by the Northern Territory government, which has been supported by the opposition. I am very impressed by the way in which both political parties have worked towards achieving this outcome. There has been a five-year consultation period and there will now be a five-year period of actually drafting a constitution and working out exactly the questions we will be asking Territorians.

This is where I differ from the comments that Senator Brandis put on record. The Chief Minister of the Northern Territory did come down here and, in endorsing the bill's proposals as they pertain to the Northern Territory, said:

It is a very basic principle that we are arguing for here. The 25 members of the Territory parliament, who make laws for the good governance of the people of the Northern Territory, are elected by Territorians and they are accountable through fixed-term elections … For the Commonwealth executive arm of government to have the power, essentially at the stroke of a pen, to make a recommendation to the Governor-General to disallow a law in the Territory undermines democracy in the Northern Territory.

So, yes, he was supportive of this legislation. However, both he and the members of the Northern Territory legal and constitutional committee fervently put to us that the endgame for them is a move to statehood. That is what they really want. In your pro­posed amendment, Senator Humphries, you seek not to consider this bill but only to consider the interests of the ACT, in examining the self-government act for the ACT. I say to myself again: the Northern Territory would miss out on both counts here. We would not get this legislation through and support the wishes of the Northern Territory parliament, the submitters and the representatives of the Northern Territory. This amendment does not suggest that we would look at a move to statehood in the Northern Territory. We do not want the self-government act in the Northern Territory reviewed. We actually want an endgame where, essentially, that act is repealed. So this amendment is not a win for the Territory either.

But I think we need to clearly understand that this piece of legislation 'ought to be about votes, not about vetoes'. That is a phrase that was written yesterday by a journalist in the Age. It ought to be about democracy, not about particular issues. It ought to be about, at least, taking a first step in recognising that the Northern Territory has competent governments. Those govern­ments are elected by the people of the Northern Territory, just like the New South Wales and the Victorian parliaments are elected by the people of New South Wales and Victoria. They put legislation in from time to time that people do not like, and that also happens in every other state in this country. But what this bill seeks to do is ensure that those laws are not overturned by the executive government of the federal ruling party. That is all we are asking for in this legislation.

It is a first step. It is not the best step and it is not the step that we want to achieve at the end of the day. We want to see legisla­tion go through this parliament that grants the Northern Territory statehood in our own right. This is another example of where you have to come in here time and time again and keep flying the flag for the Northern Territory. It somehow eludes me why it is always the case that people here in this building believe that they can continually interfere in what is happening in the Northern Territory. This is one piece of legislation where, for a change, we would get some positive interference. Yet it seems it will not be supported unanimously in this chamber.

I am speaking in support of this legislation, but I am speaking more in support of the view that the Senate Legal and Constitutional Affairs Legislation Committee expressed in section 3.6.1 of this report:

The committee places on record its strong support for statehood in the NT …

The committee would also welcome any opportunity to work cooperatively with the NT Legislative Assembly Standing Committee on Legal and Constitutional Affairs towards achieving that goal.

I can say that, as Chair of the Senate Legal and Constitutional Affairs Legislation Committee, it is an issue that we will pick up and write to that committee about. Perhaps for the first time in the history of this coun­try, we might see a standing committee at a federal level and a state level come together to hold an inquiry or do some work together to achieve that outcome.

But let us be very clear here: what we want in the Northern Territory is statehood. We want to get to it in a measured way and in a bipartisan way where people of the Northern Territory are comfortable and confident about that on the day they vote yes. This legislation is just one step on the journey. It removes the power of the exec­utive arm to overturn our laws. Unfortunate­ly, it still leaves provision for the federal parliament to overturn our laws, and that is still not good enough. But, at the end of the day, this bill is certainly worthy of support. Unfortunately, Senator Humphries, I think that your amendment, again, really ignores the wishes and the wills of the Northern Territory and that there would be no benefit for us if your amendment actually succeeded.

Senator HUMPHRIES (Australian Capital Territory) (10:07): I move the second reading amendment standing in my name:

Omit all words after "That", substitute:

   "the Senate declines to consider the bill further, and:   (a)   notes the comments of the Legal and Constitutional Affairs Legislation Committee on the bill that "an approach which fails to look at the broad range of issues affecting the autonomy of the ACT and the NT may not be the most appropriate way of addressing outstanding self-determination matters in those territories, and may not ultimately represent the most considered solution. The committee believes that a system­atic and holistic review of self-government arrangements in the ACT and the NT holds merit, and would help to address some of the specific issues raised during this inquiry.";   (b)   affirms that the process by which the Australian territories move towards greater legislative independence, consistent with the overall framework of the Australian Federation, should continue, but that a more systematic and comprehensive approach is to be preferred; and   (c)   calls for a full review of the Australian Capital Territory (Self-Government) Act 1988 in lieu of piecemeal amendments to that Act".

I will come back to speak about that a little more later. The question that I ask today in looking at the Australian Capital Territory (Self-Government) Amendment (Disallow­ance and Amendment Power of the Commonwealth) Bill 2010 that Senator Bob Brown has put before the chamber is: what garments does that ultimate populist, Senator Brown, parade around in the Senate today? He appears to be wearing the clothes of the friend of the territories—the man who cares deeply about territorians and their rights to make decisions for themselves, the man who is the champion of regional autonomy, the man who stands up for Canberra against the federal government. This disallowance bill is brought forward to prevent the ACT, the Northern Territory or Norfolk Island being pushed around by ministers in a federal government. This bill gives expression, presumably, to ideals of self-determination which were inherent in the self-government acts of the 1970s and 1980s.

There is something about that image of Senator Bob Brown today which does not seem quite right. Something does not quite gel about Senator Brown as the champion of the second tier of government in this country. Something is more akin to a masquerade than to reality, because I recall a very differently attired Bob Brown not all that long ago. I recall that Dr Bob Brown, as he then was, came to national attention in the 1980s as the scourge of the Tasmanian government that wanted to build a certain dam, and Dr Brown argued that the conflict over the dam to be built in Tasmania should be resolved in a certain way. How did he want that resolved? He wanted it resolved by the federal government interfering and inter­vening in the affairs of the self-governing Tasmanian polity to stop the building of that dam. Where were the rights of territory or state governments at that stage of Senator Brown's career?

People might say that perhaps Senator Brown today feels differently about the territories than he felt about Tasmania back in the 1980s. He is now a member of parliament; perhaps he has a different view. I am not sure that that is the case either. Senator Brown's record with respect to the territories is not a lot better. I look at Senator Brown's bill, the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, which was introduced by Senator Brown to override the rights of the self-governing Northern Territory to legislate in favour of mandatory sentences for certain people committing crimes. Senator Brown was unhappy with that and was quite comfortable in 1999 to introduce legislation to override the rights of the Northern Territory to legislate in that way. I have had this debate with Senator Brown before and I know what he is going to say. He is going to say, 'We were justified in intervening in the affairs of the Northern Territory at that time because we were dealing with a fundamental human rights matter which cut across Australia's international obligations under treaties; therefore, despite the principle which I strongly adhere to being violated, it was okay to intervene in the Northern Territory on that occasion.'

Unfortunately, Senator Brown's record of intervention in the affairs of self-governing states or territories does not end there, because in 2003 Senator Brown returned to this issue with a motion of disallowance. Bear in mind that he is now moving a bill in the Senate to stop disallowance of territory legislation. Back in 2003 Senator Brown was quite happy to move a motion of disallow­ance in this place to prevent a certain road project proceeding in the Australian Capital Territory, the widening of the Gungahlin Drive extension, despite the fact that it was supported by the then territory government, because Senator Brown did not approve of the building of that road. He did not like the idea of that road being built and did he want the territory to make its own decision about that at that stage? No, he did not. He knew better. He would bring the might of the federal parliament down on the ACT and prevent the building of that road.

Senator Brown has no credibility on such issues. Senator Brown is no friend of territory autonomy. He is in this respect an opportunist, happy to champion the rights of territorians to legislate when he agrees with what they propose to do with that power and equally happy to trash territory rights when he believes that his interests are not being served. You may say that today he is not talking about the right to interfere or not; he is talking about the way that you interfere. At the end of the day, Senator Brown, it does not really make much difference. If you are going to do somebody over, the way in which you do it does not have as much bearing on the matter as the fact that you are doing them over in the first place.

The coalition is not going to play along with the cynical game that Senator Brown is playing here today. There are serious issues about the form and the effectiveness of self-government, certainly in the ACT, and I suspect my colleague Senator Scullion—and we have heard from Senator Crossin already—will flag questions about the effectiveness of self-government arrange­ments in the Northern Territory. Those are real issues which deserve systematic, careful examination by the federal parliament, not piecemeal legislation designed more for political purposes than to advance a system­atic examination of what is wrong and what needs to be fixed about the institution of self-government in those places. This bill does not address those fundamental issues, issues that Senator Crossin talked about that I know vex Senator Scullion. This bill is an oppor­tunistic intervention to clothe the Greens in the most favourable electoral light, not an attempt to fix what I think we all know needs to be addressed.

I have moved a second reading amendment which first of all acknowledges the findings of the Senate Legal and Constitutional Affairs Legislation Committee that there are issues which simply have to be addressed and which this legislation does not address. The second reading amendment affirms the process by which the states and territories move towards greater legislative independence consistent with the framework of Australian Federation. In the case of the Northern Territory, that may well include statehood within a few years. That is probably not the case for the ACT, but certainly the ACT's need to overhaul the institution of self-government, which is now more than 22 years old, is a real and urgent need and, again, the piecemeal approach taken by this legislation is not a satisfactory solution to that problem. The amendment calls for a full review of the Australian Capital Territory (Self-Government) Act. If a colleague, particularly Senator Scullion, supports the view that the Northern Territory should also be included in such a review, I am very happy for that to occur. Indeed I would foreshadow that in the next few sitting days Senator Scullion and I will put forward a matter for the Senate to consider with respect to the question of the structure and future of self-government in the Northern Territory and the ACT.

I hear the support of the Labor Party for this bill and I note that there is a pretty large measure of cynicism in that position as well. I recall it was only three years ago that the Labor Party was perfectly content to support the decision of then Prime Minister Kevin Rudd to intervene, through the disallowance power, to overrule the then-proposed resurgence of civil unions legislation in the ACT—legislation which had been proposed during the Howard government and which the ACT government came back to propose again when the Rudd government was elected. Of course, the Rudd government at that stage rebuffed that suggestion very clearly, and the senators who today rise to tell us what a wonderful idea this bill is were perfectly happy to use that power back in 2008.

Senator McLucas: Not true, Gary.

Senator Humphries: It is true.

Senator McLucas: No, it's not true.

Senator HUMPHRIES: If you want, Senator McLucas, I will table the press statement that was made at that stage. You did not use the power because the ACT government backed down. You did not carry it through but you threatened to use it.

The DEPUTY PRESIDENT: Senator, through the chair, please.

Senator HUMPHRIES: Yes, Mr Deputy President. Let us not be holier than thou. When it suited your purposes you were quite prepared to use this power in this way. This is a process bill. It is about how decisions are made affecting the powers of territories. It is not a substantive bill about those powers, and those issues do need to be addressed and in other ways they will be addressed. I would prefer that they were addressed through a comprehensive review of the status of self-government, not through some piecemeal approach. That is the appropriate way to deal with this. I represent the ACT. I understand what I think the people of this territory aspire to and want. I do not think they want the institution of self-government to be toyed with by federal politicians. They want these issues to be dealt with systematically and comprehensively. I believe the citizens of this territory would welcome an opportunity to engage in a full, comprehensive consult­ative process to examine the status of self-government here. That is the better approach, not the approach inherent in this very piecemeal piece of legislation.

Senator SINGH (Tasmania) (10:17): I rise to make a contribution to the debate on the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Common­wealth) Bill 2010. Obviously, I rise as a senator from what is clearly Australia's smallest state, but a state that has had responsible government for over 150 years and one that is fiercely attached to its democratic institutions. Tasmania is also a place with a profound sense of identity—an island which has a particular tradition, a unique history and strong sense of commun­ity. Tasmania is a special place, a place with which I am deeply connected, and a place to which as a citizen—as a Tasmanian—I feel a sense of belonging. I belong to Tasmania. And Tasmania belongs to those communities who have had the honour of calling themselves Tasmanians.

We have the oft-remarked right of being well represented in this place, a right that allows our members of parliament to connect with our constituents at a very close level. At a state level, we have a particular electoral system, one which I know the other Tasmanian senators in this place know very well. It is the Hare-Clark system—shared with one of the territories with which this bill is concerned—which gives people the oppor­tunity to choose from amongst a wide range of candidates to find the one who best reflects their views and by whom they want to be represented. If those views are not carried to the parliament and reflected in the laws of the state, then the representative will be held to account at the next election. This is a very basic expectation of a democracy. And it is a very basic conclusion of the kind of belonging about which I spoke a moment ago. When one of those elements is not present in a system of governance, then it is difficult to call that system fully democratic. It is difficult to say that connection between a people and their place has been respected.

The way the law operates at the moment does not respect the important principle that people should be able to elect people to represent them, and that those represent­atives should have the capacity to deliver on the promises that they make and the values they espouse. This bill is about enabling the Australian Capital Territory and the Northern Territory to shape their own futures in a more democratic way. Both territories have proven themselves over a long period of time to be more than capable of governing them­selves in a responsible way, in the same web of interdependency between the levels of government in which the states participate. In fact, the ACT especially has led the way on a number of issues, and I want to take a moment to reflect on the very positive legacy left by Jon Stanhope and, in doing that, reject the characterisation of him made earlier in this place by Senator Brandis. Under Jon Stanhope's leadership, and importantly reflecting the values of the people of the ACT, his government led the nation on issues of rights, an important example of which is the Human Rights Charter.

This bill does not remove the interdepend­ency and the checks and balances we expect in a federal and a national democracy. Under this bill, there remains parliamentary over­sight of the territories, and I am sure that is an issue about which future debates will rage. But it is notable that this bill is relative­ly conservative in that sense. It is not a wide-ranging constitutional reform. It is about honouring the principles of democracy that we have already declared in this place, some time ago, and the will of territorians as reflected in their legislative assemblies. And when there is a conflict between those wills, or if there is a need to act separately to territorial legislators, we will have a debate in this place, as we should. We should have to put our case in detail on particular issues. We should have to respect that the destiny of the territory should be up to the territories unless we can justify intervention.

No doubt governance in this country is a complex matter and the issues involved are complex. We have international obligations and we have national priorities. We have differing levels of capacity in our different institutions. But what should underpin all of that is an understanding that the will of the people should be respected wherever it is most clearly expressed. I believe, in this case, that this means we should respect the laws enacted by our territorial assemblies. As we are aware, these territories were created by acts of this parliament. Their legislatures are rightly subject to the deliberations of this parliament, not executive government. It is important that the Commonwealth parlia­ment enable the ACT and Northern Territory legislative assemblies to be independent, to be responsible and to be accountable to their citizens. That is what I believe this parlia­ment is for and what Australians expect. Australians do not expect people elected for a different role to be able to override the will of the territories lightly.

Senator CORMANN (Western Australia) (10:24): This bill is another example of the Green tail wagging the Labor dog. It has nothing to do with wanting to improve the self-governing arrangements that apply in the territories. This started in 2006 when the Howard government decided to exercise section 35 of the ACT act to disallow the ACT Civil Unions Bill. That is what got this process underway. If you look at this bill as it was originally introduced by the Greens, it did not then mention anybody other than the ACT. This had nothing to do with wanting to improve self-governing arrangements for the territories in Australia; it was entirely and exclusively driven by the Greens' desire to stop the then Howard government and subsequent governments preventing the ACT government legislating for civil unions in the Australian Capital Territory. In 2006 the Howard government made that decision and, as Senator Humphries indicated, Kevin Rudd as the then Prime Minister in 2009 took a very similar view. Because he had good relations with the then ACT Chief Minister, Jon Stanhope, no doubt they were able to organise these things behind closed doors and did not have to run through the whole process. But the effect was the same.

I want to correct something that Senator Lundy said. Senator Lundy suggested this is somehow about restoring territory rights, as if it were going to take things back to somewhere they had been before. The capacity for Commonwealth governments to make the sorts of decisions that the Howard government did in 2006 has been in this relevant legislation as part of the self-government arrangements since the word go. This is not new; this is not just something that came out of nowhere in 2006. The Howard government exercised an existing section in the existing act. As Senator Brandis and Senator Humphries have said, and as I am sure Senator Scullion will say, the coalition is very supportive of having a comprehensive look at how self-government arrangements can be improved. But this is not what is driving the Greens. The Greens are being driven by their social agenda in relation to same-sex marriage, euthanasia and other bits and pieces for which they cannot get support, despite repeated attempts, in any of the state parliaments.

As Senator Humphries indicated, it is not as if the Greens are consistent on this. There have been times when Senator Brown has wanted the federal government to overturn the state government of Tasmania on some­thing happening in that state. And when it came to mandatory sentencing laws in the Northern Territory Senator Brown was quite happy to see the Commonwealth override the Northern Territory legislation at that point in time. This has got nothing to do with a genuine commitment to improving the rights of territorians; this is entirely and exclusively driven by Senator Brown's desire to see legislation on civil unions and same-sex marriage and euthanasia become more achievable in the sorts of parliaments where he thinks that this sort of legislation has a chance to get up.

I just reflect on the fact that in 1997 this parliament voted to overturn the Northern Territory euthanasia laws. Whatever any­body's views on the substance of that matter, it was no doubt at the time a divisive debate. I was not involved as it was before my time. However, the Commonwealth parliament voted to overturn the Northern Territory euthanasia laws. No doubt that would have been a time when there would have been some robust debate inside the Northern Territory, among the good people of the Northern Territory, about how it could be that the Commonwealth parliament could do this. It was the year after the Commonwealth parliament here in Canberra made a decision about laws enacted by the Northern Territory in relation to euthanasia that the proposition of the Northern Territory becoming a state was put to a referendum. History shows that the people of the Northern Territory decided that they did not want to become a state at that point. I hear what Senator Crossin is saying and no doubt Senator Scullion will have similar views, and I know there is a bipartisan effort in the Northern Territory to continue the path towards statehood. I wish them very good luck with it. But right now the situation is that it is the Northern 'Territory'. The reason that is still the situation is because the people of the Northern Territory in 1998 voted against statehood. I was drawn to the additional comments that were made by former Labor Senators Forshaw and Hutchins, who were part of the inquiry into this legislation. I have to observe here that the fact the Australian Labor Party has decided to support this legislation is a very sad reflection on the current state of the Labor Party. The Labor Party once had courageous senators, like former Senators Hutchins and Forshaw, who were able to assess legislation as they saw it. I will just read from their comments:

This Bill should not be passed in its current form. It is flawed.

