Senator HANSON-YOUNG (South Australia) (09:31): I rise today to speak to the bill currently before this chamber, the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, that proposes to dump vulnerable men, women and children anywhere but here—a proposal put forward by this government that trashes Australia's obligations under international law and, of course, our obligations under the refugee convention. I note that, interestingly, overnight the UN Secretary-General, Ban Ki-Moon, has reminded Australia that our obligations are not optional. Ban Ki-Moon is calling on Australia to do what it is that we have signed up to do: to treat people with dignity, respect, care and compassion when they arrive on our shores desperate for protection and safety.

Australia was the sixth country to sign and ratify the refugee convention in 1954 under Liberal Prime Minister Robert Menzies. In Geneva on 22 January 1954 Australia's representative to the United Nations called it the Magna Carta of the refugee. He said, 'I am glad now to offer further evidence of our compassionate concern with this problem by formally stating our binding adherence to a convention which will elevate the standard of treatment of refugees to the status of international legal obligation.' Erika Feller, the UNHCR Assistant High Commissioner for Protection, has said that this convention is the wall behind which refugees can shelter. The importance of this convention and Australia's adherence to its obligations are highly understood by Australians, by members in this place and by the international community.

The reason we are even having this debate on this piece of legislation is because we have vulnerable people fleeing persecution and brutality from places around the world. I want to give you a quick snapshot of one young man who is now living in Melbourne, Hatif, who had to flee the brutality of the Taliban in Afghanistan. He came to Australia seeking our protection and our help. Hatif was 15 when his father was killed by the Taliban. His father was an interpreter for the coalition forces in Afghanistan. His father worked with our own officers, our own brave men and women, in Afghanistan so that they could understand the language, the messages and the important discussions that were being held Afghanistan. His father acted as our interpreter to the local administration of the leaders in Afghanistan. For that, it cost him a very high price: his father was killed by the Taliban. And the Taliban left a note on his father's body saying that his teenage son would be next.

Hatif speaks very good English, and being the son of an English interpreter who had worked for the armed forces in Afghanistan made him a direct target once his father had been killed. His mother, sadly, realised that she would have to get Hatif out of Afghanistan if he was to survive. He was detained on Christmas Island after arriving in Australia by boat. He is now doing brilliantly at a local school in Melbourne—he is the top of the class in specialist maths and IT. He wants to be an engineer for Australia, but he desperately misses his family. I have written to the minister about Hatif, about the fact that his family cannot arrive here because there is no effective family reunion for him. Regardless of the fact that he had no choice but to flee his country, the minister's bill is going to make it even harder for Hatif and people like him to seek the protection they deserve, the protection they need.

We have a debate in this country about the pull and push factors. The push factors are the persecutions, the brutality and the torture that the individual refugees have to flee. The pull factor is that Australia is a signatory to the refugee convention which, when we signed in 1954 under the Menzies government, we proudly stood by and said that it was because we understood compassion was important. That is the pull factor—that Australians live proudly in a fair country where we look after one another, where the vulnerable have a safety net. That is the pull factor in this debate.

The deterrence is the awful decision that refugees make to flee their homelands in the first place and take that dangerous journey. The deterrent is having to make the decision to leave, however that is done, whether in the dead of night or in the morning, and whether you take your family with you, where you go, who will accept you and what is the best avenue for safety. Having to make that decision to leave your home, your family, your community is the deterrent.

Unfortunately we have got ourselves into an awful state of affairs where both sides of this place and the other have locked themselves into a delusion that if we can deter refugees from seeking protection that somehow that relieves us of our obligations to help others. When there are no durable solutions for refugees, when there is no ability for safety after they have left their homelands, refugees will continue to flee and they will continue to run until they feel safe. Pakistan, where many of the Afghan refugees have been hiding in fear of the Taliban, is pushing those refugees back. They are no longer safe in Pakistan and they move on to the next place. They move to Malaysia, they move to Europe, they move to Indonesia.

In our region there is no protection for these people under law except for those countries that have signed the refugee convention. Many of the people are not even able to come to Australia by plane because we do not offer them visas to get here. If you are from Afghanistan, Iraq, Iran or from Syria, the government believes that you are at high risk of applying for asylum and you will not be given a visa to fly into this country. Our whole policy is designed to force people onto boats. The government do not want to talk about that because they would prefer to have the tussle with the opposition about deterring people who need our help from even asking for it. That is what this whole debate is about. We do not want these refugees here. That is what the minister's legislation says. It is what John Howard's legislation said. John Howard said that he wanted the right to decide who came into this country and the means by which they came. This legislation says that the government will decide, and if you are a refugee coming by boat you will not be allowed into this country. This is John Howard's legislation, make no mistake about it.

There are a lot of mistruths about this issue. I heard the leader of the chamber here from the opposition, Senator Abetz, say yesterday that there is a 'tsunami' of refugees coming to Australia. That is a lie. It is not true. He knows that it is not true. Australia takes less than two per cent of the world's refugees. There is no tsunami. There are a number of boats of very poor, desperate people who have been forced to take that journey because they have no other, safer option.