I could not have put it better. The quote goes on:

It will not achieve its stated objects. If enacted, this Bill will produce disparities between the legislation governing each of the territories and with the Commonwealth and the States.

Towards the end of their comments. Senators Hutchins and Forshaw observed:

It is not surprising that this Bill is technically flawed. Both this bill, and a previous bill proposed by Senator Brown in 2006, originally applied only to the ACT. They are clearly a reaction to the Howard Government's decision to use Section 35 of the ACT Act to disallow the ACT Civil Union's Bill. The proposed amendments to include the NT and Norfolk Island appear to have been an afterthought without any consideration of the consequences detailed above.

They recommend:

The Bill should be either withdrawn or not passed by the Senate.

Their final recommendation is:

We recommend that the Bill not be passed.

Former Labor Senators Forshaw and Hutchins do make the observation that the territories are not states. During the inquiry, the Northern Territory Chief Minister expressed support for the bill as it would be a 'small but significant step towards statehood.' As they observe:

This is not the expressed intention of the Bill. Any move toward statehood should be approach­ed in a serious and considered manner not piecemeal nor as a reaction to a particular decision.

That is exactly what Senator Humphries mentioned and what he is trying to address through the second reading amendment that he has moved.

I read in the media earlier this week that the Labor caucus—I should say the Austra­lian Labor Party caucus because we now have a true Labor senator among us in Senator John Madigan representing the Democratic Labor Party—decided to back the territories' autonomy because Australian Labor Party MPs, and I quote from an article in the Age on 16 August:

… received assurances that the bill would not lead to legalisation of same-sex marriage in the nation's capital.

A bit further on it says:

Caucus yesterday adopted the bill ''without controversy'' with members assured it was not about same-sex marriage.

But then:

A spokeswoman for ACT Chief Minister Katy Gallagher said it welcomed the decision of federal Labor but declined to comment on whether the territory would pursue same-sex marriage.

Why is that? If it is not about that, if they have got no intention of pursuing it, why wouldn't she just say so? I think that Senator Farrell has been sold a pup. I think that Senator Farrell should try and show a little bit of courage like former Senators Hutchins and Forshaw did. He is now part of an Australian Labor Party that will facilitate either civil unions legislation or same-sex marriage legislation in the Australian Capital Territory. If Senator Farrell's intention is not to see that happen then he should support an amendment to rule it out in the legislation here today. I can see that he is distracted and is not prepared to listen to the debate that is going on, even though he is here represent­ing the government. Hopefully somebody back in his office is taking clear note.

This bill is about the Greens tail wagging the Labor dog. This Australian Labor Party is totally captive to the Greens. The Greens are driving their agenda. This has not been initiated by the Australian Labor Party government. This has been initiated by the Greens and the Labor Party is just hopping in and backing it up. Why? If you are serious about improving self-government arrange­ments for the ACT and the Northern Territory, go about it in a serious way. Go about it in a strategic way, support a proper review, support a proper approach that does not sort out these things in a piecemeal fashion just because Senator Brown was upset that the Howard government exercised section 35 of the Australian Capital Territory (Self-Government) Act to disallow civil unions in the Australian Capital Territory. Senator Farrell, you might have been given assurances in the ALP caucus that this would not lead to legalisation of same-sex marriage, but the Chief Minister's office refused to rule it out when they were asked about it:

A spokeswoman for Chief Minister Katy Gallagher said it welcomed the decision of federal Labor but declined to comment on whether the territory would pursue same-sex marriage.

We used to have a Prime Minister in Kevin Rudd who was prepared to stand up to the ACT government in relation to this issue. Now we have a Prime Minister who is too weak. She is captive to the Greens. The Greens have bullied her into supporting this bill. Senator Mark Bishop, Senator Collins, Senator Farrell, Senator Stephens—where are they? At least former Senators Hutchins and Forshaw were prepared to stand up and be counted and call this legislation for what it is—a flawed bill that should not be passed.

If people like Senator Farrell on the Labor side were serious about representing true hardworking Labor voters, they would seriously reflect on what they are doing with this because there is now an alternative in the marketplace called the Democratic Labor Party. There are going to be people across Australia who are going to reflect very seriously on whether they should support the Greens-wagged Australian Labor Party or whether they should go to a true Labor party. I suspect you will find that people will turn away from the Australian Labor Party because of their support for bad pieces of legislation like this.

Senator SCULLION (Northern Territory—Deputy Leader of The Nationals) (10:37): It is very rare for me to rise in this place and feel sorry for those on the other side, particularly for my colleague from the Northern Territory, but I think it is reasonable to put on the public record why they are taking this position. The reason my heart goes out to them is I am actually quite sure the leather is softer on that side. It is a long time since I sat over there, but it was certainly a lot more comfortable. There are a lot of benefits that go with government which make you want to stay on that side.

The sad thing about Labor's position is that it has had a very light spray of green over all of its motives. It is really important to have a look at the motive today. Senator Crossin stood in this place today, as she always does on any issues in regard to the Northern Territory, and said that we are moving along towards statehood. I have been very pleased to stand in this place on the most recent issue, legislating for euthanasia, and I support her in that regard. If you look at the motive for all of this behaviour, it is simply to stay in government. That is the rawest deal. Of course the Greens have a great deal of influence, as they should in those circumstances, to ensure that this government does what it is told. Today we see the Labor government being pretty compliant and the Greens should be very pleased with that—it seems to be behaving appropriately and it is not being too naughty or doing things that the Greens do not require.

If we are looking to motive, perhaps we should examine the Greens' motives. Motive is very important in life. Why is it that we are moving along with this? Why is it that, suddenly, Bob Brown has a terrific love affair with the territories? He is very keen on the territories and on the people who live in the territories, but he is particularly keen on the legislation in the Northern Territory. As has been indicated today, Bob Brown hardly seems to have a consistent approach. He is, today, basically saying that the Common­wealth should not interfere with the Northern Territory or with the Australian Capital Territory—'The poor devils, we should allow them exactly the same rights as a state.' It sure seems odd. I do not know whether it was a different bloke, but whoever it was, Senator Brown, I recall him standing in here saying: 'Let's overturn the mandatory sentencing laws in the Territory. How dare they take their own stand in the Northern Territory and have their own rights to determine how they deal with the criminal justice system. Let's use the Common­wealth's powers in this place, in this Senate, to overturn them.' You can understand why I am a little bit confused in that regard.

I wonder what the motive is. You cannot accuse the Greens of not being organised or of not having a motive. They do have a motive. There is a very clear motive here and it has been indicated earlier. The cat has already been belled. If Katy Gallagher was not happy to stand up and say that this is all about introducing same-sex marriages in the Australian Capital Territory, the previous Chief Minister, Mr Stanhope, certainly was. He said: 'Absolutely. Looking forward to introducing same-sex marriages in the Australian Capital Territory.' In regard to this piece of legislation that those on the other side have been forced to accept, they have been given foolish assurances and have been foolish to accept those assurances. Those on the other side have accepted that that is the case.

Senator Cormann: She is not ruling it out.

Senator SCULLION: Of course Gallagher did not rule it out because that is exactly what is going to happen. As sure as night follows day this will happen. Perhaps I can just briefly paint the picture of how it will occur. This legislation does, in effect, say that instead of using an executive arm of government to deal with issues that are not within a state's capacity to legislate on—things like marriage, starting your own navy, having your own currency, taxation and immigration—if the territories play with that area, we are going to have to come back and have a full debate in parliament. That takes a bit of time. The scenario is that, if the Australian Capital Territory passes a law on Monday, we might have a bit of a think about recalling parliament, if that is the will of the government, and maybe we will have an emergency session a week later. If, during that period of time, people are lawfully married, for example, in the Australian Capital Territory, what happens to them? They were lawfully married. Does the Commonwealth then come back and say, 'We've got some weird retrospectivity in all of this about how we unwind this mess.'

That is what I believe the motive for this is. If you wish to have same-sex marriages, there is a process to do that. I argued strongly in this place during the debate on one of the previous contributions from Senator Brown in the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010. I know that Senator Brown is a strong proponent of introducing euthanasia. I supported that bill not on the basis of whether I thought euthanasia legislation was being supported but because it is entirely the right of a state to make that decision. I also would expect, if the Northern Territory decided to start its own navy and its own currency or decided to start its own immigration system, that there would be an immediate action from the executive to deal with that. That is just a little about motive. Without a doubt that is what is going to happen.

Those people on the other side who think they are not part of something that will lead to what I have just described are, at best, fools. I know the comfort, vaguely recalled in my distant past, of being on that side. But remember: when this happens, your constituents will remember those who led them to that circumstance. If you want to introduce same-sex marriage, there is a way to go about that: you come to this place—because it is the Commonwealth which should legislate on those matters. Do not use some sort of a backdoor agenda to deal with these issues. Sadly, in the Northern Territory a few people are quite excited. They have rung me and said that they are really excited that this is going to give them more rights in the Territory. Once they have all the infor­mation they then understand that this is not another step forward in moving towards statehood.

I would just like to speak briefly about the foreshadowed amendment from Senator Humphries. Senator Crossin said: 'This is something we can't possibly support because it doesn't do anything for the Northern Territory.' I agree with that. She said, 'We don't want the self-government act revised.' Of course I agree: we want it abolished; we want to move to statehood. The Australian Capital Territory and the legislative framework are in an entirely different place to where we are in the Northern Territory, so I agree completely with her.

I would like Senator Crossin and people in the Territory to reflect on another contri­bution from Senator Humphries. In the next week of parliament we will be jointly submitting a process that will start a fair dinkum look at self-government in the Aust­ralian Capital Territory and the movement to statehood in the Northern Territory. It is not just a process on a couple of very small squeaky wheels. This will be a fair dinkum process with the motive of moving to strengthen self-government in the Australian Capital Territory and moving to statehood in the Northern Territory. That is the motive. That is what it will be about.

For those Territorians who think that this will somehow advance statehood, I can promise you that being astride a green horse with squeaky wheels is not the way to move forward. Look to the motive. This is an insult to those people who are actually striving for statehood in the Northern Territory and looking for stronger self-government in the Australian Capital Territory because it is about none of those things. On this side, we are clear-eyed and bright and we can see through the motive for this legislation. We do not accept that this is about strengthening issues for the Northern Territory and the Australian Capital Territory. That is why we will not be supporting this legislation.

Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (10:46): I rise as the responsible minister, representing the Minister for Regional Australia, Regional Development and Local Government, Mr Crean, to contribute to the debate on behalf of the government. On 4 May 2011, the Senate Legal and Constitutional Affairs Legislation Committee reported back to the Senate on its inquiry into the Australian Capital Territory Self-Government) Amendment (Disallow­ance and Amendment Power of the Comm­onwealth) Bill 2010, together with proposed amendments applying to the Northern Territory and Norfolk Island.

The bill and amendments circulated by the Greens sought to abolish the power of the Governor-General to disallow or recommend amendments to territory legislation by repealing section 35 of the Australian Capital Territory (Self-Government) Act 1988, section 9 of the Northern Territory (Self-Government) Act 1978 and section 23 of the Norfolk Island Act 1979. That is what this bill is about. It is moved by the Greens to abolish the power of the Governor-General to disallow or recommend amendments to territory legislation. It is not about a whole range of other issues, some of which have been touched on.

The committee report contained two recommendations. The first recommendation of the committee is that the Senate pass the disallowance bill subject to the following amendments: firstly, the disallowance bill apply only to the ACT and the Northern Territory; secondly, the removal of referen­ces in clause 4 of the bill that purport to provide relevant territory legislatures with exclusive legislative authority and responsi­bility for making laws; and, thirdly, clause 4 be further amended to more accurately reflect the current power of the Governor-General to recommend amendments to territory laws. The second recommendation is that Norfolk Island be excluded from the operation of the disallowance bill until further evidence is provided on the need for change in that jurisdiction.

The government agrees with the object­ives of this bill in removing the power of the federal executive to override legislation in the ACT and the Northern Territory. However, given the technical amendments required, the government has circulated its own amendments to this bill. Again, I emphasise that this bill is about removing the power of the federal executive to override legislation in the ACT and the Northern Territory. The issues that have been referred to—whether it is euthanasia or same sex marriage—are determined and governed by other legislation of the Commonwealth. Those issues are not what this legislation is about.

The amendments will support the repeal of section 35 of the Commonwealth Austra­lian Capital Territory (Self-Government) Act 1988 and section 9 of the Northern Territory (Self-Government) Act 1978 and incorporate the committee's suggested amendments. The government agrees with recommendation 2 of the committee that Norfolk Island should be excluded from the operation of the disallowance bill, given the differences between Norfolk Island and other self-governing territories. The recent passage of the Territories Law Reform Act 2010 also provides the Commonwealth with increased oversight and scrutiny of Norfolk Island legislation to ensure it is consistent with the national interest. It would therefore be inconsistent for the disallowance bill to apply to Norfolk Island.

The bill before the Senate today, with amendments that I have outlined, will remove the ability of the executive govern­ment to veto legislation enacted by the ACT and the Northern Territory legislatures. As these acts stand, the executive has the power to override the decision of the democratically elected legislatures of the ACT and the Northern Territory. This bill goes to the rights of those in the territories to determine the good governance of the communities in which they live. The architects of the Constitution predicted that there may be times when the national interest must be considered when looking at territory laws. That is why they drafted section 122 that allows the parliament, not exclusively the executive, to make laws for the government of any territory. As I have already said, this parliament still will have a right to determine laws in respect to the territories. This legislation that we are considering is about removing the power of the executive but not this parliament. For all these reasons, the government will support the passage of the bill with these amendments.

A second reading amendment has been moved by Senator Humphries. The govern­ment will not be supporting the amendment. I will make a couple of brief remarks as to why we will not be supporting it. Firstly, the issues raised in the amendment have been canvassed in the Senate inquiry into the bill. The committee concluded—in its majority report, at least—that the bill would improve the democratic rights of the people of the ACT and the Northern Territory and the passage of the bill would provide just recognition of the maturity and capacity of the ACT and Northern Territory legislative assemblies since they attained self-government.

The Australian government has already indicated to the ACT government that it would welcome a review of the ACT (Self-Government) Act. Such a review should be driven by the ACT government and its citizens, and the Australian government would welcome considering such a review. The timing of a comprehensive review should not delay the implementation of the practical democratic benefits provided by this bill.

I note that both the ACT and Northern Territory Chief Ministers are on the record—or at least, in the case of the ACT, the previous Chief Minister; I am not aware of anything on the record from the current Chief Minister—as supporting the bill. For those reasons, the government will not support the second reading amendment.

Senator BOB BROWN (Tasmania—Leader of the Australian Greens) (10:53): I thank all contributors to the debate on this very important piece of legislation to foster improved democratic rights for the citizens of the Australian Capital Territory and the Northern Territory. I will not go over in detail the reasons for the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010 because it has already been before the parliament and indeed through a thorough committee process, with the committee having endorsed the bill as it comes before the Senate today.

I note that there will be a number of amendments from the government. These reflect amendments that the Greens also had drawn up, and we will simply support the government amendments, which have the effect of extending this legislation to give the advantages of it to the voters of the Northern Territory and which cover some other related matters.

The Constitution says in section 122, with the headline 'Government of territories':

The Parliament—

it refers to this parliament, of course—

may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth—

and that is what is in process here today. A couple of decades ago this same parliament legislated to transfer its power under the Constitution to make laws for the territories to the executive—that is, the minister of the day. As has been noted in public debate, that means that with the stroke of a pen a minister can override the outcome of a deliberated vote following a debate of the elected representatives of the assemblies either in Canberra, in relation to the ACT, or in Darwin, in relation to the Northern Territory. This bill simply goes back to where the Constitution would have it—that is, the territories will effectively legislate unless or until a vote of both houses of parliament overrules legislation or passes legislation for either of the territories. We cannot change that provision of section 122 or section 123, which also deals with limitations on the powers of the states, unless we go to a referendum.

There is the prospect that the Northern Territory, which I think is moving in that direction again, will eventually end up subject to a referendum. I would not discount the possibility, as others have, that in some future time Australians might want to give the growing population of the Australian Capital Territory the ability to have self-determination through a form of statehood which will provide for all the amenities of this being the national capital but will provide for enhanced powers for the people of the Australian Capital Territory. That is a matter for a future debate.

This legislation today simply restores at least the right of the assemblies to pass legislation for their citizens without being overridden by a minister without reference to this parliament. It is as simple as that. I take on board the issues of equal marriage and euthanasia that have been raised in here by the opposition today, but they know full well—Senator Humphries knows very well—that this legislation does not alter that. In fact, it enhances the powers of the Australian Capital Territory to legislate at least in the matter of equal marriage, if it wants to, but that is entirely a matter for the territory, as it is a matter for New South Wales, South Australia, Queensland, Western Australia and Tasmania.

Senator Cormann: Equal marriage—so here we go; here we have it.

Senator BOB BROWN: Senator Cormann interrupts. If he does not think that is a right that the people of the Northern Territory or the ACT should have and if the opposition in this place wants to have that right withheld from the people of the territories, it is flying in the face of its own history, because it was Mr Kevin Andrews who brought in the legislation that overrode the ability of the territories to legislate in the matter of euthanasia back in 1996, and it was passed by both these houses. That is a prohibition which is not altered by this legislation today. That prohibition, which was supported by a free vote of both chambers—I voted against it, but it was still supported by a free vote of both chambers, with a majority of three, as I recollect, in the Senate—will remain on the Northern Territory assembly and on the ACT assembly unless or until some future vote of this parliament changes it. In that sense, this does not restore or give the measure of equality of the territories with the states that you might think at the outset.

I notice that Senator Brandis has said this morning that the opposition does not have the problem with equal marriage that the government has because it is unified—it is en bloc opposed to it. I had not heard that before. That is news, and I am surprised—

Senator Brandis: It's always been our policy.

Senator BOB BROWN: Senator Brandis repeats that it is the case that within the Liberal Party—note the name—members do not have the ability to have a free vote on what should be a matter of conscience. But that is up to that party and its several members to determine; it is not a matter which relates to this vote today. This legisla­tion is important in enhancing democracy. It is one of the four pillars of the Greens party's established philosophy that we do enhance democracy where we can. I notice some criticism that I have moved in the past to have the parliament—never to have a minister but to have the parliament—use these powers to, for example, override the locking up of Aboriginal children in jail in the Northern Territory because they stole biscuits. We will remember the outcome of that, which was that the legislation did pass the Senate. It went to the House and then Prime Minister Howard contacted the Chief Minister of the Northern Territory and offered the funding which ceased that practice of locking up Indigenous children, which had led to a horrible outcome regarding one child. It has not occurred since then, so it was an outcome which was worth while at that time. The ability of the parlia­ment to legislate or to put pressure upon the territories remains under this legislation. There is nothing inconsistent with my behaviour in wanting good outcomes and the proposal that is before the Senate today.