The expert panel asked for submissions from experts in this field, and they got submission after submission after submission that outlined what could be done to save lives now. We need to be looking at what worked in the Fraser government years. We need to be looking at how at that very particular time—and there were many, many more people desperate for protection in our region—we managed their needs from a humanitarian perspective. We assessed people's claims effectively where they were with a commitment to take those who genuinely needed our help. We did not wait for them to board a dangerous leaky boat only then to be shunted off out of sight out of mind because the reality was we never wanted them here anyway. We had true leadership that said Australia is a signatory to the refugee convention and we will abide by our obligations. We would work with our regional neighbours to assess people's claims and keep them safe while that application process was undertaken, and then welcome them into our communities.

We asked other countries to take them too. They went to Canada and the United States, and many, many of them came to Australia. We took tens of thousands Vietnamese refugees back in those days because it was the right thing to do. The members of this place had the courage to do the right thing.

This bill that is currently before this chamber has nothing of our courage in it at all. It lacks courage, but is all about cruelty; it lacks compassion, but is all about harm; and it lacks decency, but is all based on a lie that these people do not have rights, that they are not our responsibility and that if we be as mean as we possibly can that will deter them. It is simply not the truth.

The countries from which these people are fleeing are places like Afghanistan, Iran, Iraq and Sri Lanka and, increasingly, Syria. These are people who we know are fleeing places where they are brutalised—places of persecution. They are not here simply because they thought it was the easy option. It is the hard option; it is a hard thing to decide to leave your family, to leave your community, to leave your home and to flee in fear of your life. That is not an easy option. That takes courage, that takes bravery and that takes a commitment to humanity—to save the lives of your family.

They are the people who, over the generations, have made this country great. People who understood hardship, loyalty and resilience. These are the people who have built this country, who have contributed so much to this country and who will continue to do so. When young Hatif becomes an engineer he will be a fine engineer. He will probably be rebuilding the infrastructure that this country desperately needs for the future, because he understands loyalty, commitment and hard work.

The Houston report included many important recommendations, none of which this government or the opposition have said any word of since Monday. Where is the commitment to increase our refugee intake immediately? Where is the plan to resettle those who have been waiting for years in Indonesia? Where in this legislation is our commitment to upholding our commitment under the convention to treat people properly, to ensure that they are housed appropriately, to ensure that they have access to legal assistance and to ensure that we do not detain children? None of that stuff, none of those important safeguards which are listed in the Houston report, are in this legislation. The government say that they are implementing the Houston report and they have not even bothered to read the detail of the recommendations.

We can be doing things now to save people's lives. Those who submitted to the Houston panel said it very clearly: increase the ability to assess people's claims and give them an opportunity to apply for protection in Australia in the places where they are. We know they are in Malaysia and we know they are in Indonesia; commit to doing that there and bring them safely to Australia. This debate has become riddled with this issue of saving lives at sea. If we were saving lives at sea we would be bringing these people safely to our shores. We would be giving them an opportunity to apply for protection safely in the places where they are waiting, scared, frightened, helpless and desperate. And yet that is not what this legislation is about. This is going back to the horrors that we know happened in Nauru and Manus Island. It is not by staring into the tea leaves at the bottom of the cup that we know these things will happen, because they have happened before.

Mr Deputy President, before I wrap up I will table these really important pictures that were drawn by children last time they were detained on Nauru. Indefinite detention damages children, indefinite detention violates children's rights and indefinite detention kills people. This legislation will not save lives; this legislation will kill people. It will send brave, courageous and resilient people insane. We know it will because it did last time. Rather than learning from the mistakes of the past and learning from what worked in history, like the leadership that was taken by the former Prime Minister, Malcolm Fraser, this government have lost their way. This government have lost their moral compass. This government are doing what Tony Abbott asked for, and Tony Abbott cannot be trusted on people's human rights. Tony Abbott wants to be as cruel as possible to the most vulnerable people who reach our shores. I condemn the bill, and we will not be supporting it in this place.

I seek leave to table the documents I referred to.

Leave granted.

Debate interrupted.

Senator RONALDSON (Victoria) (09:52): I also acknowledge Malcolm Fraser's presence. I do not agree with him in relation to this issue, but I do acknowledge a former Prime Minister and fellow Victorian. What I do not need today is a lecture from the Australian Greens in relation to this issue—the crocodile tears of compassion that we have heard again today. Why doesn't Senator Sarah Hanson-Young tell us what is compassionate about 1,000-plus people dying at sea? Why doesn't Sarah Hanson-Young tell us what is compassionate about people languishing in refugee camps in Thailand, Malaysia and elsewhere? What Senator Sarah Hanson-Young and the Greens know is that some of those illegal arrivals in this country by boat from Indonesia—some of them—may well be genuine refugees. What Senator Hanson-Young and the Greens know is that every single person in those UNHCR camps is a genuine refugee. What the Greens want to do is to put the rights of those illegal boat arrival people above the rights of those in those UNHCR camps. That is not compassion, and I am sick and tired of the crocodile tears coming from the other side.