That said, we will oppose Senator Humphries's effort to not have this bill considered. I would have thought voting it down is one thing; to try and put it on the never-never and come to no conclusion, as Senator Humphries wants to do, to leave the voters of the ACT and the Northern Territory in limbo, would be the worst outcome possible. It is bucking the need for there to be a determination. Finally, I thank the chief ministers of both territories for their support, and most recently Katy Gallagher, the Chief Minister of the Australian Capital Territory. She has written to all members saying:

The Committee—

she is referring to the Senate committee—

has recognised that our Assembly and its Members have "demonstrated a high level of maturity and competence over many years". I believe, as you do, that it is time the ACT's self-government arrangements reflected this and it is my sincere hope that you will support the passage of this Bill to allow the citizens of the ACT to have their views represented in a legitimate, democratic parliament—the birthright of all Australians.

I could not put it better myself. I look forward to this legislation passing this place and hopefully passing the House of Repre­sentatives so that it will soon pass into law. Question put:

That the amendment (Senator Humphries's) be agreed to.

The Senate divided. [11:07]

(The President—Senator the Hon. JJ Hogg)

Question negatived.

Original question agreed to.

Bill read a second time.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (11:11): I understood that there were some government amendments. I have committee stage amendments as well which are about to be circulated in the chamber. I respectfully suggest that we deal firstly with the government's amendments, which I think are uncontroversial. I do not know whether the opposition's amendments will be controversial or not.

Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (11:11): I am happy to deal with our amendments, but I understand there are some Greens amendments and that they are going to be withdrawn. Perhaps we could sort out the status of those first because they are first on the running sheet I have.

Senator BOB BROWN (Tasmania—Leader of the Australian Greens) (11:11): As I indicated in my second reading contri­bution, we will not be moving those amend­ments because the government's amendments are the same—drafted a little better, I might add, because they came after the committee's report. So we will be supporting the govern­ment's amendments to the same effect.

Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (11:12): Thank you. We will now deal with the government's amendments that have been circulated. I do not want to be accused of speaking too long. Are we going to get a copy of the opposition amendments, Senator Brandis?

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (11:12): They will be circulated momentarily.

Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (11:12): by leave—I move government amendments (1) to (4) on sheet CD216:

(1)   Title, page 1 (lines 3 and 4), omit "or amend any Act of the Legislative Assembly of the Australian Capital Territory", substitute "or recommend amendments of enactments of the Australian Capital Territory or laws of the Northern Territory".

(2)   Clause 1, page 1 (lines 7 to 10), omit the clause, substitute:

1 Short title

      This Act may be cited as the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011.

(3)   Clause 4, page 2 (lines 9 to 18), omit the clause, substitute:

4 Objects of Act

      The objects of this Act are:   (a)   to remove the Governor-General's power, under section 35 of the Australian Capital Territory (Self-Government) Act 1988,to disallow an enactment (or part of an enactment) of the Legislative Assembly for the Australian Capital Territory or to recommend amendments of any enactments; and   (b)   to remove the Governor-General's power, under section 9 of the Northern Territory (Self-Government) Act 1978,to disallow a law (or part of a law) of the Legislative Assembly of the Northern Territory or to recommend amendments of any laws of the Northern Territory.

(4)   Page 3 (after line 5), at the end of the Bill, add:

Schedule 2—Amendment of the Northern Territory (Self-Government) Act 1978

1 Section 9

Repeal the section.

2 Section 10

Omit "or disallows a law or part of a law".

3 Section 10

Omit ", or for the disallowance, as the case may be,".

4 Section 10

Omit "or the date of the disallowance, as the case may be".

As Senator Brown has referred to, and as I referred to in passing in my second reading speech, we have had the Senate Legal and Constitutional Affairs Legislation Committee report and the amendments reflect the issues raised in the report. We note that the private senator's bill was referred to the Senate Legal and Constitutional Affairs Legislation Com­mittee for consideration on 2 March 2011. While the Senate committee strongly suppor­ted the removal of the Commonwealth's power to disallow ACT amendments and Northern Territory laws, the committee suggested amendments to the bills and consistent with the recommendations of that report of 4 May the government moved the amendments that have been circulated to the Senate.

The main purpose of the government's amendments are to include a schedule amending the Northern Territory (Self-Government) Act 1978 to remove the Governor-General's power to disallow laws of the Northern Territory Legislative Assem­bly. There is an amendment to exclude Norfolk Island from the operation of the bill. The government amendments to the dis­allowance bill will exclude application of the bill to Norfolk Island. As the committee noted, Norfolk Island's population is on a very different scale to that of the ACT and the Northern Territory. The passage of the Territories Law Reform Act 2010 provides the Commonwealth with increased oversight of Norfolk Island legislation to ensure it is consistent with the national interest. It would therefore be inconsistent for the disallowance bill to apply to Norfolk Island. The amend­ment to the disallowance bill would also remove from clause 4 words that purport to confer 'exclusive legislative authority and responsibility for making laws' on the ACT. As noted by the Senate committee, that is a significant misstatement of the law, apparently, as the Commonwealth's plenary power under section 122 of the Constitution to make laws 'for the government of any territory' will remain unchanged. The government's amendments would change clause 4 to more accurately reflect the current power of the Governor-General to recommend amendments to ACT enactments and Northern Territory laws. Those are the reasons for the government's amendments that we are considering in committee.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (11:15): On behalf of the opposition, I indicate that the opposition agrees with the amendment to exclude Norfolk Island from the operation of the bill for reasons that I outlined in my speech on the second reading. We do not agree with the extension of the operation of the bill to the Northern Territory because we do not agree with the principle of the bill at all for the reasons I explained.

Question agreed to.

Senator BRANDIS: We have opposition amendments that are about to be circulated, and I apologise that they have not been circulated already, but I will just foreshadow what they are. The effect of the amendments would be to add the words, at the end of the principal operative provision of the bill, 'if the enactment is inconsistent with a law of the Commonwealth' and to add the further sentence, 'Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961.'

The purpose of the opposition's committee stage amendments is to do two things. First of all, it corrects an anomaly that would appear in the bill were it to be carried in its current form—that is, as honourable senators should know, under the combined effects of sections 51 and 109 of the Constitution the states may not legislate in areas reserved for the legislative power of the Commonwealth if there is an inconsistency between a Commonwealth law passed under one of the section 51 heads of power and a state law. That inconsistency can arise in one of two principal ways. There may be a direct incon­sistency—for example, if there were to be a Commonwealth law passed under a section 51 head of power which provided to a certain effect and a state law on the same topic which provided to the opposite effect. As honourable senators should know, that is the plainest case of inconsistency under section 109 of the Constitution, and as a result of the operation of that provision the state law would be struck down.

But very commonly a state law is found to be inconsistent with a Commonwealth law not because of a direct inconsistency but because the Commonwealth law—to use the phrase that the High Court uses—covers the field. So if, for example, the Commonwealth were to pass a law under a section 51 head of power which was intended to be comprehen­sive in relation to that particular topic, then an inconsistent state law, or a state law which sought to regulate the same topic in a manner at variance from the manner in which the Commonwealth law sought to regulate the topic, would also be struck down under section 109 because the Common­wealth law would be considered to cover the field. We in the coalition consider that the Marriage Act is such a law, although I acknowledge that that proposition is contro­versial and that some, including Professor George Williams, have opined that that is not the case, particularly in relation to same-sex marriage.

If this bill were to be passed in its existing form, without the qualification the opposition seeks to introduce, we would have the unusual situation that the territories would have broader legislative powers than the states because section 109 of the Constitution applies to state laws, not to territory laws. So the device of this amendment is to apply the same test to territory laws as section 109 of the Constitution imposes upon state laws. There is a controversy about the reach of the Marriage Act 1961 and, in particular, the reach of the 2004 amendments to the Marriage Act introduced by the Howard government—with the support at the time of the Labor Party, I might say—which introduced section 88EA into the Marriage Act which prohibited same-sex marriage. The qualifying words of the opposition's amendments, which are really inserted out of abundant caution, are to make it perfectly clear that an inconsistency between a territory law in relation to marriage and the Marriage Act will result in the Marriage Act prevailing. The better view, in my respectful opinion, is, as I said earlier, that the Commonwealth Marriage Act covers the field in relation to marriage, and that is the view of most constitutional lawyers. There is a minority view that it does not. In order to deal with the possibility—argued for, for example, by Professor George Williams—that the Marriage Act does not effectively prohibit same-sex marriage, these additional words are introduced to ensure that no territory law may be inconsistent with any provision of the Marriage Act, including in particular, though it is not set out specifically, section 88EA. That is the reason for the opposition amendments.

Senator BOB BROWN (Tasmania—Leader of the Australian Greens) (11:23): The Greens will not be supporting these amendments. You can see from the process in committee that this is not an eleventh-hour amendment; this is a twelfth-hour amend­ment after a process was put in place that a week's notice be available for private members' time legislation so that parties could get their act into gear. Not only that; it has been known for many months, in fact since last year, that this legislation was coming down the line. Here we have the opposition, through Senator Brandis, bringing in amendments which were not circulated, have not been notified and which are an afterthought. They are so important to the opposition that they are an afterthought in the wake of huge publicity and a committee investigation into this matter!

Let us look at Senator Brandis's amendments, which have now been circu­lated in the wake of his submission, and see what they do. They run totally contrary to the spirit of the legislation that is before the chamber. Senator Humphries may agree with them, but again they cut down the effort—talk of equal rights here!—to give equal rights to the voters of the territories, as against those of the states, in all matters as far as possible. I have explained that euthan­asia is prohibited by legislation through this parliament, but the matter of marriage is not. What Senator Brandis is arguing is that we should, on the very day we are trying to enhance and make more equal the rights of the voters of the Northern Territory and the Australian Capital Territory, bring in a provision that cuts down those rights in the matter of marriage—because it will be a prohibition that is not there in state law.

The whole thrust of this legislation is to give the territory assemblies, as far as is practicable, the same rights to pass laws for their citizens as the state assemblies have. It is as simple as that. So this is a last-minute effort to pre-empt that principle of democracy. I am surprised that Senator Humphries—and presumably Mr Sezelja, the Leader of the Opposition in the Australian Capital Territory is in very direct commun­ion with Senator Humphries on this matter—wants to cut down the rights of the people of the ACT to deal with marriage laws in ways that are not any different from those of the states. This cuts across the whole principle of the legislation. The Greens will not be supporting it.

Senator CORMANN (Western Australia) (11:26): Senator Bob Brown has just exposed, for all of us to see, what this is all about. The Labor Party caucus has been deceived. The Labor Party caucus agreed to support this legislation on the basis that it would not lead to legalisation of same-sex marriage in the nation's capital. The Labor Party caucus adopted support for this bill—and without controversy, it was reported—because members were assured it was not about same-sex marriage.

In his contribution just now Senator Brown indicated that the Greens would not support the very sensible amendments that are being put forward by Senator Brandis, amendments which would ensure that the assurances given to Labor Party members and senators would be enshrined in this legislation. Here it is; we can see very well what this is about. The Labor Party has been deceived. Of course we are not surprised that the Greens will not support these amend­ments. But if the Labor Party is true to the assurances that were given to members and senators in the ALP caucus then the Labor Party should support the amendments that will be moved by Senator Brandis on behalf of the coalition.

At the end of the day, we always knew that this bill was not about improving self-governance arrangements for the ACT or the Northern Territory. This bill is about promoting the cause of same-sex marriage, because Senator Brown knows that the best chance of getting this passed in any jurisdiction is by facilitating it, enabling it to happen, in a territory parliament. We heard: 'No, no, no—this is about improving the democratic rights of territorians. It has nothing to do with same-sex marriage. You want a guarantee that this is not about same-sex marriage? We are going to give it to you.' Katy Gallagher, the ACT Chief Minister, was not prepared to give that guarantee. She declined to comment when she was asked whether the territory would use this bill to pursue same-sex marriage. But Senator Brown has let the cat out of the bag. Senator Brown, in his contribution to the motion foreshadowed by Senator Brandis, has made it very clear what this bill is all about. All this amendment does is enshrine in legislation the guarantees that were given to the Labor Party caucus so that the Labor Party caucus became comfortable to support a Greens initiated bill.

I say again: this is all about the Green tail wagging the Labor Party dog. This all about a Prime Minister who is too weak to stand up to Senator Brown. This is about a Labor Party caucus that is too weak to stand up to the Greens agenda, which many of them do not support. This is all about hanging on to government by the fingernails at any cost. This is a government that is prepared to compromise anything they stand for if it helps them to stay in government.

If the Labor Party wants to keep any semblance of political integrity in this debate, it will support this amendment because all this amendment does is enshrine in this bill the promise that was made to the Labor Party caucus about what this legislation would do and what it would not do. Labor Party members and senators were told that what it would not do is lead to same-sex marriage in the nation's capital. Senator Brown has just said that he does not want this bill to be amended such that same-sex marriage in the nation's capital would be prevented from going ahead.

It was the coalition that included the definition of marriage in the Marriage Act 1961 in 2004, the definition being that marriage is the union of a man and a woman to the exclusion of all others voluntarily entered into for life. That is the definition which the Prime Minister tells us publicly she supports, but then she is too weak in the context of this legislation to stand up for the principle she supposedly supports. If the Labor Party is serious about complying with the promise that was made to its members and senators in order to get this bill through its caucus, then the Labor Party will support this very sensible and very important amendment.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (11:32): To add to Senator Cormann's words, Senator Brown has now been found out. He has been smoked out. He said throughout the course of this debate that this was only about giving territorians equal rights. He now rises to object to an amend­ment, the purpose of which was to say that the same principles that apply to the citizens of states by operation of section 109 of the Constitution should apply to citizens of territories.

If Senator Brown's claims to believe in the equality of citizens were true, he would support this amendment. The fact that he objects to it reveals all. Senator Brown and others in the Labor Party have also said this is not about gay marriage, which is why we have included those words specifically, insisting that the territory may not pass a law inconsistent with the Marriage Act 1961. Senator Brown objects to that, too. Why would you object to that, Senator Brown, if gay marriage were not what this bill is all about?

I move:

(1)   Schedule 1, item 1, page 3 (lines 4 and 5), omit the item, substitute:

1 At the end of subsection 35(2)

Add "if the enactment is inconsistent with a law of the Commonwealth. Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961".

(2)   Schedule 2, omit item 1, substitute:

1 At the end of subsection 9(1)

Add "if the law or the part of the law is inconsistent with a law of the Commonwealth. Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961".

Senator BOB BROWN (Tasmania—Leader of the Australian Greens) (11:34): I am mindful of the time and I move:

That the question be now put.

Question agreed to.

Original question put.

That the amendments (Senator Brandis’s) be agreed to.

The committee divided. [11:39]

(The Chairman—Senator Parry)

Question negatived.

Bill, as amended, agreed to

Bill reported with amendments and an amendment to the title; report adopted.

Senator BOB BROWN ( Tasmania — Leader of the Australian Greens ) ( 11:43 ): I move:

That this bill be now read a third time.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (11:43): The moment cannot be allowed to pass without making the point that when Senator Brown spoke on my amendments he revealed his agenda—the agenda which the government has been warned all along lay behind this bill and which the Labor Party decided to go along with. My amendments gave the Labor Party the opportunity at the last minute to back off and to protect the definition of marriage in the 1961 Marriage Act. By the Labor Party voting with Senator Brown and the Greens to oppose the coalition's amendments, they removed the capacity to protect the definition of marriage in the 1961 Marriage Act applying to the ACT. They have in effect, whether they realise it or not, given their sanction to gay marriage in the ACT.

Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (11:44): The critique from Senator Brandis is wrong. What we have seen this morning is a stunt from Senator Mathias Cormann and Senator Brandis. If the situation was so serious and of such concern, why did they come into the chamber at the 12th hour, almost literally the 12th hour, and circulate an amendment that no-one had seen? I did not even have a chance to have a copy of it in front of me. I did not even have the amendment in front of me in order to examine what its intent was. We had to rely on Senator Brandis's explanation, such as it was. It was nothing more than a stunt. This legislation is about removing executive power. It is not about gay marriage. It is not about euthanasia.

Senator Brandis: That is not what Senator Brown thinks. That is not what Senator Brown thinks, and it is his bill.

Senator SHERRY: It is not about those issues and you well know it. To conclude, having seen the amendment I can say to the chamber we have been advised by the Attorney-General—so we have received advice—that the opposition amendment is unnecessary. It is not necessary. The amendment is unnecessary to maintain the status quo in section 122 of the Constitution.

Senator Brandis: Not according to Professor George Williams, a member of the Labor Party.

Senator SHERRY: You can quote some professor. I am quoting the Attorney-General. That is his advice. Your amendment was unnecessary.

Senator Brandis interjecting—

The DEPUTY PRESIDENT: Order! Senator Brandis, if you are not taking a point of order, Senator Sherry has the call.

Senator SHERRY: Again we have an illustration of what is just a hysterical stunt. The government stands by the advice we have received from the Attorney-General. The amendment was unnecessary.

Senator CORMANN (Western Australia) (11:46): The Labor Party members of this chamber voted against an amendment which would have protected the definition of marriage in the context of this bill, the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010. The Labor Party voted against it. We are led to believe the only reason that the Labor Party ended up deciding to support this bill is assurances they were given that this would not lead to the legalisation of same-sex marriage in the nation's capital. So here we have it. Senator Bob Brown was so keen to shut up the Labor Party on this that he moved that the motion be put before the minister at the table was able to say anything about it. Not only is this the Green tail wagging the Labor dog; they do not even want this dog to bark. When there was a chance that Minister Sherry was about to jump up to express a view on behalf of the Labor Party on this bill, Senator Brown jumped to his feet and said, 'I move the motion be put.' He did not want Minister Sherry to be in a position where he had to formally say on the record, 'What we said to our Labor members and senators in caucus this week was a lie'. This is very simple. I saw our President, Senator Hogg, walk in, being very, very uncomfortable about what he has been forced to do in this chamber. Our President is a very honourable man, and I can tell you now that President Hogg was very, very uncomfortable about being forced by this Green alliance with Labor members and senators to vote against the definition of marriage through this legislation—as was Senator Furner and as was Senator Stephens. Incidentally, Senator Farrell sat here with a big smile. He does not seem to mind that this could well lead to the legalisation of same-sex marriage in the ACT.