Two years ago the Prime Minister of this country made an unequivocal commitment to the people of Australia that there would be no carbon tax under a government that she leads, and straightaway after the election we found out that that was an unmitigated and clear lie on the part of the Prime Minister of this country and the government. But this is just one example of a government and a Prime Minister that simply cannot be trusted. Indeed, if you look at what their policies contain, they are designed only to keep or obtain government. There is no better example of that than in relation to this debate on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012.

There have been 22,000 illegal arrivals in the last four years, 1,000-plus deaths and a $4.7 billion budget blow-out. The Houston report made it quite clear what options were available to this government. This government had the option of putting in place all three streams of the Howard government solution, which stopped illegal boat arrivals in this country and stopped deaths among those arrivals by boat. Why not introduce the full suite of those measures? Why not, indeed, go the next step in relation to turning back the boats and temporary protection visas?

I will just go through some of the previous comments of the Prime Minister in relation to these issues. Julia Gillard, in a press conference on 3 December 2002, said:

The Navy has turned back four boats to Indonesia. They were in sea-worthy shape and arrived in Indonesia. It has made a very big difference to people-smuggling that that happened … And we think turning boats around that are seaworthy, that can make the return journey, and are in international waters, fits in with that.

That was the Prime Minister, back in December 2002. If you go further and look at what she has said since then, on 6 July 2010 all of a sudden she had changed her mind. She said:

I speak of the claim often made by opposition politicians that they will, and I quote: 'turn the boats back'. This needs to be seen for what it is. It's a shallow slogan. It's nonsense.

How does that equate to her comments back in December 2002? This is a Prime Minister and a government that will stop at nothing.

In the 45 seconds left available to me, I also want to speak about temporary protection visas and what the Prime Minister said about that, again on 3 December 2002:

The proposal in this document, Labor's policy, is that an unauthorised arrival who does have a genuine refugee claim would in the first instance get a short Temporary Protection Visa.

At the same conference she said:

We want a short first-instance Temporary Protection Visa.

This Prime Minister has taken up only one of the three legs of what she should be doing in relation to this issue. She has flip-flopped. She says one thing one day and she says another thing the next day. This Prime Minister cannot be trusted, this government cannot be trusted and this bill must go through immediately. In government we will address those two outstanding and extremely important matters.

Senator SIEWERT (Western Australia—Australian Greens Whip) (09:57): I start with the question that my colleague Senator Milne started with, which was: how long? How long are we going to be inflicting on desperate refugees detention on Nauru, in an environment that we know causes extreme mental stress? It is all very well to say, 'It's not going to be the same as it was before.' Australians should not be fooled; it will be. It will be the same as before. We are stripping out of the act the ability to offer protections and the necessity and requirement to offer support and protections. That is the very issue that we are talking about here, because we cannot guarantee those legally binding protections, so we are stripping those away. So it is going to be even worse than before, because we cannot enforce those protections. We know we cannot enforce those protections. So I go back to the question: how long? A decade? Longer? We know people have been in Indonesia, Malaysia and these other areas for that long, so how long do the government and the opposition think that we are going to be keeping people there?

My colleague Senator Hanson-Young demonstrated very, very clearly what impact it has already had on vulnerable refugees—people that are fleeing for their lives. Put yourself in their situation. They are being persecuted in their homeland. They are leaving their families and loved ones, often their wives, their children, their mothers, their brothers, their sisters, their fathers, their extended family—leaving them because they are being persecuted. Surveys showed that 96 per cent of Australians, when asked if they would do anything they could to protect themselves and their families, said that they would and, yes, they would flee.

And what happens when they flee when, as in a lot of cases, they have been tortured and subject to persecution? They get to a country that is saying: 'No; go. We don't want you here.' Because this is what this policy is about. Let's face it. This country is saying, 'We don't want those people here,' not that 'We understand your pain, we understand the torment in your homeland and we welcome you.' No. 'We'll lock you up even longer and punish you for wanting to have a better life and protect your family and your children. And we'll lock up your children at the same time, indefinitely, so they grow up in detention.' And then, in the future, will we recognise that, like we have this time, and have to compensate them? Yes, we will, of course.

Why not treat people fairly now like we have in the past? Why not accept that people are being damaged, that people are fleeing persecution, torture and distress in their own homelands? We see it every night on our television. Those are human beings that are being impacted. They are being bombed, tortured, persecuted for what they say. We have been having a debate in this country about freedom of speech; but, when we see people doing that in other lands and then being persecuted for it, we want to turn a blind eye, punish them even further, lock them up again and torture and persecute them even more. It will end up leading to the inevitable lifelong consequences of poor mental health.

And we know these things have lifelong consequences. In this country we are dealing with other people who have been mistreated by the system, and we know of their lifelong consequences and are still dealing with it decades down the track. That is what we are going to be doing with this proposal.

The Greens are deeply committed to caring for and looking after refugees and people in general. That is where we come from. We have been working hard to find an approach to a complex problem. No-one is denying that it is a complex problem, but people take desperate actions when they are fleeing for their lives, and we need to recognise that. We are supposed to be a caring and compassionate society, and what is caring and compassionate about locking people up again indefinitely and stripping away our requirements under our legislation to look after and offer protection to people? I ask again: what is caring and compassionate about it? The government cannot even answer how long we are going to be locking people up for, how long we are condemning people for. That is not caring and compassionate.

The sorts of things that we are stripping away by this act are our requirements to provide access for asylum seekers to effective procedures for assessing their need of protection, providing protection for asylum seekers pending determination of a refugee solution, providing protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement to another country and also making certain that countries meet certain human rights standards in providing that protection. Stripping those requirements out, we do not have to do that anymore. How does that make us a caring and compassionate country when we are amending those particular requirements? How does it make us a caring and compassionate country when we are amending the Migration Act and the requirements for guardianship of children, when we are allowing the transfer to countries and areas where we cannot guarantee protections for these desperate people? These are people we are talking about. We cannot guarantee those protections.

Weigh the fact that people have already taken their lives in their hands by fleeing their birth country. That is a huge commitment these people have made; and, instead of recognising that and recognising that people who are fleeing for their lives take desperate measures, looking at how we can address that in a much more compassionate and regional approach, we are saying: 'We don't want you here. We're going to do everything we can to stop you actually being in Australia. We're going to put you in an environment that we know damages you. We know you're already damaged; we're going to put you in that environment again. We're going to repeat the mistakes of history because we are incapable of learning it—because we are so desperate not to have you in our country that we'll change our laws to make it so we don't have to ensure that these countries are complying with human rights measures and law. We'll change it because we're so desperate not to.' What does that say about our country?

It is a nonsense to wrap this up with, 'Oh, we're trying to stop people getting in boats.' People will continue to get in boats because they are that desperate. They will continue to get in boats and are going to have even fewer protections. Why are we not going back, as my colleague Senator Sarah Hanson-Young has said, to the countries these people have made it to, processing them and facilitating their applications, not making them wait for years and years where they have no protections?

These are desperate people and, over the years, their children will grow from small children to young adults. They will spend their whole lives in this unstable, dangerous situation where they do not have access to education, to adequate housing and to other protections that Australians take for granted. For all their lives all these children will know is poverty, desperation and in many situations cruelty. They will not be afforded basic human rights. By passing this legislation, this country is saying, 'That's okay with us.'

We need to put resources into addressing refugee applications and increase our humanitarian intake immediately. But, instead of doing that, we are saying to these people: 'We will punish you people some more.' We will punish you for what? 'We will punish you for coming from a country that is subject to strife, where the same democratic freedoms that we take for granted are not available to you. We will punish you for having the initiative to want to protect your family and your life. We will punish you some more for having the capacity, the initiative and the desire to live your life with the freedoms that we all take for granted in a democratic country. We will punish you some more because you have not found the mythical queue; you are not sitting in it being subject to persecution while we process your application.' When these people do try to find a place where there may be a queue, we make them sit there for years and years. What is our response to that? It is: 'We are going to change our legislation so that we do not even have to make sure that you are subject to human rights laws where you are staying.' We have gone that low in this country that we think that is acceptable. We think it is acceptable that refugees are treated in the manner that we are seeing them being treated now.

We have to remember what the term 'refugees' means. We think it is acceptable that we strip away our requirements for human rights to apply. What we are saying to the refugees is: 'You shouldn't be trying to get out of those desperate situations; sit there and suck it up.' That is what we are saying. Let us see this for what it is. We are prepared for Australia to participate in a process whereby we sink to such a low level that we ignore our commitment to human rights laws and conventions.

Attacks were made on us yesterday because of the position we are taking on this legislation. Me thinks it is because the people who are making those attacks are too ashamed of the approach that their side has taken. They gave in. They did not try and push for what needs to be done. They caved in to ignoring our commitment to human rights conventions and laws. They have been shown up, even by the Houston report, on the Malaysia solution. Instead of looking at the position they took, they want to come out and attack us for trying to find real solutions, because the solutions that the government and the opposition are proposing will not work. They will lead to the further degradation of desperate human beings and to the further damaging of these human beings. The way you stop people getting into boats is by dealing with them at the place where they land. You make sure that they are not sitting in the so-called queues. There are no queues. They are sitting in desperate situations and not being supported. We need to increase our humanitarian intake. We need to increase resources in order to process people more quickly rather than condemning them to indefinite detention. This legislation is about indefinite detention. I certainly have not heard any answers to the questions that have been posed on how long we will be condemning people to live in these circumstances.

We will oppose this legislation. We will stand up for the rights of refugees. We will stand with all the refugee groups who are saying that this legislation is not the solution. We say: listen to the community; listen to the groups, to the organisations and to the people who have been working for years with refugees to find real solutions that are long term—not a short-term one where you get it out of the way for a little while and out of the headlines; where you say, 'It does not matter that we are condemning people to long-term detention and all that goes with that.' Implement proper solutions. Where is the commitment? Where is the government's announcement that it is immediately going to increase our intake? Do people know that they have an option: the hellhole where they are now or a hellhole somewhere else? Give people a future. Give people a bright future. Give children a bright future. The thing that we in Australia all think about for our children is that they have a bright future in a country where they have access to all of the services that we take for granted. That is what we want for the refugees and their children rather than them ending up in indefinite detention on Nauru or Manus Island or wherever else the government picks on next to shuffle off people so that they are out of sight.