I am mindful of the time, so I will not keep going on this except to say that this is a hypocritical Labor Party. They deceived their caucus. If they were truly committed that this legislation should not lead to the legalisation of same-sex marriage in the territory, they would have supported the very sensible amendment that was moved by Senator Brandis on behalf of the coalition. Question put:

That this bill be now read a third time.

The Senate divided. [11:53]

(The PRESIDENT: Senator the Hon. JJ Hogg)

Question agreed to.

Bill read a third time.

Senator SHERRY (Tasmania—Minister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (11:56): I table the supplementary explanatory memorandum relating to the government amendments to be moved to the bill. The memorandum was circulated in the chamber on 17 August 2011.

Senator McEWEN (South Australia—Government Whip in the Senate) (11:56): I present the 10th report for 2011 of the Selection of Bills Committee.

Ordered that the report be adopted.

Senator McEWEN: I seek leave to have the report incorporated in Hansard.

Leave granted.

The report read as follows—

SELECTION OF BILLS COMMITTEE

REPORT NO. 10 OF 2011

1. The committee met in private session on Wednesday, 17 August 2011 at 7.21 pm.

2. The committee resolved to recommend—That—

(a) the Air Navigation and Civil Aviation Amendment (Aircraft Crew) Bill 2011 be referred immediately to the Rural Affairs and Transport Legislation Committee for inquiry and report by 21 November 201; and

(b) the provisions of the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 19 September 2011.

3. The committee resolved to recommend—That the following bills not be referred to committees:

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011

Customs Amendment (Anti-dumping Improvements) Bill 2011

Education Services for Overseas Students (Registration Charges) Amendment Bill 2011

Education Services for Overseas Students Amendment (Registration Charges Consequentials) Bill 2011

Excise Legislation Amendment (Condensate) Bill 2011

Excise Tariff Amendment (Condensate) Bill 2011

Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011

Fairer Private Health Insurance Incentives (Medicare Levy Surcharge) Bill 2011

Fairer Private Health Insurance Incentives (Medicare Levy Surcharge—Fringe Benefits) Bill 2011

Fairer Private Health Insurance Incentives Bill 2011

Horse Disease Response Levy (Consequential Amendments) Bill 2011

Horse Disease Response Levy Bill 2011

Horse Disease Response Levy Collection Bill 2011

Indigenous Affairs Legislation Amendment Bill 2011

Industrial Chemicals (Notification and Assessment) Amendment (Inventory) Bill 2011

Intellectual Property Laws Amendment (Raising the Bar) Bill 2011

Legislative Instruments Amendment (Sunsetting) Bill 2011

Superannuation Legislation Amendment (Early Release of Superannuation) Bill 2011

Tobacco Plain Packaging Bill 2011.

The committee recommends accordingly.

4. The committee deferred consideration of the following bills to its next meeting:

Business Names Registration (Fees) Bill 2011

Business Names Registration (Transitional and Consequential Provisions) Bill 2011

Business Names Registration Bill 2011

Indigenous Affairs Legislation Amendment Bill (No. 2) 2011

Migration Amendment (Declared Countries) Bill (No. 2) 2011

National Residue Survey (Excise) Levy Amendment (Deer) Bill 2011

Responsible Takeaway Alcohol Hours Bill 2010.

(Anne McEwen)

Chair

18 August 2011

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of Bill:

Air Navigation and Civil Aviation Amendment (Aircraft Crew) Bill 2011

Reasons for referral/principal issues for consideration:

In undertaking the inquiry, the Committee should consider:

1. The use of overseas-based crew by Australian airlines and their subsidiaries

2. The pay and working conditions of overseas-based crew operating on Australian airlines and their subsidiaries

3. The possible safety risks of using overseas-based crew, including issues related to fatigue because of flight duty limits

4. The effect of using overseas-based crew on Australian jobs

Possible submissions or evidence from: Qantas

Jetstar

Virgin Australia

Australian Council of Trade Unions

Australian and International Pilots Association Flight Attendants Association of Australia CASA

Fair Work Australia

Committee to which the bill is to be referred:

Senate Standing Committee on Rural Affairs and Transport (Legislation)

Possible hearing date(s):

October 2011

Possible reporting date:

21 November 2011

(signed)

Senator Siewert

Whip / Selection of Bills Committee Member

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011

Reasons for referral/principal issues for consideration:

Examination of the constitutionality of the provisions

Possible submissions or evidence from:

Law Council of Australia

Office of Parliamentary Counsel

Attorney-General's Department

Committee to which bill is to be referred:

Legal and Constitutional Affairs

Possible hearing date(s):

Possible reporting date:

(signed)

Senator Fifield

Selection of Bills Committee Member

Senator MASON (Queensland) (11:59): I move:

That the following matters be referred to the Education, Employment and Workplace Relations References Committee for inquiry and report by 7 May 2013:

   (a)   the adequacy and effectiveness of the current system of university funding, including:

      (i)   base funding,

      (ii)   research grants,

      (iii)   Education Investment Fund,

      (iv)   government payment of FEE-HELP and other student loans,

      (v)   scholarships,

      (vi)   private fees,

      (vii)   grants from state and local governments,

      (viii)   private sources of income,

      (ix)   profit from business ventures,

      (x)   philanthropic giving, and

      (xi)   other sources of income;

   (b)   the adequacy and effectiveness of current funding arrangements, with respect to:

      (i)   the capacity of universities to manage and serve increasing demand,

      (ii)   the adequacy of campus infrastructure and resources,

      (iii)   institutional autonomy and flexibility,

      (iv)   institutional diversity,

      (v)   the quality and diversity of teaching, and

      (vi)   the quality and diversity of research; and

   (c)   alternative policy and funding options for the higher education and public research sectors.

Question put.

The Senate divided. [12.04]

(The PRESIDENT: Senator the Hon. JJ Hogg)

Question negatived.

Senator McEWEN: At the request of Senator Crossin, I move:

That the time for the presentation of the report of the Legal and Constitutional Affairs Legislation Committee on the provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 be extended to 22 August 2011.

Question agreed to.

Senator KROGER: At the request of Senator Heffernan, I move:

That the Rural Affairs and Transport References Committee report on its inquiry into the Live Animal Export (Slaughter) Prohibition Bill 2011 [No. 2] and the Live Animal Export Restriction and Prohibition Bill 2011 [No. 2], by 21 September 2011.

Question agreed to.

Senator BILYK (Tasmania) (12:34): I present the report of the Joint Select Committee on Cyber-Safety on the Cyber­crime Legislation Amendment Bill 2011 and move:

That the Senate take note of the report.

Today I table the report of the Joint Select Committee on Cyber-Safety on the provi­sions of the Cybercrime Legislation Amend­ment Bill 2011. All members of the committee were in agreement, including the Greens, who have complimented the quality of the report. There are some additional comments by the Greens, who would obviously have liked us to go further, but I will leave those matters to Senator Ludlam.

The bill deals with the subject of cybercrime, a subject that has increasingly occupied the attention of all Australian governments and this parliament. The globalisation of communication technology has brought many benefits but it has also enabled transnational crime to flourish. Hacking, the spread of malware, denial of service attacks on private corporations and the institutions of government is the modern face of cybercrime. Large-scale online fraud can net organised crime vast profits. We are no longer dealing the nuisance hacker who gets his kicks from showing off his hacking prowess.

The bill amends the Telecommunications (Intercep­tion and Access) Act, and the Mutual Assistance in Criminal Matters Act, to enable Australia to accede to the Council of Europe Convention on Cybercrime. The convention and the bill are intended to enable law enforcement agencies to keep up with criminal networks that attack computers and computer systems or use the internet to facilitate their criminal enterprise. Before speaking about the report, I would like to outline what the bill does and correct some of the misinformation that is circulating.

What the bill does

There are four main aspects to the bill. First, it introduces a new mechanism for the preservation of communications to prevent the destruction of potential evidence until a warrant for access is obtained. This new preservation mechanism will be available to law enforcement agencies and to ASIO.

Second, the bill also allows the AFP to apply on behalf of a foreign country for a stored com­munications warrant. So, while the AFP must issue a preservation notice at the request of a foreign country, there is no access to this material without a warrant. The AFP can only apply for the warrant once the Attorney-General has agreed to a formal request for mutual assistance from the foreign country.

Thirdly, the bill allows the AFP to share telecommunications data—that is, non-content data—with a foreign country without the need for a formal mutual assistance request. This may occur only where that data has already been obtained for a domestic investigation. This is intended to speed up international cooperation.

Fourthly, the Ombudsman will have oversight of the preservation regime and stored communications warrants obtained for a foreign country. The Inspector General of Security and Intelligence will have oversight of ASIO's use of the preservation regime for intelligence purposes.

What the b ill does not do

It is important to be clear that neither the convention nor the bill seeks to implement a general data retention scheme. It does not, as has been claimed by Crikey this week, 'open the door to mass surveillance of internet usage'. No country can demand the transfer of any data—the content of communication or the 'traffic data'. It simply is not true, as Crikey has claimed, that a country like China will be able to obtain volumes of communi­cations data about dissidents in Australia.

The powers available under the bill, and indeed the powers that already exist under the Telecommunications (Interception and Access) Act, can only be activated where there are legitimate law enforcement require­ments or, in the case of ASIO, legitimate security purposes. Access to the content of communications is provided under warrant and only after a mutual assistance request has been agreed to by the Attorney-General.

The bill makes no change to the range of countries to which police can provide police-to-police assistance. The bill does not allow ASIO to share communications with foreign counterparts.

The committee received 23 submissions and heard from several witness on Monday, 1 August. We also carried out an inspection of the Australian Federal Police high-tech crime operations facilities in Barton. We were conscious of the sensitivity that goes with any expansion of covert police powers, especially powers that involve access to private communications. We are mindful of the importance of subjecting these powers to proper standards and safeguards.

It is with this in mind that we have proposed a range of realistic, modest and practical changes. If adopted, we believe these changes will go a long way toward allaying any fears of unwarranted intrusions into privacy or unjustified sharing of data with foreign countries.

The time for presentation of this report is short. I will forgo a detailed explanation of each recom­mendation. The general approach of the committee was to ensure that thresh­olds that apply to domestic investigation are equally applied to foreign countries seeking access to communications material.

We have proposed that the AFP guidelines on police-to-police cooperation in possible death penalty scenarios be tightened and should only occur in exceptional circum­stances and with the consent of the relevant ministers. This means that telecommuni­cation data cannot be shared even at an early investigative stage in such matters without the minister's consent.

We also proposed that the general privacy safeguard in proposed clause 180F be elaborated in more detail to provide greater guidance to the AFP. That guidance is already in the explanatory memorandum, but putting it in the statute will provide better visibility to the police and the public.

Finally, the committee proposed that the government consider in more detail what privacy obligations might apply to carriers and carriage service providers. Of course, the Privacy Act already applies. But better visibility and clarity can be achieved if there are clear obligations to destroy material held by a carrier.

Law enforcement agencies already have an obligation to destroy this material when it is no longer relevant to an investigation. The recommendation is that this obligation be replicated for the industry, unless there are other legitimate business purposes for keep­ing the information such as billing.

The intention of the committee is to improve public confidence in the scheme and we are sure that public confidence is equally important to the industry.

In conclusion, I wish to thank the committee members and the secretariat for their work in this inquiry. I commend the report to the Senate.

Senator LUDLAM (Western Australia) (12:40): I am very pleased to follow the remarks of Senator Bilyk, the chair of the Joint Select Committee on Cyber-Safety. I will be fairly brief. First of all, I would like to thank the chair, the deputy chair and the rest of the committee for putting together what I think is a very important and very focused report in a very, very short time frame. As usual when bills such as these come through from the Attorney-General's Department, they are always in an inordinate hurry and they are always on fire for the parliament to urgently to dispose of the bills. I thank the efforts of the chair, the deputy chair and the secretariat for getting a coher­ent report into this bill.

I think the chair, Senator Bilyk, has perhaps undersold the efforts of the commit­tee to the extent that the committee majority report made some very strong recommend­ations for changes to the Cybercrime Legislation Amendment Bill 2011. I hope that the Attorney-General does not simply give the report of the cyber-safety committee a once-over and present the bill unamended to the chamber next week. I strongly advise the government against pursuing that course of action and advise it to read the report and to read the unanimous recommendations that the committee put forward because they actually recommend major surgery to this bill both in terms of amendments and in terms of clarifications.

The Senate is used to dealing with instan­ces of expansions of surveillance powers and expansions of law enforcement agencies in Australia. In my experience, it seems we get amendments to the Telecom­munications (Interception and Access) Act every couple of weeks. This is something a little different because this bill does not just relate to Australian security and law enforce­ment agencies; this bill relates to how data is shared with overseas law enforcement agencies, principally of course because the convention relates to Europe. But obviously if Australia is signing on, other countries around the world are signing on as well. This will allow data to be stored not just about serious crimes but about any offence at all.

If a foreign law enforcement agency wishes to prosecute or pursue an investi­gation, it will now be able to access data stored on Australian servers or in the hands of Australian service providers and that will be able to be used for law enforcement purposes overseas.

Senators may remember the polarised debate on the net filter that occurred over the last couple of years. Everybody who partici­pated in that debate advocated better coord­ination between Australian law enforcement agencies and international agencies, for the obvious reasons—for example, if you are chasing child pornography offences on servers in Eastern Europe or in South-East Asia, or places where it is very difficult for the AFP to execute warrants and so on, you need tighter cooperation to prosecute those offences. I think everybody was unanimous on that.

The underlying intent of the bill to enable that kind of collaboration in a globally networked media is entirely sound. The problem, as often happens with bills from the Attorney-General's Department, is that there is a colossal overreach; there are all sorts of agendas being advanced behind the cover of the ostensibly sensible objectives of allowing law enforcement agencies to collaborate and to cooperate better. This does not just pertain to acts of terrorism, child pornography or child abuse material being stored on overseas servers, or indeed on Australian servers; this relates to everything—any offence and any form of data that is being stored. Keep in mind of course that there are various kinds of data now that did not even exist 10 years ago. Now, as our lives move online, we leave digital footprints everywhere we go, as do other citizens in highly industrialised count­ries. All this material is now up for grabs. For example, the Attorney-General's Depart­ment floated a bit of a thought bubble, and perhaps the public got onto it a bit sooner than they were intending, about data reten­tion. This is about forcing internet service providers to hold not only material from people suspected of major crimes but also all digital material: records of emails; phone calls; GPS records of your tele­phone—in other words, everywhere you have been; anybody you have communicated with; ever­ything you have done online and every eBay purchase. Why don't we retain all of that in case one of us turns out to be a criminal? That agenda was very strongly rebuffed and we did not hear a great deal about it, but then here it comes again, sneaking in under the cover of an otherwise sensible bill about signing onto this European convention.

Do not forget that these police powers in many European countries occur against the backdrop of very strong human rights protections that do not exist in Australia. The Australian Constitution is silent on human rights. Things like free speech, the protection of privacy and so on are implied rights. In Europe and in North America that is not so; those rights are very firmly stated. In Australia we do not have that safety net.

Having to fast-track this bill, the commit­tee was forced onto a very tight timetable and it forced witnesses, who are largely vol­unteer organisations, to pull together submis­sions at very short notice. To the committee's credit, many of those concerns have been picked up. In this instance, I have chosen to draft and submit additional comments. It is not a dissenting report, but material in addition to the work of the committee. For example, regarding recom­mendation six that deals with the death penalty, we had a very interesting discussion in the committee over a couple of days. How do we feel about the potential for Australian law enforcement agencies sharing informat­ion to aid an over­seas law enforcement agen­cy that would then lead to a prosecution and then an execution? I think there is unanimous opposition in this chamber to the death penalty here in Australia, but if you look at the international instruments that we have signed up to they are also about not enabling judicial murder to occur in other jurisdictions either. We have left the door open for that. Read recommend­ation six—we have enabled that. We have allowed the door to remain open for that information to be transferred and then for people to be executed by their states. I think that is completely unacceptable.

The Ombudsman asked that his powers to inspect and audit compliance with the preservation and data retention regime be clarified to ensure that he can check compli­ance with the act and not mere record keep­ing. That is another very important point. Try to imagine the grey areas that we stumble into when a foreign law enforcement agency comes after a warrant or data retention order for something that is not even a crime in Australia or something of which there is no easy equivalent. Some of the language in the bill regarding those ambiguities is gobbledy­gook and will be extraordinarily difficult to interpret.

'Traffic data' is not the words that you spoke on the phone or the content of your email but the metadata about who it was sent to, when it was sent, where you might have been at the time that it was sent and so on. Traffic data is quite well defined in the European convention but it is not defined in this bill. It does not use the same termin­ology as the convention and there are going to be really serious mismatches in the inter­pretation of that. A number of witnesses brought that up. It means that we can accede to the convention, but I think we are going to stumble into a swamp of interpretation when citizens or law enforcement officials wish to know what their obligations are under the law. The Privacy Foundation argued along similar lines. Keep in mind that the actual status of the traffic data or metadata that surrounds communications is not about serious and organised crime, terrorism, child prostitution or anything like that; this is about all of the records of all of the moves that we make, and their imprints in cyber­space, now being accessible to foreign law enforcement agencies.

There are very serious grey areas in this bill. My real plea is that the government read not only the minority report put up by the Greens, which talks about the overreach and goes into some of the specifics that we think should be improved in the bill, but also the majority report that was signed off by all members of the committee this morning. Do not simply serve up the bill unamended just because you imagine that you are always right and that the bill is perfect. This one needs a second thought. Some of these things are probably a bit unusual at the moment—there is not a great deal of this sort of activity occurring—but as we move into the online age, as we move our lives online and as the National Broadband Network rolls out, these things will become routine and we need to get the settings right at the outset. I thank the chamber and I thank the chair, and I look forward to a debate on an amended bill. I seek leave to continue my remarks later.

Leave granted; debate adjourned.

Senator JACINTA COLLINS: 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.

Senator JACINTA COLLINS (Victoria—Parliamentary Secretary for School Education and Workplace Relations) (12:52): I present a revised explanatory memorandum relating to the Competition and Consumer Amendment Bill (No. 1) 2011 and 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 speeches read as follows—

AUSTRALIAN ENERGY MARKET AMENDMENT (NATIONAL ENERGY RETAIL LAW) BILL 2011

Under the oversight of the Council of Australian Governments, Australia has made significant progress over the last decade towards an efficient and effective national energy market, in particular in the development of uniform national energy laws for electricity and gas.

This Bill I am introducing today is part of the current Council of Australian Governments’ reform program under which non-economic regulation of the distribution and retail of gas and electricity will also be subject to the national energy institutions and regulatory arrangements.

The Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 sees the Commonwealth take an important role in implementing the cooperative legislative regime for regulating retailers and distributors who sell and supply electricity and gas to retail customers. It is the final major component of the national energy market reform program agreed by the Council of Australian Governments in response to their 2002 Energy Market Review, ‘Towards a Truly National and Efficient Energy Market’ and set out in the Australian Energy Market Agreement.

The South Australian Parliament passed the National Energy Retail Law (South Australia) Bill 2010 (SA) on 9 March 2011. That Bill received Royal Assent on 17 March 2011. The National Energy Retail Law (South Australia) Act 2011 (SA) includes as its Schedule the National Energy Retail Law, which provides for rules and regulations to be made under that Law, called the National Energy Retail Rules and the National Energy Retail Regulations.

The National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA), and the Rules and Regulations to be made under it, are supported by amendments to the National Electricity Law and the National Gas Law included in the Statutes Amendment (National Energy Retail Law) Act 2011 (SA).

The South Australian Minister will also make rules which amend the National Electricity Rules and the National Gas Rules on two related matters. The first set of amendments are national rules which enable retail customers and property developers to seek new (or significant modifi­cations to existing) connections to electricity and gas distribution networks. The second set of amendments are new rules to set out the rights and obligations between distributors and retailers which are necessary to support the retail supply of energy to customers and include a credit support regime.

Together the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA), the Rules and Regulations made under it and the consequential amendments to the national electricity and national gas regimes are known as the National Energy Customer Framework (the Customer Framework).

The Customer Framework will be applied in all jurisdictions which are part of the National Electricity Market, namely South Australia, Victoria, New South Wales, the Australian Capital Territory, Tasmania and Queensland as well as the Commonwealth, by application Acts. The Ministerial Council on Energy has agreed that jurisdictions will aim for a target uniform commencement date for the Customer Frame­work of 1 July 2012, noting that transitional legislative arrangements will be required to appropriately manage the transition process.

This Bill will amend the Australian Energy Market Act 2004 (Cth) to apply the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA), and the Rules and Regulations made under it, as a law of the Commonwealth in Australia's offshore area (essentially, the area from three nautical miles offshore to the edge of the continental shelf). This Bill will therefore make the Australian Energy Market Act 2004 (Cth) the Commonwealth's 'application Act' for the new national energy retail regime.

The National Energy Retail Law will be under the jurisdiction of the Australian Energy Regulator as regulator and enforcement body and the Australian Energy Market Commission as rule maker. Its primary aims are to streamline regula­tory requirements, increase efficiency through regulatory harmonisation and maintain best practice consumer protection. As a result, the National Energy Retail Law is expected to facilitate an increase in retail competition by reducing regulatory complexity and lowering barriers to entry, as well as by encouraging consumers to participate in this competitive market by providing strong and equitable consu­mer protections across participating jurisdictions. Other key benefits of the National Energy Retail Law include an increase in efficiency and competition obtained through having national regulatory arrangements, a comprehensive suite of robust energy-specific consumer protections, and the establishment of a national Retailer of Last Resort framework.

The National Energy Retail Law incorporates an objective which mirrors the objectives in the National Electricity Law and the National Gas Law. The national energy retail objective is "to promote efficient investment in, and efficient operation and use of, energy services for the long term interests of consumers of energy with respect to price, quality, safety, reliability and security of supply of energy." The alignment between the objectives of the laws governing the various sectors of the energy markets is an important foundation for the regime.

Currently each jurisdictional regime has a different regulator that makes decisions and determinations for that jurisdiction. Under the new National Energy Retail Law, the regulation of all energy retail businesses will be undertaken by a single national regulator, the Australian Energy Regulator - a Commonwealth body. This Bill provides for the extension of the Australian Energy Regulator’s powers to regulate the retail energy market. The National Energy Retail Law therefore brings the whole energy supply chain – wholesale markets, transmission networks, distribution networks and now retail markets – under national regulation with the Australian Energy Regulator overseeing a robust compliance and enforcement regime across all participating jurisdictions. This crucial reform will lead to a more efficient and consistent regulatory decision-making process.

Under the National Energy Retail Law, the Australian Energy Regulator will exercise a range of regulatory functions and powers. These functions include administering a targeted compliance monitoring and enforcement regime. The enforcement regime in the National Energy Retail Law reflects and enhances the current enforcement regimes in the National Electricity Law and the National Gas Law to create a harmonised enforcement regime across the national legislative frameworks.

The National Energy Retail Law will give the Australian Energy Regulator a range of new functions and powers, suitable for the regulation of the energy retail regime. These include the power to accept enforceable undertakings from energy market participants for the first time. The national regulator will also have certain new approval functions and undertake performance monitoring and reporting functions specifically targeted to the retail energy market.

The proposed amendments to Commonwealth legislation provided for in this Bill will ensure that the Commonwealth bodies that are conferred with functions, powers and duties under the National Energy Retail Law (the Australian Energy Regulator and the Australian Competition Tribunal) are able to perform those functions and duties and exercise those powers from the commencement date. Our role in this Parliament is to facilitate this.

To this end, this Bill amends the Competition and Consumer Act 2010 (Cth) to explicitly allow the National Energy Retail Law, when applied as a law of a State or Territory, to confer functions and powers, and impose duties on these two Commonwealth bodies. This includes, in relation to the Australian Energy Regulator, functions, powers or duties conferred or imposed under 'local energy instruments'. These are subordinate instruments made under a State or Territory law that applies the National Energy Retail Law, the National Electricity Law or the National Gas Law in its own jurisdiction.

The Bill will also provide that decisions and instruments made by the Australian Energy Regulator for the purposes of the National Energy Retail Law before it commences, such as guidelines made in accordance with the retail consultation procedure set out in the National Energy Retail Rules, will be valid and effective from the commencement of the National Energy Retail Law in this jurisdiction. The amendment Acts of other jurisdictions will contain similar provisions. It is important to provide the Australian Energy Regulator with this legislative support, so that it can undertake essential activities necessary for the commencement of the new regulatory regime.

The involvement of the Australian Energy Regulator and the Australian Competition Tribunal is therefore an essential part of this cooperative scheme, and the Commonwealth must take the lead by legislating to provide for these functions and powers to be exercised. The South Australian parliament, and indeed parlia­ments in all participating jurisdictions, must see that the Commonwealth is committed to this cooperative scheme.

The amendments to the Administrative Decisions (Judicial Review) Act 1977 (Cth) contained in this Bill will ensure that decisions made by Commonwealth bodies, such as the Australian Energy Regulator and the Australian Competition Tribunal, under the National Energy Retail Law, when applied as State or Territory law are subject to judicial review by the Federal Court and Federal Magistrates Court.

In summary, the amendments I am introducing today represent a significant legislative step towards a truly national energy retail regime under a national energy regulator. This cooperative scheme will ensure that Australia enjoys strong energy customer protections and the benefits of competitive and efficient energy retail markets – both electricity and gas – whilst minimising the regulatory burden on industry. This Bill has the full support of my State and Territory colleagues on the Ministerial Council on Energy.

COMPETITION AND CONSUMER AMENDMENT BILL (NO. 1) 2011

The Gillard Government has been working since day one to build up competition in the banking system and get a better deal for consumers.

In December, the Government announced a comprehensive package of new reforms to empower families, support smaller lenders and secure the flow of credit to our economy.

These build on the decisive actions we took during the global financial crisis to preserve the competitive foundations of the banking system.

Our bank guarantees supported deposit funding for smaller lenders and enabled non-major banks to raise some $65 billion in wholesale funding.

Our $20 billion investment in Triple-A rated RMBS (Residential Mortgage-Backed Securities) continues to support this critical funding market which many smaller lenders rely heavily on.

All of this means loans are there when families need to buy a home, and credit is available when a small business wants to grow.

Competition means getting these loans at a fair price – that’s our objective.

Today I introduce amendments to the Competition and Consumer Act 2010 to crack down on anti-competitive price signalling and get a better deal for consumers in the banking system.

These laws will be initially targeted at the banking sector, because the ACCC has told us there is strong evidence of banks signalling their pricing intentions to each other in a bid to undermine competition.

We’ve been very clear all along that we would only extend these laws to other sectors of the economy after further detailed consideration, with a process to be followed, outlined in the regulations.

The ACCC advised me last year that it was concerned about the behaviour of ‘some of the banks in signalling in advance what their response will be to a change in interest rates by the Reserve Bank’.

In the Senate Economics References Committee’s banking competition inquiry, which reported in May 2011, the ACCC gave testimony that:

‘The problem with that sort of comment – the evil of it, if you like – is that it says to the competitors, “If you increase your interest rates I will follow”, which means you are signalling to the competitor that if they increase their interest rates they would not need to worry about being stuck out there on their own and losing market share’.

This type of anti-competitive price signalling can be just as harmful to Australian consumers as an explicit price fixing cartel.

However, there’s a gap in our competition law which has allowed the banks to escape the full force and discipline of competition.

The ACCC provided strong advice that banks were giving each other a ‘nod and a wink’ that they would raise their rates together.

However, because they weren’t actually writing it all down and signing in blood, or even agreeing verbally how they’d act – they’d get away with it.

This kind of conduct by the big end of town should never be allowed to continue when designed to dud Australian families.

That’s why we’re closing this gap in our competition law which is already dealt with in other major jurisdictions like the US, the UK and the EU.

That’s why we’re building on our 2009 reforms to strengthen Australia’s cartel laws, by banning signalling designed to keep interest rates higher.

Our tough new laws will give the ACCC the power to take action against banks who signal their prices to competitors to undermine competition.

Policy development process

The Government has been carefully developing competition policy in this area for some time, and monitoring global comparisons.

The OECD’s Roundtables on Facilitating Practices and Information Exchanges, in 2007 and 2010, have clearly highlighted the harm to consumers that can arise from anti-competitive price signalling.

Many stakeholders in Australia strongly agree that anti-competitive price signalling is not prevented by our existing competition law.

They’ve told us that this conduct is best targeted by providing new, specific prohibitions which prevent price signalling occurring.

This is precisely the approach we have taken to provide certainty to the business community whilst ensuring robust protection for consumers.

Amendments to Competition and Consumer Act 2010

This Bill is fundamentally about stamping out conspiratorial behaviour by the big banks which isn’t caught by our competition laws.

These tough new laws have two limbs.

First, the Bill gives the ACCC the power to take action against any bank which signals its pricing intentions to a competitor for the purpose of substantially lessening competition.

We’re cracking down on banks who purposefully signal to their competitors that they should all raise their mortgage rates together.

It’s inherently damaging to consumers for any bank to essentially say to its competitors “don’t worry – if you raise your mortgage rates then I won’t undercut you and take your customers”.

It allows banks to move their interest rates higher without the full discipline of competition – and at the expense of the consumer.

This anti-competitive behaviour is an unambiguously bad result for Australian families and small businesses.

The Bill allows a court to infer the real purpose a bank has in making such a statement — so there is no need for a 'smoking gun'.

Of course, we are not talking here about ordinary commercial communications.

Every Australian bank will be able to communicate with its customers, shareholders, market analysts, employees and other stakeholders in the ordinary course of business – just like they have always been able to.

What we are doing here is cracking down on the insidious practice of signalling between banks which is designed to undermine competition and which inevitably hurts consumers.

The second limb of the law will prevent banks from discussing their prices with each other behind closed doors, where doing so is not in the ordinary course of business.

I note that ‘ordinary course of business’ is a wide term, found elsewhere in the Competition and Consumer Act 2010 and in other laws. For the information of Parliament, it is not necessary that the person or company has engaged in the relevant conduct in the past, or for the conduct to have been regularly or routinely undertaken by that business, or other participants in the industry.

This prohibition is targeted at those disclosures which are the most clearly anti-competitive and which are most damaging to consumers.

For example, the ACCC could take action if one bank phones another bank privately to tell them about a planned mortgage interest rate rise.

Of course, the Bill recognises there will be situations where banks need to discuss pricing with their competitors in a private context.

Exceptions and defences

We recognise that businesses need certainty and appropriate guidance so that they can conduct legitimate activities on commercial timeframes – and keep providing services to customers.

That’s why we have worked closely with the ACCC since mid-2010 to carefully design these amendments, and have consulted extensively on draft legislation with the industry, legal experts and other stakeholders.

The Bill introduced in the House in March had a number of specific exceptions, for example in relation to, continuous disclosure obligations, joint ventures, and disclosures to acquirers or suppliers of goods or services.

In the House, the Government moved amendments so that further exceptions are provided that give clear guidance to business about what conduct is, and is not, subject to the prohibitions.

More specifically, an additional exception will provide banks with certainty that certain disclosures made in the context of corporate workout arrangements will not be subject to the private disclosure of pricing information prohibition.

The Government recognises that it is important that banks assist financially distressed businesses in avoiding insolvency. A new, explicit exception will be provided for banks that make certain private disclosures of price related information to a competitor if the purpose of the disclosure is for considering whether or not to take measures to return a borrower to solvency, or to avoid or reduce the risk of the borrower becoming insolvent.

Also, an exception from the outright prohibition has been provided for in relation to syndicated lending arrangements, which may not otherwise have been exempt from this prohibition through the application of the joint venture exception. This exception provides lenders surety that they can continue to engage in discussions for the purposes of syndicated loan arrangements.

In addition, the Government has provided an exception for distribution arrangements related to consumer credit arrangements. To provide businesses with certainty, this exception draws upon existing, defined terms in the National Consumer Credit Protection Act 2009.

This means that banks will be able to go ahead and get on with the business of lending provided they aren’t being anti-competitive.

The Bill contains arrangements for banks to seek immunity where their conduct provides a net public benefit to the community.

This allows legitimate conduct to occur where it’s not covered by one of the other explicit exemptions - some of which I’ve just mentioned.

Following consultation with the business community, the Bill now includes a ‘notification’ regime to meet shorter commercial timeframes.

Where a bank can demonstrate a net public benefit, they can obtain immunity by describing the conduct to the ACCC in a notice.

The ACCC then has a limited period of 14 days to respond if it has any concerns about the proposed behaviour.

This is significantly faster and more cost effective than the ‘authorisation’ process that we had originally discussed with the business community.

Conclusion

The Bill I introduce today strikes an appro­priate balance between allowing legitimate or pro-competitive conduct, and cracking down on anti-competitive price signalling which harms consumers.

This important reform will help to ensure that banks can no longer avoid the full forces of competition in the marketplace.

The Gillard Government is absolutely committed to getting a better deal for Australian families and small businesses in the banking system.

The laws I introduce today are an important part of that.

COMPETITION AND CONSUMER LEGISLATION AMENDMENT BILL 2011

Introduction

The Competition and Consumer Legislation Amendment Bill 2011 will give effect to two important reforms to strengthen and clarify our competition and consumer laws.

First, the Bill will enact laws to deal with creeping acquisitions by amending section 50 of the Competition and Consumer Act 2010 (CCA).

The amendments will give greater clarity to the provisions regulating mergers and acquisi­tions. They will ensure the Australian Compe­tition and Consumer Commission (ACCC) and the courts have the power to reject mergers and acquisitions that would substantially lessen competition in any local, regional or national market.

The Bill also enhances and simplifies the unconscionable conduct provisions of the Austra­lian Consumer Law and the Australian Securities and Investments Commission Act 2001.

The unconscionable conduct amendments are central to the implementation of uniform consumer laws throughout Australia. They were agreed by the Ministerial Council on Consumer Affairs (now the COAG Legislative and Governance Forum on Consumer Affairs) at its meeting in Perth on 30 April 2010.

These amendments clarify the Parliament’s intention as to how the unconscionable conduct law should apply. They will place the ACCC and the Australian Securities and Investments Commission (ASIC) in a better position to take more effective enforcement action.

I would like to recognise the valuable work of my predecessor, the former Minister for Competi­tion and Consumer Affairs, the Hon Dr Craig Emerson MP, in developing this Bill prior to its previous introduction.

The Government previously introduced this Bill into the Parliament on 27 May 2010. The Bill was referred to the Senate Economics Committee, which recommended that the Bill be passed.

The Bill passed the House of Representatives on 24 June 2010 and was awaiting introduction into the Senate when the 2010 Election was called, causing the Bill to lapse.

Creeping Acquisitions

Creeping acquisitions are a series of small-scale acquisitions that, individually, do not substantially lessen competition in a market, but collectively may do so over time.

Concerns about creeping acquisitions were raised in the context of the ACCC’s report of the inquiry into the competitiveness of retail prices for standard groceries. In its report, while noting that such acquisitions do not appear to be a significant current concern in the supermarket retail sector, the ACCC expressed its support for the introduction of a general creeping acquisitions law.

Subsequently the Government undertook extensive public consultations in 2008 and 2009 to seek the community’s views on possible reform options. Through its consultations, the government identified two amendments which would clarify the operation of section 50 as applying in the way it is currently interpreted by the ACCC, as set out in its November 2008 publication, Merger Guidelines.

The first amendment in the Bill will amend subsections 50(1) and (2) of the Competition and Consumer Act to replace references to ‘a market’ with references to ‘any market’. This amendment will clarify the ability of the ACCC or a court to consider multiple markets when assessing mergers and acquisitions.

The amendment will clarify that businesses cannot challenge a decision to block a proposed acquisition on the grounds that the substantial lessening of competition identified was in one or more markets other than the primary market relevant to the merger or acquisition.

The ACCC and the courts will be able to consider the totality of the competitive effects resulting from an acquisition, including impacts in upstream and downstream markets, not just impacts in ‘a market’.

The Bill also amends subsection 50(6) of the Competition and Consumer Act. That subsection has the effect of limiting the scope of section 50 to acquisitions in markets that are ‘substantial’ in a state or territory or region of Australia.

The amendment to this subsection will provide greater certainty regarding the current practice of the ACCC of considering acquisitions in local markets. The Merger Guidelines state that the ‘substantiality criterion’ can be satisfied in many ways, including by the number of customers, total sales or the geographical size of the market.

The Merger Guidelines do not have the force of law. While the interpretation of the ACCC of subsection 50(6) has not been tested by the courts, it was considered by Justice French in his 2003 decision in the Federal Court in the case of Australian Gas Lighting Company v ACCC.

While expressing no conclusive view, his Honour left open the possibility that whether a market is considered ‘substantial’ under subsect­ion 50(6) may be determined with reference to Australia as a whole. If this view were to become established in law through the accumulated weight of legal precedent over time, then it could well preclude acquisitions in geographically confined markets from being considered under section 50. This would prevent the application of section 50 to local markets where creeping acquisitions have been identified as a concern.

The Bill deletes the word ‘substantial’ from subsection 50(6). This removes the risk highlighted by Justice French that a court could in the future adopt the view that acquisitions in geographically confined markets may not be considered substantial and therefore not fall within the scope of section 50.