This is not the way that a caring and compassionate country addresses the needs of people who are desperate, people who have been subject to persecution and torture. But what do we do about that? We prolong that as well. This is not good enough for Australia, and we say no to this legislation.

Senator JOYCE (Queensland—Leader of The Nationals in the Senate) (10:14): I think too often in this place we accuse people and deride people when we should really take the opportunity to laud the wisdom in the chamber and acknowledge people when they have found an epiphany and made that turnaround. Many people have said that the Labor Left would stand up on this issue, but I said to them, 'You don't know the Labor Left the way I know the Labor Left, and you've got nothing to worry about there.'

We have to give credit where credit is due. I thank the people of the Labor Left who have come to the epiphany that they now support the coalition's policy—Howard's policy—on illegal immigration. It is very strong of them to now understand that John Howard was correct. It is incredible when you hear of people, such as Anthony Albanese, who said that he liked to fight Tories, but they got it wrong. Actually, he was trying to say that he likes to tell stories. I thank the people of the Labor Left for their silence on this issue. I thank them for being complicit on this issue. I thank them for their philosophical change of heart, and the realisation that there is really nothing much there.

I have a strong view about strong border protection, but I know for a fact that they do not. It is a mockery in this place when there is a complete desertion of principles. It makes sense that that is what we would be saying. That has been our position but it has not been theirs. I start to wonder when all of these statements have been made—and there have been so many, from Doug Cameron and Julia Gillard—and they look like complete and utter hypocrites. People will start to wonder about where the plum of dignity is in this place when you have a complete and utter turnaround. I can understand how the Labor Right could have that position and maybe the Labor Centre, but how the Labor Left got to that position I do not know. It is peculiar in the extreme. It needs to be said. For the life of me, it is something that I cannot work out. What do we do? Do we thank Doug Cameron? Doug Cameron—

Senator RHIANNON (New South Wales) (10:33): I rise to support my colleagues Senator Christine Milne, Senator Sarah Hanson-Young and the other Greens who have spoken so clearly on this bill, the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. We had the opportunity here, if Labor had been willing to work with the Greens, to come up with solutions that would have saved lives and that would have allowed us to ensure that refugee rights were respected and that we honoured our international obligations. Instead, Labor have chosen to work with the coalition and are returning us to the John Howard Pacific solution. But, when you look at it closely, there are aspects of this bill that make it even worse than what we saw in those years. Island prisons will be established. Countries like Nauru and PNG will be left to administer a policy that will violate the refugee convention. That would be unacceptable and unlawful if it occurred in Australia. We would have to conclude that one of the objectives here is to keep the whole refugee issue away from scrutiny. That is one of the reasons this is occurring.

In this debate there have been many myths, deceptions and lies that have been perpetrated—the claim that the Pacific solution made more boats come, that asylum seekers threaten our border—but that is just propaganda to put pressure on people, to scare people and to try to win support for a policy that is so inhumane. What the coalition and Labor are uniting here to do is not about saving lives or about compassion; it is a political fix. It is a political fix that is incredibly dangerous for so many individuals.

Also, if we look towards the future, we can anticipate that there will be many more refugees in the world, due to economy-collapsing countries, wars, pressure on different populations and the climate change impact. We know that there could be millions of refugees in this world, and Australia has a clear responsibility here. We are known by many people—and I think we like to think of ourselves—not just as a country with a fair go but also as being generous of spirit and generous in a very real way. But this piece of legislation takes us in a totally different direction.

When we consider what we have seen from the parties that are now pushing this legislation we need to remember that there is a long history of abuse of refugees behind this. We violated international maritime law with the way the Tampa crisis was handled and we are violating our own obligations under UN treaties. That means that so many innocent people have been treated appallingly—damage that will, in many cases, last all their lives. And we are about to continue that terrible pattern of treating refugees. What is happening is that we are imprisoning people who desire what I believe most people in the world desire—I am sure it is a common factor among all of us here—and that is to wake up in the morning and know that your family is safe, your friends are safe and your livelihood is fairly secure. That is what these people are trying to secure.

The other night in this parliament I read out extensive quotes from a statement that has been released by the Commission for Justice and Peace of the Catholic Diocese of Jaffna in Sri Lanka. It painted a deeply troubling, ongoing situation for the Tamil community in that country. I urge people to look up that statement if they want to understand why so many Tamils are fleeing Sri Lanka, because it becomes quite clear. The civil war in that country may have ended in 2009 but many people are now calling what is occurring in that country ethnic cleansing, with Tamil communities losing their land and their livelihood. There is a description in that statement of fisherfolk who can no longer exercise their daily fishing plans because they are not allowed to fish in certain areas, Hindu shrines that have been taken over or destroyed, and the army and sections of the Sinhalese community taking over businesses, land and communities. This has much to do with why people from that land are fleeing to Australia.