The government’s amendment to section 50 will remove that possibility, allowing the ACCC or a court to continue to examine acquisitions in all markets, including in relatively small, local markets.

Together, these amendments will strengthen the acquisitions provisions of the Competition and Consumer Act under section 50 by clarifying the scope of the law and increasing certainty around its application to markets where creeping acquisitions have been a concern.

In addition to these amendments, when announcing the way it would respond to concerns about creeping acquisitions, the government also confirmed the power of the ACCC to act in relation to the acquisition of greenfield sites.

The ACCC already considers it has the power to review acquisitions of greenfield sites whether through purchase or lease. However, if the ACCC is challenged on this in the future, the government has stated it will not hesitate to confirm this power.

These amendments were agreed with the States and Territories under the intergovern­mental Conduct Code Agreement 1995.

Unconscionable conduct

The amendments the Bill will make to the unconscionable conduct provisions of the Australian Consumer Law are the product of a recommendation of the Senate Economics Legislation Committee, which inquired into the statutory definition of unconscionable conduct in 2009.

The Senate Economics Committee recommended that the government set up an inquiry process to determine whether examples or a statement of principles would enhance the unconscionable conduct provisions of the Australian Consumer Law.

On 5 November 2009, Minister Emerson convened an expert panel to consider the issues raised in the Senate Economics Committee inquiry. Professor Bryan Horrigan, Mr Ray Steinwall and Mr David Lieberman—all of them experts in competition and consumer law and distinguished in their professional fields—agreed to serve on the panel.

The government is grateful for the work of the panel—which included many hours on top of their already busy schedules. In its work, the panel was assisted by officials from the Treasury and the Department of Innovation, Industry, Science and Research.

The government is also grateful to those who made submissions to both the Senate committee and to the expert panel. This helped to ensure the range of perspectives that exist in relation to this issue were understood.

The expert panel found that the unconscion­able conduct provisions have been regularly enforced since their inception, and that the case law is still developing.

Having said that, the panel also noted that the provisions are not easily understood and could be clearer for businesses, consumers, enforcement agencies and the courts. However, the panel found that a list of examples of unconscionable conduct would not be helpful. Indeed, the panel said such a list might give rise to misguided expectations about the scope and application of the law to specific factual scenarios.

Instead, it recommended the inclusion of some interpretative principles in the unconscionable conduct provisions. The government has adopted all of the panel’s recommendations concerning unconscionable conduct, including the intro­duction of interpretative principles.

The first principle will deal with concerns that the practical application of the equitable concept of unconscionable conduct is too narrow when applied to business and consumer relationships. Courts have tended to stick closely to the traditional equitable concept when applying the statutory prohibitions that were sections 51AB and 51AC of the former Trade Practices Act (now sections 21 and 22 of the Australian Consumer Law) and sections 12CB and 12CC of the ASIC Act.

For example, the common law required victims of unconscionable conduct to establish that they were at a ‘special disadvantage’ through factors like infirmity, age or a difficulty understanding English, before a court would recognise that unconscionable conduct had occurred. The present statutory prohibitions on unconscionable conduct sought to remove limitations such as these on the ability of people to seek redress when subjected to unconscionable conduct.

The Bill amends the law to make it clear that the prohibition is not limited to the equitable or common law doctrines of unconscionable conduct. The courts should not limit the appli­cation of the provisions by reference to ancient common-law doctrines that are not part of the statute.

The second interpretative principle will clarify that courts can examine the terms and the manner and extent to which the contract is carried out. This principle makes it clear that unconscionable conduct is not limited to the bargaining practices leading to the formation of a contract.

Unconscionable conduct can also be apparent in the way in which a party exercises its rights under a contract or in the way in which a party behaves once a contract is made. It can also apply to the way in which contracts are renewed, renegotiated or terminated.

This interpretative principle will ensure that any unconscionable conduct—not just that occurring before contracts are made—is subject to the full force of the law.

The final interpretative principle to be intro­duced by the Bill is that the prohibition on unconscionable conduct applies to systemic conduct or patterns of behaviour and that there is no need to identify a person at a disadvantage in order to attract the prohibition.

Unconscionable conduct is not limited to individual transactions or events. A pattern of systematic conduct or patterns of behaviour occurring over a period of time—which might include an accumulation of minor incidents—can also amount to unconscionable conduct.

This interpretative principle ensures that conduct, rather than individual transactions or events, is the focus of the provisions.

Further, as the focus is on the conduct rather than the victim, this principle reinforces the point being made in the first interpretative principle that there is no need to identify a person who is at a disadvantage in order to enforce the prohibition.

Other amendments

The Bill will also remove the distinction in the existing provisions between unconscionable conduct that affects businesses and that which affects consumers.

It combines the existing sections 21 and 22 of the Australian Consumer Law and sections 12CB and 12CC of the ASIC Act, respectively, into one section and rationalises their drafting to apply a single set of specific factors which the court may consider.

This amendment will eliminate the potential that the concept of unconscionable conduct in the two existing provisions could diverge, through a false assumption that the existence of two provisions signals a distinction in policy. Any divergence has the potential to lead to confusion, and the distinction should be removed before any such notion develops.

The amendments will also ensure that a single, cogent body of legal precedent can develop around the statutory concept of unconscionable conduct as it applies to both consumers and businesses.

The application of the Australian Consumer Law as a law of the Commonwealth and of the states and the territories has many advantages, one of which is that it can be enforced by courts at all levels in a consistent fashion.

In some states and territories the courts, including lower courts and tribunals, will be applying the prohibition on unconscionable conduct for the first time. Providing clarity in the interpretation of these provisions will do much to ensure the consistent application of our new, national consumer law across Australia.

I can also inform the chamber that the Ministerial Council for Corporations was consulted in relation to the amendments to the laws in the national corporate regulation scheme, namely the amendments to the ASIC Act, and they have been approved as required under the Corporations Agreement.

I should also note that the Bill corrects a small number of drafting errors in the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.

Conclusion

Together the amendments contained in this Bill will bring greater clarity and certainty to the application of key provisions of our competition and consumer laws.

The amendments to section 50 will ensure that the ACCC and the courts can assess the totality of the competitive effects associated with acquisi­tions which occur in geographically confined, local markets.

The amendments to the unconscionable conduct provisions will ensure there is a much clearer understanding of the conduct that these provisions have always been intended to address. The amendments will protect Australian small businesses, but without creating market distortions which would only reduce their competitiveness and their resilience.

The amendments will protect consumers by ensuring that competition is protected and fostered. They will strengthen the prohibition against conduct that is designed to stifle competition through the imperceptible development of market dominance or through unconscionable business conduct.

SOCIAL SECURITY AND OTHER LEGISLATION AMENDMENT BILL 2011

This Bill contains a range of measures relating to income support and veterans' affairs payments, and disability advocacy services, including two Budget 2011-2012 measures, and one Budget 2009-2010 measure.

Disability Support Pension – Impairment Tables

The Disability Support Pension is an essential element of Australia's safety net but it is vital that it supports the people who need it—those Australians who, through disability, are unable to work to fully support themselves.

It is essential that the level of someone's impairment is assessed using the most up to date medical information.

The current Impairment Tables used in Disability Support Pension assessments were last comprehensively reviewed in 1993 and are no longer consistent with contemporary medical and rehabilitation practices.

Over the years this has led to anomalies and inconsistencies which have distorted the assessment process.

For example, when hearing impairment is assessed, a person with a hearing aid is not required to wear it but someone who is having their sight impairment assessed must wear their glasses.

In the 2009-10 Budget the Government committed to updating the Impairment Tables . This is an important element of the Government ' s reforms to the Disability Support Pension to make it simpler, fairer and sustainable for those who need it.

An Advisory Committee of medical, allied health and rehabilitation experts, disability advocates, mental health advocates and relevant Government agencies was established in 2010 to provide advice on updating the Impairment Tables . Following a rigorous process, the Advisory Committee has provided a final report and draft revised tables to the Government.

The Bill removes the current outdated Impairment Tables from 1January2012, and enables new Impairment Tables to be introduced through a legislative instrument.

The draft legislative instrument that contains the revised tables, based on the advisory committee ' s report, will be released shortly for public comment.

Putting the Impairment Tables in a legislative instrument allows them to be updated regularly in response to developments in medical or rehabilitation practice.

These revised tables have been developed following extensive consultation, and ongoing consultation will occur as they are implemented.

Disability advocacy services

The Bill also introduces a stronger quality assurance system for disability advocacy services to ensure people with disabilities receive the best possible advocacy support.

The current quality assurance system has not changed since 1997, and the need for improved quality assurance for disability advocacy services has been highlighted in a number of reviews.

The Bill introduces mechanisms independent from government to assess the compliance of disability advocacy services against Disability Advocacy Standards.

Development of a robust, quality assured disability advocacy sector will help meet the objectives of the National Disability Strategy, and will also help meet Australia ' s obligations under the United Nations Convention on the Rights of Persons with Disabilities.

The third-party certification quality assurance system this Bill introduces has been successfully in place for disability employment services since 2002 . It involves people with disability at all levels in the system, including as members of audit teams.

The new quality assurance system has been successfully trialled and independently evaluated in consultation with the disability advocacy services sector . The evaluation recommended formal implementation.

Changes to income support payments

This Bill also makes a number of changes to the social security law, and veterans' affairs legislation, in relation to Bereavement Allowance and Special Benefit, and the income and assets tests.

The Bill gives effect to a Budget 2011-2012 measure to enable Parenting Payment recipients to access Bereavement Allowance following the death of a partner. Historically, there was no financial advantage in transferring between these payment types. However, the introduction of the Government's Secure and Sustainable Pension Reform package in September 2009 saw a substantial increase to the rate of some pensions, including Bereavement Allowance. Allowing a Parenting Payment recipient to transfer to Bereavement Allowance for a 14-week period, on the death of their partner, will provide additional financial assistance during a difficult time.

The Bill also gives effect to another Budget 2011-2012 measure, to more closely align the rules for accessing Special Benefit for Provisional Partner Visa holders with the rules for other newly arrived migrants.

From 1 January 2012, a class of visa holders determined by legislative instrument will be required to wait two years to be eligible for Special Benefit. This rule will not apply if the visa holder is able to demonstrate that there has been a substantial change in their circumstances after their arrival in Australia and they are in hardship.

Under current policy, Provisional Partner Visa holders are able to access Special Benefit from when they are granted the visa and are in Australia if they can demonstrate they are suffering from 'financial hardship'.

This is not consistent with other newly arrived migrants subject to the Newly Arrived Residence Waiting Period, who need to demonstrate both 'financial hardship' and 'change in circumstance outside of their control' in order to access Special Benefit.

Under these changes from 1 January 2012, Provisional Partner Visa Holders will need to demonstrate they have experienced a 'substantial change of circumstances beyond their control' in addition to financial hardship in order to access Special Benefit.

These changes reflect the community's expectation that new migrants to Australia should be able to support themselves, or be supported by their families and partners unless they are impacted by circumstances outside of their control.

The new arrangements continue however, to ensure adequate protection for vulnerable migrants on Provisional Partner Visas, for example where there is domestic violence, death of a partner or an injury or accident after their arrival in Australia.

The Bill also makes changes to the social security law and veterans' entitlements legislation to enhance the integrity of certain asset-test exempt income streams. These amendments strengthen the existing rules that require lifetime and life expectancy income streams to provide an annual actuarial certificate, in order to gain the benefit of concessional treatment under the social security law.

Currently, in order for holders of lifetime and life expectancy income streams to benefit from concessional treatment under the social security assets test and the Veterans' Entitlements Act, it is required that an actuary certifies that there is a high probability that the provider of the income stream will be able to pay the income stream for its full term.

Currently, some social security customers, after submitting an actuarial certificate that fails to meet the high probability test, later seek to replace this initial certificate with a more favourable certificate that meets the high probability test, a number of times within a financial year.

This Bill clarifies that customers can only give the Secretary (or the Repatriation Commission) one actuarial certificate for each financial year to show that the fund has sufficient resources to pay an income stream for its term.

In the event that a person submits more than one certificate for a particular financial year, only the first certificate given will have effect, not any of the subsequent certificates.

The amendments in this Bill also address inconsistencies in the treatment of these income streams that have arisen over time.

Finally, the Bill also makes amendments to the social security lawto clarify that payments made by an employer to an employee in lieu of notice of the termination of his or her employment are 'redundancy payments' for the purposes of social security law. This ensures that, in calculating income maintenance periods under the Act, people who receive these payments are treated the same as people who receive other types of redundancy payments.

TAX LAWS AMENDMENT (2011 MEASURES NO. 6) BILL 2011

This Bill amends various taxation laws to implement a range of improvements to Australia’s tax laws.

Schedule 1 exempts the outer regional and remote payments made under the Better Start for Children with Disability initiative from income tax.

This amendment is important for families with disabled children in regional Australia. The Better Start for Children with Disability initiative provides funding for early treatment of disabled children. This is important because treating disabled children early in their lives is shown to be more effective than later treatment. Children with disabilities such as sight and hearing impairments, cerebral palsy, Down syndrome or Fragile X syndrome will now have a better start to life under this initiative.

The outer regional and remote payments, made under the Better Start for Children with Disability initiative, are payments of $2,000 available to families in rural Australia. This will support these families who often have to travel long distances and spend extra money to access services for their disabled children.

One-off payments, like the outer regional and remote payments, are often considered income for taxation purposes. The outer regional and remote payments provide important help to regional families. These payments should not be taxed. This amendment ensures that the payments will not be taxable income.

Schedule 2 provides an exemption from fringe benefits tax for transport, from an employee’s usual place of residence to their usual place of employment, where the employee is an Australian resident employed in a remote area overseas. This arrangement is commonly known as a fly-in fly-out arrangement.

This exemption will ensure that Australian residents working for Australian employers in remote areas on fly-in fly-out arrangements are taxed consistently, regardless of whether they are working in Australia or overseas, as well as eliminating any possibility of double taxation on such benefits.

The measure will apply to fringe benefits provided after 1 July 2009, when Australian residents working in remote areas overseas potentially became assessable on their foreign employment income.

Schedule 3 amends the list of deductible gift recipients (DGRs) in the Income Tax Assessment Act 1997. Taxpayers can claim income tax deductions for certain gifts to organisations with DGR status. DGR status will assist the listed organisations to attract public support for their activities.

Schedule 3 primarily adds two new organisations to the 1997 Income Tax Assessment Act, namely, the New Zealand Government’s Christchurch Earthquake Appeal and the Cancer Australia Gift Fund. The New Zealand Government established the Christchurch Earthquake Appeal to help the communities, families and people of Christchurch and the Canterbury region in the wake of the devastating earthquake which hit Christchurch on 22 February 2011. Listing the fund allows Australians to donate directly to the fund and claim a tax deduction.

The Government announced the amalgamation of the National Breast and Ovarian Cancer Centre with Cancer Australia on 15 June 2010. The listing of the Cancer Australia Gift Fund is to allow funds to be used to work directly with stakeholders to improve breast cancer outcomes for women, reduce mortalities from breast cancer, and improve the wellbeing of women diagnosed with the disease.

Full details of the measures in this Bill are contained in the explanatory memorandum.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.

Senator JACINTA COLLINS: 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.

Senator JACINTA COLLINS (Victoria—Parliamentary Secretary for School Education and Workplace Relations) (12:53): I present two revised explanatory memoranda and 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 speeches read as follows—

OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT (NATIONAL REGULATOR) BILL 2011

This Bill amends the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) to establish a national offshore regulator of safety, integrity and environmental management of petroleum and greenhouse gas storage activities in Commonwealth waters. A national offshore titles administrator will also be established through amendments in this Bill to administer titles in Commonwealth waters.

This is the principal Bill in a package of complementary amendment bills, which I will be introducing in this session. This Bill will largely implement the Government’s response to the 2009 Productivity Commission’s Review of Regulatory Burden on Upstream Petroleum (Oil and Gas) Sector. The Productivity Commission’s principal recommendation to reduce unnecessary burden on the industry was the establishment of a national offshore petroleum regulator.

The Report of the Montara Commission of Inquiry of June 2010 recommended, amongst other things, that the proposal to establish a national offshore petroleum regulator should be pursued at a minimum.

The Montara Commission specifically recommended the establishment of a single, independent regulatory body looking after safety as a primary objective in addition to well integrity and environmental management.

The 2008 Varanus Island pipeline explosion and the 2009 Montara oil and gas blowout highlighted the need for improvement in the regulatory regime to be robust and seamless. The existing regulatory arrangements are complex, disjointed, and involve inconsistent admin­istration, including regulatory duplication across governments. These inadequacies largely stem from the risk of regulatory gaps arising from the regulation of safety and integrity being separate from the regulation of environment and day-to-day operations. Maintaining the current arrange­ments is not a credible option in light of the Productivity Commission Review and the Report of the Montara Commission of Inquiry.

In 2009, the Productivity Commission identified a significant unnecessary regulatory burden on the industry. The system is burdensome, slow and lacks consistency across jurisdictions. Currently, the Commonwealth Government has responsibility for petroleum operations in Australia’s offshore areas beyond three nautical miles; however the day-to-day regulation is undertaken by the Designated Authority (DA) in each state and the Northern Territory. This system requires seven separate Designated Authority regulators for Common­wealth waters around Australia, resulting in an inefficient approach to regulation. With the reforms contained in this package of legislative amendments the Government is replacing the seven Designated Authorities with an integrated regulatory system, promoting consistency and efficiency across Commonwealth waters.

The administration of titles will be centralised in the new National Offshore Petroleum Titles Administrator (NOPTA), which will replace the Designated Authority system currently in place for Commonwealth waters. However, the Joint Authority, which comprises the Commonwealth Minister and the relevant state or Northern Territory (NT) Minister, will be retained as the decision maker for key petroleum title decisions.

Retaining the Joint Authorities for petroleum titles ensures that each state and the Northern Territory continues to have a role in decision making on key petroleum projects in Commonwealth waters that could impact the individual state or territory. NOPTA will make recommendations to the Joint Authorities on key title decisions as well as administer titles and collect data relating to petroleum and greenhouse gas storage activities in Commonwealth waters.

As is currently the case, the responsible Commonwealth Minister’s view would prevail in the event of a disagreement. The Commonwealth Minister will also remain the decision maker for greenhouse gas storage titles. States and the Northern Territory will have an option to confer their administrative powers in their coastal waters on NOPTA.

The existing National Offshore Petroleum Safety Authority’s (NOPSA) functions are to be increased to complement their expanded responsibility for well-integrity regulation which this Parliament passed last year. A single national offshore petroleum regulator will ensure only one agency regulates the safety of Australia’s offshore petroleum workers and the environment, from exploration through to decommissioning. Safety, environment protec­tion and day to day operational consents are all concerned with integrity and it is essential that they be regulated in an integrated manner. The expanded authority will be known as the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA).