If you look at the situation in Afghanistan, instability continues to be extreme. The war, the conflict and the violence are making life impossible for many people. We know that many Afghanis get to a point where they realise that the only hope for them and for their families and communities is to leave. And they have a right to come to this country and to seek asylum. This morning I went to a very moving event in this parliament for World Humanitarian Day, and part of it was to remember the many aid workers who have been killed in the line of duty. I had not realised how many had died. Senator Bob Carr was one of the speakers, and he spoke about Afghanistan and the violence against women. He said that 80 per cent of women in that country continue to experience violence. The sexual exploitation and the ruthlessness of the Taliban and some of their supporters is driving people out of that country—again, they have a right to come here, and we have a responsibility and a duty under international law to accept those people who come to our country. One day I do believe—I always try to be positive—that we will get back to that, but right now the legislation before us is more than deeply troubling; it is deeply anti-human. That parties could unite on this is quite extraordinary.

With respect to the expert panel's recommendations, we were pleased that they picked up on some of the work that Senator Sarah Hanson-Young has been putting forward on safer pathways and taking more refugees, and I acknowledge that many other groups have advocated those positions. But so many of the recommendations are a huge setback, repealing the few human rights protections included in the offshore processing legislation that went through in 2001. We should never do that, and we are about to see all the Labor and coalition MPs voting for that to happen.

Punishing asylum seekers who arrive by boat is a breach of the refugee convention, and that should not change. We need to remember the mental health problems that occurred among so many of the refugees who were put into detention centres on Nauru and Manus Island. The people who are voting for this legislation are ignoring the lessons that we learnt about what that form of detention does to people. We know that most of those people settled in this country. Australia now has the responsibility of looking after them and trying to address those mental health problems that should never have occurred, but they did occur because we were holding people indefinitely with limited freedom of movement. This is what has happened in those island prisons in the past and this is what we are about to inflict on people.

Then we come to the issue of the expert panel recommending that the removal of child asylum seekers from Australia be facilitated. You would have to say that one of the darkest chapters in this is how we have treated minors and children. I pay tribute to Chilout. They worked for years to get children out of detention and that became a great rallying call for organisations like Refugee Action Collective, Chilout and Labor for Refugees. Incredibly important work was done, and there were achievements, but now it looks like it is going to be wound back. My colleagues have asked the questions. We know that 220 asylum seekers have arrived just recently, and they are the first ones to be moved to these islands. How many children are there? What is going to happen to them? There are no answers. The lack of humanity is one of the aspects of this that I have found most troubling, and we are going to inflict that on children and put them into these island prisons. There is an unwillingness to come clean about what will happen and how it will be managed. They talk about transparency, openness and health facilities but none of that is made clear. And, in the end, none of it is an answer when you are locked up in an island prison indefinitely and your rights have been removed so completely.

Another aspect of the expert panel's recommendations that very much shocked me was that they left open the possibility that boats may be turned back in the future. We have heard the Leader of the Opposition, Mr Abbott, speak about this whole package, and this is where Labor has got its own tactics so wrong, let alone the approach to refugees. He said the boats will keep coming, which they will. People will want to escape the terrible situations in which they find themselves. Mr Abbott has said that the government will be to blame if the boats keep coming, even though what we have here is the coalition's Pacific solution. But there is the further aspect of leaving it open to turn back the boats. We have heard naval people say that that simply should not happen.

I want to put on the record the organisations that this week made such a clear appeal to the government that this legislation, the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, should not pass. These organisations have put so much effort into working on this issue, working with refugees to ensure their rights are recognised, helping them to settle in this country, often picking up the work that government should do: visiting the detention centres, giving the day-to-day support, often taking food to those people in those centres, trying to contact family—again, doing the work that the government should do. These organisations came together this week to call on the Prime Minister not to pass this legislation and to point out the very deep problems from the expert panel's recommendations. It is important that their work is acknowledged and recognised.

The organisations that wrote to the Prime Minister are: Amnesty International Australia; Asylum Seeker Resource Centre; Asylum Seekers Christmas Island; Asylum Seeker Welcome Centre; Bridge for Asylum Seekers Foundation; Balmain for Refugees; Brigidine Asylum Seekers Project; Sonia Caton, migration agent; CASE for Refugees; Centre for Human Rights Education, Curtin University; Chilout; Coalition for Asylum Seekers Refugees and Detainees; Darwin Asylum Seeker Support and Advocacy Network; the Rt. Hon. Malcolm Fraser AC, CH; Sandra Gifford, Professor of Anthropology and Refugee Studies; Human Rights Law Centre; Hotham Mission Asylum Seeker Project; International Detention Coalition; Ged Kearney, President, Australian Council of Trade Unions; Melbourne Catholic Migrant & Refugee Office; Professor William Maley AM FASSA; Dr Anne Pedersen, Associate Professor; Refugee Council of Australia; Refugee and Immigration Legal Service; the Assembly of the Uniting Church in Australia; Welcome to Australia; Dr Savitri Taylor, Associate Professor and Director of Research; Tamara Wood, Nettheim Doctoral Teaching Fellow and PhD candidate.

I congratulate their extensive work for refugees in this country and, as you have heard from other Greens speakers, we remain deeply committed to continuing the work for refugees and working with these organisations to ensure that we return to a recognition of refugee rights.

I mentioned at the start of my speech that so much of the debate has relied on lies and deception in many of the comments that have been made about asylum seekers. I want to deal with some of those myths: for example, that asylum seekers who arrive by boat are committing an illegal act. This is so deeply wrong. I believe the majority of the coalition members and Labor members who have spoken on this, like the Leader of the Opposition, must know that, but they continue with this deception. It is not illegal to seek asylum, regardless of how someone arrives in this country. The term, if you come by boat, is 'irregular maritime arrival'. That is the legal description but there is nothing illegal about it. The constant repetition of that lie relies on the old adage—if you repeat a lie long enough people will come to believe it. It is part of the propaganda that our borders are under threat and these people have no right to come to this country when they clearly have.

I also want to address some of the comments that, disappointingly, have been made by Senator Doug Cameron. He spoke on the Migration Legislation Amendment (The Bali Process) Bill 2012 back in June when we were coming to the end of that session. He spent quite a bit of his argument trying to blame the Greens for a solution not being found. Let us remember that what he was pushing for then was the Malaysia solution, which asked the Greens and all of us to break the law and our responsibilities under the refugee convention. The High Court made a very clear ruling on this and here we saw Senator Cameron take a very irresponsible position and try to blame the Greens for not achieving a solution.

Now we have Senator Cameron going for the Pacific solution. It is worth remembering, when he spoke in June on that bill, that he said he had argued his opposition to the Pacific solution continually over many years. Yes, he has, and for a lot of the period we were able to work with Senator Cameron and others in Labor on this issue. I acknowledge that, as part of the Labor caucus, members have to vote for legislation that their caucus has decided will come through. But we know that Labor members of parliament—senators and members of the House of Representatives—can speak against bills that their caucus has decided on and cannot be expelled for that. Over the years we have seen many courageous members do that when wrong legislation, like this, comes through. That is what Senator Cameron should have stuck with, rather than run the scam that it is all the Greens' fault because we would not vote for the Malaysian solution.

We will continue to work, and are always ready to work, with Labor people like Labor for Refugees. They are critical of what the Labor government is doing here and have recognised the importance of the Greens' position, including what we have advanced around safer pathways and regional assessment. We have seen in how Labor has conducted this debate in recent months that it has not been a compromise. It has not been a compromise to improve the situation for refugees. Again, they could have worked with my colleagues Senator Christine Milne and Senator Sarah Hanson-Young to come up with solutions that provided those pathways, that helped ensure that there were positive solutions. But they have not made refugees welcome. They have moved to a position where they have provided no option but for refugees to get onto boats. As I described in those situations in Sri Lanka and Afghanistan, when people are desperate to leave because of violence, and the abuse and the exploitation have got to that point, deterrence according to laws in Australia are meaningless; they are thinking about how they can escape their situation. The issue of saving lives is absolutely paramount for us. We could have achieved that by recognising the rights of refugees and our responsibilities under the convention, and we will continue to return to that work.

Senator JOHNSTON (Western Australia) (10:52): In the short time I have to speak today on this Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 I want to deal with an aspect that has been seldom referred to in this very emotive debate. There has been a lot of hand wringing and a lot of reference has been made to the rights of people who have voluntarily paid quite large sums of money and gone upon the high seas of their own free will and then, with information received from Australian supporters, telephoned various Customs, naval and other officials in Australia to come and get them.

The people I am referring to who have rights and who have been needlessly put in harm's way are, of course, those very fine members of the Australian Defence Force, particularly the Royal Australian Navy. They have been needlessly exposed to extreme danger and risk by this massive policy failure, probably the greatest policy failure in the history of our country. It is all very well for people to get up and talk about the rights of these refugees, these illegal entry people who are coming upon the high seas and expectant of first-class treatment, putting our Navy personnel at enormous risk, but those Navy personnel have lives to live. Those sailors have wives, husbands and children, and this policy has put them at enormous risk.

Twenty-two thousand people have arrived by sea since 2007. All of them, almost without exception, have been processed successfully and, may I say, compassionately and professionally by members of the Royal Australian Navy. What about the rights of those sailors, needlessly put in harm's way? Many of them undertake a nine-day turnaround from home base Darwin out to Christmas Island then a number of days patrolling, picking up these boats and then delivering them to Christmas Island or to whenever they can. Several members of the Armidale class Force Element Group regularly work through their eight-week on/four-week off cycle on the high seas—many of them work 12 weeks straight—doing nothing more or less than operating a taxi service for this massive policy meltdown and failure. What about the rights of those people?

I read an article by Chris Kenny in the Australian in July this year and I put on the record some of the things that he said. Of course, this is something that senators opposite do not want to hear because they are hideously embarrassed by this massive backflip, this classic policy failure that has brought derision and scorn down upon all of them. The journalist said:

For these people at the front line of the border protection dilemma, the day-to-day practicalities are more important than the parlour games of the political debate. The crews typically rotate for eight weeks onboard then four weeks onshore, although the pressures are so high now that five sailors recently had to sail through their rostered onshore period.