In developing these reforms, the Australian Government has undertaken significant stake­holder consultation over the last 15 months, with states and the Northern Territory, as well as with NOPSA and the industry. As with NOPSA currently, both NOPTA and NOPSEMA will be based in Perth, convenient for the oil and gas industry, and will operate on a full cost recovery basis. This approach is consistent with the Australian Government’s policy on cost recovery and will help ensure minimal cost regulatory and burden to industry.

These cost recovery arrangements will be reviewed regularly, in consultation with the industry. The establishment costs of NOPTA and NOPSEMA will also be cost recovered, through the existing registration fees, paid by the industry on transfers and dealings of offshore titles. Once the establishment costs of NOPSEMA and NOPTA are fully recovered, currently expected in 2013, these fees will be scrapped – representing a significant cost saving for the industry.

Additionally, these reforms also deliver on the Government’s commitment to the Council of Australian Governments (COAG) reform priorities. COAG’s National Partnership Agreement to Deliver a Seamless National Economy includes milestones to implement the agreed Productivity Commission recommend­ations and remove unnecessary burdens on industry.

The offshore oil and gas industry is vital to sustaining our country’s economic prosperity and security. By passing this bill, together with the other complementary bills, will help deliver on the Government’s commitment to ensuring the Australian community’s confidence in the regulation of the offshore petroleum industry by ensuring operating standards are the best and safest in the world.

The reforms put forward through these Bills will help streamline Australia’s regulatory system, ensuring Australia’s continuing competitive advantage for the necessary investment in Australia’s offshore oil and gas industry to develop our resources for all Australians.

OFFSHORE PETROLEUM (ROYALTY) AMENDMENT BILL 2011

This Bill is to make consequential amendments to the Offshore Petroleum (Royalty) Act 2006 (the Royalty Act).

The amendments are a result of the Offshore Petroleum and Greenhouse Gas Storage Amendment (National Regulator) Bill 2011, which establishes a National Offshore Petroleum Titles Administrator (NOPTA) and the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). NOPTA will advise the Joint Authorities on key petroleum title decisions and administer titles and collect and release data. NOPTA will replace the seven Designated Authorities as the administrator of day-to-day petroleum activities in Commonwealth waters.

To reflect this reform, this bill amends the Royalty Act to replace references to the Designated Authority with the Titles Administrator. The Bill has no impact on the level of royalties paid by industry or on the sharing of those royalties with Western Australia.

Senator JACINTA COLLINS: by leave—I move:

That these bills and the Offshore Petroleum and Greenhouse Gas Storage (Registration Fees) Amendment Bill 2011 and related bills be taken together for their remaining stages.

Question agreed to.

Debate adjourned.

Senator CAROL BROWN (Tasmania—Deputy Government Whip in the Senate) (12:54): Pursuant to order and at the request of the chairs of the respective committees, I present reports on legislation from the Legal and Constitutional Affairs Legislation Committee, the Foreign Affairs, Defence and Trade Legislation Committee and the Finance and Public Administration Legislation Committee as listed at item 9 on today's Order of Business, together with the Hansard records of proceedings and documents presented to the committees.

Ordered that the reports be printed.

Senator SCULLION (Northern Territory—Deputy Leader of The Nationals) (12:56): I rise today to make a contribution to the debate on the Indigenous Education (Targeted Assistance) Amendment Bill 2011. This is non-controversial legislation in the sense that we support the bill. The bill fundamentally deals with two programs: one is the Sporting Chance Program and the other is the Indigenous Youth Mobility Program. These programs have done a very good job in reconnecting Aboriginal people with their schools and their sport. They have certainly increased not only their partici­pation but their success rates in their chosen endeavours. Like many issues in this area, the sad thing is that the bill provides only a further 12 months of funding.

The reason we support these two programs is that fundamentally they are legacy programs from the previous govern­ment, and I commend the government for recognising and maintaining those. But the budget is only for an extra 12 months, which beggars belief when this is such good work. Of course, work comes from people. Policy does not just roll out of a machine and these programs end up getting run. You have to make an investment in staff to run these programs. And of course those staff, again, are not machines. They have mortgages; they have to have some security of tenure. We have now been issued another 12 months—well, jolly good. Times are pretty tough out there and it is very important that the individuals who are part of these programs, particularly the staff of the Sporting Chance and the Indigenous Youth Mobility pro­grams, have a much longer tenure than the 12 months that have been indicated here.

This appears to be symptomatic. Just last week I was speaking to some individuals who run a dialysis service in the Western Desert. They have eight dialysis machines without which those in the Western Desert with renal failure simply could not cope. They have a funding extension of six months.

I am not quite sure why the government is taking this course, but it is taking away people's security in thinking: 'I can stay in this job. It is a career. It's not just a casual job where I have six months tenure.' In areas like dialysis and working with young people we need the people who are delivering these very important programs to know that they have a sustainable future in those programs. Sadly, whilst we support the bill, this is just another example of the lack of recognition of that issue.

Senator JACINTA COLLINS (Victoria—Parliamentary Secretary for School Education and Workplace Relations) (12:59): I thank Senator Scullion for his contribution to this debate on the Indigenous Education (Targeted Assistance) Amend­ment Bill 2011. We believe that the passage of this bill will provide important support for Aboriginal and Torres Strait Islander students. I would ask Senator Scullion to refer to the explanatory memorandum, which explains quite clearly that the government's intention is to align these programs with the review of school funding that is occurring. There is no deliberate attempt to provide difficulty with the tenure of these programs and I am sure Senator Scullion is aware that we are conducting a comprehensive review of school funding initiatives. I also cannot help but note that he comes from the coalition that supported Work Choices, which had perhaps the most profound impacts on employment tenure.

Senator SCULLION (Northern Territory—Deputy Leader of The Nationals) (13:00): Mr Acting Deputy President, I seek leave to make a short statement.

The ACTING DEPUTY PRESIDENT ( Senator Mark Bishop ): Leave is granted for two minutes.

Senator SCULLION: For the record, the minister has indicated that this is all part of a review. We know that the government is very focused on significant outcomes like declaring reviews, but by the government's own admission it would know that this review is focused on all of the mainstream programs. By its own admission, it has said there may be some implications. So, to stand in this place and say, 'This is a review; it's all part of the process,' and to bang on hopelessly about Work Choices reminds me of those people who desperately reach for the Work Choices lever. This is the panic button of politics. 'Some implications' is no excuse not to provide longer term funding and future planning for successful programs. That is what we need and that is not what the government has provided.

Question agreed to.

Bill read a second time.

Senator CORMANN (Western Australia) (13:02): The purpose of the Statute Stocktake Bill (No.1) 2011 is to repeal 39 redundant special appropriations relating to the Commonwealth's financial framework. This includes the repeal of one statutory special account and 25 redundant acts in their entirety. This is a housekeeping bill and has no material consequence in relation to the provision of government programs, funding or new policy. It is part of an ongoing bipartisan commitment to clean up the statute book and it has occurred through five previous financial framework legislation amendment acts between 2005 and 2010, as well as the Statute Stocktake (Regulatory and Other Laws) Act 2009.

Examples of the types of redundant legislation that this bill seeks to repeal include the Papua New Guinea Loan (International Bank) Act 1974, which related to the Commonwealth's guarantee of a loan that PNG took out with the International Bank for Reconstruction and Development and which has since been repaid. It also includes the State Grants (Special Assistance to South Australia) Act 1960, which granted financial assistance to South Australia during the 1959-60 financial year, with the appropriation having long since been spent.

This is a noncontroversial bill. It is a bill the coalition supports. It raises the question though: how many other redundant bills are still on our statute books as we speak today? Hopefully, not only will this work be continued, it also will be accelerated. It is good housekeeping by the parliament.

Senator JACINTA COLLINS (Victoria—Parliamentary Secretary for School Education and Workplace Relations) (13:04): I thank Senator Cormann for his contribution to the debate on the Statute Stocktake Bill (No.1) 2011. The bill, if passed, will abolish 39 special appropria­tions, including a statutory special account, by repealing redundant provisions in 11 acts and repealing 25 acts in their entirety. This reflects the government's commitment to enhancing transparency and accountability in the Commonwealth's financial framework, as consistent with the government's response to Operation Sunlight.

Question agreed to.

Bill read a second time.

The TEMPORARY CHAIRMAN (Senator Mark Bishop): The committee is considering the Carbon Credits (Carbon Farming Initiative) Bill 2011 and govern­ment amendment (1) on sheet BR247.

Senator BIRMINGHAM (South Australia) (13:05): It is good to be back here again on the Carbon Credits (Carbon Farming Initiative) Bill 2011 and back on this amendment. The debate on this amendment was hopefully drawing to a close before we concluded our time for govern­ment business yesterday. I indicated at that time that the coalition think that this is a very important amendment and we are extremely concerned that the comments of the govern­ment senators suggest that they do not take this amendment as seriously as they should. While it is an amendment being moved by the government, it was an issue championed by the coalition. It was an amendment initially put on the list of amendments by the coalition and we welcome the fact that the government chose to embrace it, that it accepted there are genuine stakeholders interested in this amendment. The farming community and the National Farmers Federation in particular have been advo­cating for it. But what concerns us is that the government appears to treat the substance of this amendment with disregard. The minister came in here on Tuesday and tabled draft regulations that flow from clause 56 of the bill that this amendment is seeking to add an extra paragraph to. He tabled those regula­tions, which create what is known in the carbon farming bill, colloquially at least, as the 'negative list'—the list of the kinds of projects that are not allowed. And those projects are not allowed for fear of there being adverse consequences as a result of those projects going ahead. There are four different criteria in the existing bill for those adverse consequences as a result of those projects going ahead. Those criteria deal with matters such as access to water, biodiversity considerations, employment considerations and the impact on the local community. And those four criteria are very valid considerations indeed.

We sought, because stakeholders had a concern, to add a fifth criterion—that fifth criterion being this amendment to add the consideration of any adverse impacts on land access for agricultural production. We sought to do that to ensure that there was some certainty of the matter with regard to how this bill would operate and to make sure that it would not see a loss of prime agri­cultural land in Australia from agricultural production. We think that, as a major food producing nation, that is absolutely critical. We think that, as a country that has both an opportunity and a responsibility to grow our food production in the future, that is absolutely critical. And we think that, in terms of the original four criteria for potential adverse consequences, this fifth criterion is equal to if not more important than the other four. So I was concerned when the minister indicated that he could not point to anything in the draft regulations—

Senator Ludwig: I've heard this before!

Senator BIRMINGHAM: Minister, I was graciously giving you time to get to the chamber!

Senator Ludwig: This is the third time you have made this speech!

Senator BIRMINGHAM: And I did note that I was hoping this was concluding the debate on this amendment.

Senator Ludwig: I will be quiet then.

Senator BIRMINGHAM: Thank you very much, Minister. We do note that the minister has indicated that he believes the regulations do not require changing to reflect this amendment, do not need anything extra. We do not think that is good enough. We think that there is good cause to make sure that the regulations creating the negative list in this carbon farming bill reflect this paragraph (e) just as much as they reflect the other paragraphs, (a), (b), (c) and (d).

I did only want to make some remarks today on this, Minister, to ensure that in the continuity of debate our position on this was clear: we enthusiastically support this particular amendment. We hope that, as the process of finalising the regulations occurs, the government will ensure that it heeds any calls of stakeholders to make changes based on this new paragraph (e) and ensure that those changes reflect both the spirit and the intent of this new paragraph (e).

In closing, I thank the government for their support and for their moving of this amendment which the opposition had called for, but I just hope that they take it seriously from hereon in.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry, Manager of Government Business in the Senate and Minister Assisting the Attorney-General on Queensland Floods Recovery) (13:11): I only want to be brief. As I indicated last time—I think a number of times—in response to the same speech, the amendments are there to both add an additional paragraph to and to clarify the legislation. But, in addition to that, the regulations are out for comment. If there are comments which go to these provisions, and people do want to provide additional material on the basis of those regulations, then comments are always well received and will be considered in due course. But we are talking about amendments at this point, and not the regulations.

Secondly, I want to highlight that we have now been spending three hours or therea­bouts in furious agreement on an amendment that we all agree with. At this rate I would hate to meet an amendment that we do not agree on and see how that affects the time it takes to pass this legislation. The amount of time-wasting by the opposition in relation to the carbon farming initiative bill is now going from the sublime to the ridiculous. We are spending an inordinate amount of time on matters other than the CFI legislation. It is disappointing to see the opposition dragging their heels in relation to a bill such as this. I am not trying to be provocative to those opposite. I am simply pointing out that this bill does need to pass. It is preventing farmers and the community from enjoying the benefits of this bill and being able to access the significant advantages under it.

I understand legislation does take some time to progress in the parliament, and I think I am known as a patient man when it comes to the passage of legislation and the ability to ensure that everyone can have an opportunity to have their particular matters heard. Having sat through yesterday, I am sure most who were in the chamber or watched the chamber would agree that much of it was not about this bill; much of it was not about the amendment that was before us. On that basis, if the opposition are going to continue to take that approach, it will be disappointing to the government that the opposition have gone this far. But I would like a flag as to whether or not the opposition will continue to take this approach for the remaining amendments. I do think the opposition does need the required time to be able to consider each individual amendment in a thoughtful and considered way—I do not quibble with that. However, I do want to flag that at some point we will need to finalise this bill. If the opposition can point to additional time or hours we might be able to consider, that would be helpful, because we do not want to be sitting here at Christmas time still on the carbon farming initiative bill—and at the rate we are going we could very well be.

Senator BIRMINGHAM (South Australia) (13:14): I was not intending to speak again on government amendment (1), but Minister Ludwig did invite my contribution, so I will make one. Let me be very clear. Some days this place proceeds through things faster than other days, some days the focus is very specific to the detail of the question before the chair and some days—due to issues and events of the day—debate is a bit more wide ranging. That occurs on all sides, from all parties and at all times, and it is well accepted and tolerated right around the chamber. We have no particular desire to delay the debate on this measure. Each time it has come up, we have come in here and made constructive contributions. The opposition seeks to work through each of these amendments system­atically as best as we possibly can.

We will happily work with you. I will leave it to Senator Ludwig, who is not only the minister at the table but also the Manager of Government Business in the Senate, to negotiate with his equivalents from the other parties in this place as to hours and how this legislation is treated—that is, when we debate it. However, how we debate it and how long we debate it will of course be determined, ultimately, by the chamber. We will seek to move through as systematically and cooperatively as we can whilst giving everything appropriate airing.

I say to the government that when we went through the Senate committee process on this bill there was a lot of criticism about the way the drafting occurred and about the way consultation and engagement with stakeholders occurred. There was a lot of criticism of the time line. As we then finalised that, there was a lot of criticism that the substantial draft regulations underpinning how this bill works—in particular, the negative list to which this amendment pertains—had not been finalised and were not publicly available to be considered in tandem with this legislation. If anything has slowed down the debate this week, it is the reality that it was only on Tuesday that the government came into this place and presented those draft regulations, for which the opposition and many others had been calling for some time. That is what slowed down debate this week.

Yes, some questions and some contribu­tions have gone more to the draft regulations than to the specific amendments we are considering. That is because we have been consistent from day one that those regula­tions are critically important to the way this bill works and that they should have been considered in tandem with this bill. That point has been made by many coalition speakers and was made in the dissenting report of the committee inquiry into this bill and, in fact, when this bill was first released.

So we have been crystal clear. We are pleased to finally see those draft regulations. They do of course aid us in the debate. But if those draft regulations had been released back when they should have been released—so that the full measure of the complexity and the impact of this legislation could have been considered as one—then the debate to date might well have proceeded far more smoothly. But, as I said, I think we have given extensive consideration to this amendment. I note that my colleague Senator Nash, who has a strong interest in this bill, is with us but was not with us yesterday, so I do not know whether or not she is intending to say anything on this amendment. I have said enough on it—I agree with the minister on that—and I trust that we will be able to proceed on the matter shortly.

The TEMPORARY CHAIRMAN ( Senator Mark Bishop ): The question is that government amendment (1) on sheet BR247 be agreed to.

Question agreed to.

Senator BIRMINGHAM (South Australia) (13:18): I propose to withdraw opposition amendment (1) on sheet 7117, noting in doing so—as we did in the previous debate—that this amendment was moved by the opposition on the encourage­ment of stakeholders, in particular the National Farmers Federation and other farm­ing groups. We are pleased that the govern­ment chose to adopt the amendment in a slightly modified form. Having just passed that amendment through the chamber, we now withdraw our very, very similar amend­ment.

The TEMPORARY CHAIRMAN: Opposition amendment (1) on sheet 7117 is withdrawn. Senator Colbeck, do you wish to address opposition amendment (3) on sheet 7120?

Senator COLBECK (Tasmania) (13:21): I did, but I do not intend to proceed with that amendment.

The TEMPORARY CHAIRMAN: The opposition is not proceeding with opposition amendment (3) on sheet 7120 and, accordingly, consequential amendments (4) to (6) on sheet 7120. Since Senator Xenophon is not here, we might now proceed down to opposition amendment (2) on sheet 7117.

Senator BIRMINGHAM (South Australia) (13:21): I move opposition amendment (2) on sheet 7117:

(2)   Clause 122, page 154 (after line 30), after subclause (3), insert:(3A)   In the case of a project which was accredited under the Greenhouse Friendly program at the time that program was terminated—if a methodology determination is made on or before 30 June 2012, the determination may be expressed to have come into force at the start of 1 January 2008.

This is an example of how the clerks always do such a good job in presenting an order for these amendments. It will probably have been useful to have examined some of the other amendments that are proposed by Senator Xenophon and the opposition as we work through some of the factors as to how this scheme interacts with previous schemes in existence, either the Commonwealth's Greenhouse Friendly scheme and the way that it operated or the New South Wales government's GGAS. There have been a number of concerns about the interaction between those programs and ensuring that we have a smooth transition that avoids, as the committee report highlighted, any per­verse outcomes or consequences, especially perverse outcomes or consequences where we may see a pre-existing program that operated as a carbon abatement measure come to an end because it will not be covered or adequately captured by this new Carbon Farming Initiative.

Certainly some of the issues which we will explore in amendments that we will be moving with Senator Xenophon pertain to issues of, in particular, landfill gas. Those issues will look very closely at how we preserve in place such schemes that were developed under Greenhouse Friendly or under the GGAS in New South Wales that capture the off-put from landfill gas and in capturing that off-put—methane, in particu­lar—burn it, generate their own electricity and stop emissions escaping from those landfill sites. There are concerns that, due to the way that this has been structured as legislation, some of those projects will not be able to proceed. They are certainly some of the issues that we plan to address in the joint amendments that have been developed with Senator Xenophon.

This amendment to clause 122 seeks to insert a new clause 3(A) that:

In the case of a project which was accredited under the Greenhouse Friendly program at the time that program was terminated—if a methodology determination is made on or before 30 June 2012, the determination may be expressed to have come into force at the start of 1 January 2008.

My understanding is that this seeks to provide a more certain period of continuity for those Greenhouse Friendly programs or activities. Greenhouse Friendly was a program initiated by the Howard govern­ment. It was one of many different programs in the climate change space initiated by the Howard government that we are proud to have started, that we are proud to have seen commence and that provide a very sound footing for Australia in meeting our inter­national obligations when it comes to dealing with matters of climate change.

The Howard government set up the first infrastructure in the government to deal with climate change matters, to deal with reducing greenhouse gas emissions and to set Australia on a trajectory where we will proudly be one of the few countries in the world to meet the obligations we agreed to under the Kyoto framework. Greenhouse Friendly has played and will play a key part in making sure that Australia meets those Kyoto framework obligations.

It is worth noting that Australia will be one of the few countries to do that and has done so without the imposition of a carbon tax. Whilst that debate is one that I know Minister Ludwig does not wish to have at length here, I think it is important when we are highlighting some of these previous programs to note that we have achieved or are well on track to achieving the 2012 commitments set down under that Kyoto framework without such an imposition but through other clever policy measures, including Greenhouse Friendly, which sparked a lot of voluntary action by many parts of the Australian industry who wanted to do their bit, who saw a good opportunity available and who have made great contri­butions towards that target.

Instead, we are now going to enter an era where the government proposes to penalise everybody to try to achieve a target without any international agreement in place beyond 2012. There is a strange contrast between the styles of the two governments. Under the Howard government, we incentivised volun­tary action to meet an agreed global target. Under the Labor government, through penal­ties, they are going to force action to meet a global target that does not exist. That is a very interesting and stark contrast between the approaches of the two governments.

However, to return to this amendment, we think that in providing continuity, certainty and hopefully making sure that projects that operate under Greenhouse Friendly can continue to operate under this new scheme it is appropriate to give consideration to the amendment that is before the chair.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry, Manager of Government Business in the Senate and Minister Assisting the Attorney-General on Queensland Floods Recovery) (13:29): I understand the amend­ment. The government does not support it. This amendment would effectively allow Greenhouse Friendly companies to receive CFI credits for abatement right back to 2008. The CFI does allow some backdating which goes back to 1 July 2010. This is a new piece of legislation designed to assist the farming community. Further backdating to 2008 could literally undermine the environmental integrity and value of the CFI credits. This legislation is designed to ensure that we do have integrity within this system. In looking at this issue though, the government will consider options for including some or all Greenhouse Friendly credits under the National Carbon Offset Standard for a transitional period. So it is not all bad news. This would increase the value of Greenhouse Friendly credits.

In this area, the government's view is that you are in the wrong place. I understand what you are trying to do, but it is about the Carbon Farming Initiative and it is about ensuring that we have a system that allows backdating to 1 July 2010 and that we use the methodologies under this to assist the co-benefits, which I described earlier, in the agricultural areas. But in dealing with Greenhouse Friendly companies, who have those types of things out there, the place to deal with the Greenhouse Friendly credits is under the National Carbon Offset Standard. That legislation is coming before this parlia­ment, so it is not something that we are putting off. A much better opportunity to use that type of action again—in other words, this type of amendment—would be in the guidelines or in the next piece of legislation. That is by way of suggestion. I am trying to gabble with your amendment. We oppose it.

Senator BIRMINGHAM (South Australia) (13:32): I thank the minister for his response. He highlighted that there is scope for a backdating, as such, of credits to the start of 1 July 2010, and I note him doing that. The EM states that that is to allow backdating of existing projects such as projects under the Australian government's Greenhouse Friendly program. My under­standing is that for the alternative waste treatment sector the bulk of the Greenhouse Friendly scheme credits they possess were generated during the period between 1 January 2008 and 1 July 2010; thereby meaning that they will, in the main, miss out on that backdating start date of 1 July 2010. Could the minister explain on what basis 1 July 2010 was set as the date and is it the government's understanding that the alternative waste treatment sector will largely miss out as a result of that date having been set?

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry, Manager of Government Business in the Senate and Minister Assisting the Attorney-General on Queensland Floods Recovery) (13:33): I thought you might have recalled that it is the original start date of the CPRS; but it may have slipped your mind. We think that was an appropriate place to backdate it to given we have been saying that for some time. It seemed a logical place given it was the original start date and people may have made decisions around that start date.

Question put:

That the amendment (Senator Birmingham's) be agreed to.

The committee divided. [13:38]

(The Chairman—Senator Parry)

Question negatived.

Senator XENOPHON ( South Australia ) ( 13 : 42 ): by leave—I, and also on behalf of Senator Birmingham, move amendments (1) to (4) on sheet 7129 revised together:

(1)   Clause 5, page 12 (after line 9), after the definition of general law land, insert:

Greenhouse Friendly Initiative means the Greenhouse Friendly Initiative for the reduction of greenhouse gases established by the Commonwealth and administered by the Department administered by the Minister administering this Act.

(2)   Clause 5, page 17 (after line 9), after the definition of net total number, insert:

New South Wales Greenhouse Gas Scheme means the greenhouse gas reduction scheme established by Part 8A of the Electricity Supply Act 1995 (NSW).

(3)   Clause 5, page 18 (lines 23 and 24), omit the definition of prescribed non-CFI offsets scheme, substitute:

prescribed non-CFI offsets scheme means:   (a)   the New South Wales Greenhouse Gas Scheme; or   (b)   the Greenhouse Friendly Initiative; or   (c)   a scheme prescribed by the regulations for the purposes of this paragraph.

(4)   Clause 95, page 124 (lines 11 to 19), omit subclause (2), substitute:(2)    As soon as practicable after making the declaration, the Administrator must consider the request and may, by written notice given to the person who made the request, determine that this Act has effect, in relation to the project, as if:   (a)   if the project is a sequestration project:      (i)   paragraphs 89(1)(b), 90(1)(b) and 91(1)(b) had not been enacted; and      (ii)   the net total number of Australian carbon credit units mentioned in subsections 89(3), 90(3) and 91(3) were increased by the number specified in the determination; and   (b)   if the project is a landfill legacy emissions avoidance offsets project that was accredited under the New South Wales Greenhouse Gas Scheme—the baseline for the purpose of making a methodology determination under section 106 is 20%; and   (c)   if the project is a landfill legacy emissions avoidance offsets project that was accredited under the Greenhouse Friendly Initiative—the baseline for the purpose of making a methodology determination under section 106 is 0%.

This set of amendments ensures that early adopters of carbon sequestration projects will not be disadvantaged under the Carbon Farming Initiative. The collection and use of landfill gas for electricity generation is one of the most effective means of reducing greenhouse gas emissions. Australia's landfill gas power generation sector currently reduces carbon emissions by over four million tonnes of carbon dioxide equivalent each year. However, under the bill currently before the Senate, there is no certainty for these businesses—which currently operate under the New South Wales GGAS scheme or the Greenhouse Friendly scheme—that they will be considered under the prescribed non-CFI offsets scheme, nor what baseline would be applied. These amendments insert a provision that, for existing projects wanting to transition into the CFI scheme, a baseline of 20 per cent be applied to projects currently under the New South Wales GGAS scheme and a baseline of zero per cent be applied to projects currently under the Greenhouse Friendly scheme. These amend­ments also insert the New South Wales GGAS scheme and Greenhouse Friendly scheme into the definition of the prescribed non-CFI offsets scheme.

Currently it will be up to a determination to specify what baseline will be applied to existing projects, and this simply does not provide early movers with any certainty about the viability of existing projects. It should be noted that 20 per cent is a conservative figure that has been determined based on the national greenhouse gas inventory data. Inserting a 20 per cent baseline into the legislation for existing projects under the GGAS scheme and zero per cent for existing projects under the Greenhouse Friendly scheme will give this industry certainty for its projects.

LMS is a renewable electricity generator that was established in 1982. It is a South Australian based company employing some 100 people across the country. It was an early adopter—in fact, one of the first adopters of carbon abatement projects. The Prime Minister visited LMS's Rochedale plant, in Brisbane, on 13 July 2011. This is what the Prime Minister said at that time:

And I’m here today at LMS, and I thank them for having me here, looking at how they are generating electricity from landfill. Landfill, as it decomposes, creates the kind of carbon pollution we’re worried about, it particularly creates methane gas. Here at this facility today, instead of that gas simply going into the atmosphere as pollution, it is being captured and it’s being used to generate electricity …

And that electricity is powering more than 4500 homes. This kind of clean energy future is probably a bit unexpected, people have heard about solar and they’ve heard about wind, they may have heard about geothermal, but here is another innovative way that we will see a clean energy future using the gas from the landfill to generate electricity.

It’s this kind of clean energy future that will be turbo-charged by putting a price on carbon, as we create the circumstances where new clean energy ventures can prosper. I’ve been very pleased to learn about this clean energy venture today and it’s why I’m so determined, because I know these things are possible, that we as a nation seize a clean energy future by putting a price on carbon.

Interestingly, unless we significantly amend the legislation, then the legislation in its current form could well lead to a closure of the very plant that the Prime Minister visited, because there will be no investment certainty. But, more than that, this plant will not be viable. That is a very serious concern. If a standardised baseline of 20 per cent is not provided and does not give certainty to LMS, projects such as the Rochedale project that the Prime Minister visited will, most likely, close down. Indeed, LMS's 15 separate projects under the GGAS scheme could all be threatened if this amendment is not passed. In Queensland, projects include Rochedale, Swanbank, Whitwood Road and Birkdale. New South Wales projects include Tweed Shire; Summer Hill, Newcastle; Awaba, Newcastle; Eastern Creek; and Wyong. In Victoria, LMS has projects in Hallam Road, Wollert, Bendigo, Ballarat and Shepparton. In Tasmania, it has a project in Remount, in Launceston. These projects combined create an estimated 1.33 million tonnes of CO2 abatements annually. LMS also has four Greenhouse Friendly projects which could be put at risk. LMS is but one example.

Altogether, the landfill gas industry delivers around four million tonnes of CO2abatement each year. Failure to provide certainty that existing projects will be able to transition into the CFI, with a fixed 20 per cent baseline for GGAS existing projects and zero per cent baseline for existing Green­house Friendly projects, could see the closure of these projects.

These amendments will provide that certainty and will ensure that the Carbon Farming Initiative supports all carbon abate­ment schemes, including existing projects which have been initiated by early movers.

As I understand it, there have been many negotiations in the last 24 hours in relation to this matter. I hope Senator Milne does not mind my saying this, but I am particularly grateful for her longstanding interest—long­er standing I think, than that of most of us in this chamber—and her particular awareness of this issue. I know we can debate issues of additionality, but it would not make sense to me unless there is a proper transitional mechanism for these sorts of projects.

Senator MILNE (Tasmania—Deputy Leader of the Australian Greens) (13:48): The capture of gas from landfill is certainly a critically important component of dealing with greenhouse gas emissions. Turning it into energy generation is very good for society and greenhouse gas emissions. Whilst we will always aim to reduce landfill, it will be a while before we get to the point where we have zero waste, so we need to support companies that are actually out there doing this. A number of them actually got in and started to do it early before there was any compulsion to do so. However, in recent years, particularly in metro management of waste there have, increasingly, been local and state government regulations requiring the capture of gas from landfill. In terms of this bill, the question then becomes: how can you measure that which is additional, recognising that there is already regulation in metro Australia and that, in most of rural and regional Australia, there is no regulation?

However, I am very concerned that the companies concerned had not engaged in this debate in terms of the parliament working out how we might deal with this under the Carbon Farming Initiative. In talking to LMS they said, in particular, that they had been engaged in discussions with the government over a long period and had hoped it would resolve the matter and that is why they had not brought it into a political context. As it has been brought into a political context, I want to thank the minister and the depart­ment for facilitating a meeting for me yesterday with both the company and the technical experts from the department so that we could sit down and work out how we can move this forward. I am sure that no-one in this parliament would want to see companies that are actively engaged in reducing carbon emissions, employing people and doing the right thing actually go broke as a result of this program. No-one in this parliament would think that was a sensible thing.

Yesterday we had a meeting. It came down to a discussion about the technicalities of what the baseline should be for measuring this as the entitlements would occur under the legislation. I have been told that those discussions were fruitful and that there has been some resolution. So, before I make a decision about what we are doing on this matter, I want to hear what actually happen­ed overnight in those technical discussions. It would be good to see this matter resolved in a positive way with regard to the environ­mental impacts, the jobs in those industries and to actually get advancement for this whole issue of management of the land waste sector in Australia.

Senator BIRMINGHAM (South Australia) (13:51): I thank Senator Xenophon for co-sponsoring this amendment with the opposition and for his work on this topic with us and with the industry affected. I also thank Senator Milne for her comments just then and for her indication that this is an area of genuine need for consideration when looking at the bill and, in particular, for reserving her position on these amendments, depending upon where discussions have gone between the government, the affected industry sector and companies and upon what solution the government has for this matter. I will not make a lengthy contri­bution now, noting that the debate will conclude at two o'clock, and I am eager to hear from the minister as to whether there has been some progress. I would just highlight that in the committee report of the inquiry into this the No. 1 recommendation was:

... the government consider options to ensure there are no perverse incentives to cease existing abatement projects, and encourage first movers to undertake further abatement or sequestration activities under the Carbon Farming Initiative.

In the response to that Senate committee inquiry tabled the other day by the govern­ment, they did indicate support for that recommendation. They did indicate that they thought there should not be perverse incen­tives to cease existing abatement projects.

As Senator Xenophon has highlighted, there are a number of projects that could be at risk were the bill to pass without amend­ment and without addressing this issue. We think that would be totally unacceptable. These are companies that have invested in good faith. These are companies that have done the right thing by the environment by capturing the gases from landfill projects and ensuring that they are used to generate electricity, and it would be an utter waste if those systems were not encouraged into the future. There are many localities—regional centres such as Bendigo, Ballarat, Tweed Shire, Launceston and Newcastle—that would potentially be most vulnerable in this regard. Some of those regional centres would be the ones most likely to see the perverse outcome where, if we pass this, in fact we will end up with less rather than more abate­ment, and that obviously is not an outcome that would be at all acceptable under this scheme.

There are some other points that I would like to and probably will highlight when we return to this debate but, to make sure that the minister can at least update Senator Milne and the chamber on discussions with proponents to now, I will leave enough time for him.

Senator LUDWIG (Queensland—Minister for Agriculture, Fisheries and Forestry, Manager of Government Business in the Senate and Minister Assisting the Attorney-General on Queensland Floods Recovery) (13:54): Than you for that, Senator Birmingham. The government understands the issue faced by LMS Generation, issues which are added to by the coalition—but I will leave that aside. However, these amendments seek to bypass the independent process that the government has established for assessing methodologies, which is the Domestic Offsets Integrity Committee. The rules for setting baselines are set out in the methodologies. These need to be supported by credible evidence and assessed by the Domestic Offsets Integrity Committee; that is the gateway in.

The government is working with the landfill industry on approaches for setting baselines for existing landfill projects under GGAS and Greenhouse Friendly in the government's landfill methodology. The gateway is through DOIC—establish the methodology, set the baselines for existing projects under GGAS and Greenhouse Friendly. The government recognises the value of a standardised approach to baseline setting for existing landfill projects that have been operating under GGAS and Greenhouse Friendly. It is something we recognise. The government will consult on appropriate baselines, with a view to having the matters resolved within the next month. Standardised baselines would be included in the landfill methodologies and assessed by the Domestic Offsets Integrity Committee before being approved by the minister and laid before parliament as disallowable instruments.

In saying all of that, we do not support the amendments. We do not see the need for the amendments. We can deal with it within the existing framework. Ostensibly we will all land at the same place. I think we are all in screaming agreement that we need to do something in this area. I cannot make any stronger commitment than the words that I have used. They are as strong as we can give. I will say them again: the government will consult on appropriate baselines, with a view to having the matters resolved within the next month. It is clearly within our intention. I cannot put any stronger words than those, and I am sure that you will be able to draw your conclusions from that. On that basis, we do not support the amendments. We do understand where the amendments are going. It is also pleasing that those opposite under­stand that it is imperative to pass the bill.

Senator XENOPHON (South Australia) (13:56): I appreciate the minister's answer. I appreciate the minister says that it is not the intention of the government to disadvantage plants such as these, which have made a tremendous contribution in CO2 abatement by being early adopters. We know what the Prime Minister has previously said about early adopters generally on the whole issue of greenhouse gases, and I agree with the Prime Minister: if you are an early adopter, you ought to be rewarded. But what we have with this legislation is a situation where early adopters are in fact being punished, to the extent that their businesses might not be viable. To say that this is going to be resolved by regulation is, I believe, completely unsatisfactory. There needs to be a solution to this. It needs to be a solution that is enshrined in legislation rather than left to regulation. If it is left to regulation, it will just compound the uncertainty. We have the whole issue of disallowable instruments, which is quite a proper process, but dealing with this in the absence of a specific legislative framework, a specific legislative baseline, is completely unsatisfactory.

It is important to acknowledge the work of LMS and others who have done this. LMS has previously acknowledged in its material that five per cent is not a realistic baseline. Some of the abatement stems from GGAS projects which could have occurred to control odour and for occupational health and safety reasons. A 10 per cent standard­ised baseline for GGAS landfill gas projects would be realistic, as it would account for common practice legislatively required abatement activities. However, there is a need to be conservative when estimating standardised baselines; therefore, a 20 per cent national baseline for all GGAS landfill gas projects to transition into the CFI is fair and justifiable. It is a conservative approach. It is an appropriate approach. There is no windfall at all. In fact, they are 'taking a haircut', to use a colloquialism, in relation to this. This 20 per cent baseline would only apply to existing GGAS landfill projects. As mentioned previously, GHF projects already have a proven baseline of zero. Any new CFI landfill gas projects should need to satisfy a new standardised baseline. This will ensure the integrity of both the GGAS baseline and the new projects baseline. That is why it is important that the negotiations continue.

I would like to acknowledge again the work of Senator Milne in facilitating that very crucial meeting between the department and LMS, where I think there was some real progress made. Let that progress continue, let it continue quickly and let us ensure that there is a satisfactory outcome, where the outcome can be dealt with in the context of this bill. Do not leave it to chance and uncertainty with regulations. It is simply too important for this early adopter of these measures.

Progress reported.