He further said:

They observe that many asylum-seekers appear well clothed and organised. Apparently a sailor recently was admonished by an asylum-seeker who wanted more care taken with his bag because it contained a laptop. Another sailor lamented; 'Last I checked, I was not a baggage handler at the airport, but a sailor in the Royal Australian Navy.'

I share some empathy and sympathy with that sailor and with all of these sailors who have been reduced to nothing more or less than taxi drivers. What about their rights? It is all very well to be talking about the rights of people who pay large sums of money—what about the rights of sailors?

I now turn to the coronial inquest into the death of five Afghanis on board a boat in April 2009. Mr Greg Cavanagh, the coroner in Darwin, a very learned and respected jurist, delivered his decision on those deaths when a boat, SIEV36, was blown up in April 2009. I quote some of the aspects of what that learned coroner found. In paragraph 11 on page 5 of his report, he said:

By way of overview only and having regard to all the evidence I have concluded that the explosion was caused when a passenger or passengers deliberately ignited petrol which had collected in the bilge area below the deck of SIEV 36. Unleaded petrol in a container housed in a hatch near the bow of the boat had been deliberately spilt into the bilge. The ignition of the petrol resulted in almost instantaneous ignition of petrol vapour emanating from the spill.

He goes on to describe the magnitude of a very serious explosion, which blew nine Royal Australian Navy personnel into the water. It is not enough to come here on one of these boats, having paid for the privilege, but when they get here they want to blow the boat up with Australian people on board. The coroner made distinct findings as to the cause of that explosion—and I will deal with that in a little while.

Let us talk about what Navy did and how they responded. On page 38 of the coronial inquest report the coroner says in paragraph 89:

When the explosion occurred, many of the passengers and navy personnel were thrown into the water. Again the video depicts what occurred. Keogh—

a Navy man—

can be seen on the starboard side of the boat trying to direct passengers to leave the boat. He was very brave as were many others that day. He was unable to save one of the passengers who drowned in front of him. Standing Orders required that he remain on the boat and not enter the water unless directed to do so. He tried to help and took hold the seat of the wheel house which he intended to throw to the drowning man but it melted in his hand. Thereafter he remained on the burning vessel until he was extracted, despite the obvious danger of further explosions and him being injured himself.

The coroner goes on to set out more acts of extreme heroism and bravery. In paragraph 91, on page 39, he says:

In the process of the rescue, Corporal Jager was in danger because her life vest did not inflate and she believed she was drowning. Medbury and Boorman, who were crewing the RHIB that was portside of the SIEV at the time of the explosion, rescued her. In the process of doing so, they had great difficulty. She was clearly struggling, they were finding it difficult to get her on board. Shortly before they succeeded, a passenger was hanging on to her and preventing the rescue. Medbury either kicked the RHIB or kicked towards the passenger. Corporal Jager says that the passenger was kicked in the head. However, she conceded it happened in a split second and she could be mistaken. Medbury agreed that he was kicking towards the passenger to stop him from preventing Jager's rescue. I do not need to make any specific findings about this incident. The incident must be seen in the context of what was happening. There had been a violent explosion, people were screaming in the water. Corporal Jager was struggling and have drowned but for prompt action, the passenger concerned was in fact rescued anyway.

The coroner goes on at paragraph 92:

After high alert had been sounded, HMAS Albany returned to the scene. Albany's two RHIBs were launched and assisted with the rescue of ADF and passengers. The rescue was efficient, effective and in my opinion saved lives. There were many heroic acts that morning in the process of saving the passengers and crew of SIEV 36 and also in their treatment thereafter. For example, Corporal Jager, notwithstanding what she had been through, attended to the needs of several injured people with the Medical Officer Darby with seemingly inexhaustible energy and precision. Many passengers were saved because of their efforts. It can be said that but for the combined efforts of the Australian Defence Force, Border Protection Command, Australian Maritime Safety Authority (Rescue Co-ordination Centre), Off Shore Gas Installation Front Puffin, Truscott and medical teams from around Australia, many more lives would have certainly been lost.

The coroner goes on:

I have already commented on the great efforts, professionalism and bravery of ADF members collectively in rescuing survivors from the SIEV 36. In my view, the individual efforts of ADF members Jager, Keogh and Faunt are worthy of specific mention; 1) I have already mentioned Jager in the previous paragraph; after being on the boat for some time during the night, she was blown off the back of the boat into the water by the explosion, she was in a state of shock and her life vest did not inflate, she was close to drowning with other survivors attempting to swim over her in order to be rescued, she was terrified. Yet, despite this trauma, after her rescue with her specialist medical training she attended to the survivors for the next 10 hours …

And the coroner goes on:

2) I have already mentioned the efforts of Keogh in paragraph 89 … 3) Faunt had only been on the SIEV 36 for a short time on the morning of the explosion, he realised the dangers of an explosion, he called "high alert", he attempted to appropriately deal with the developing situation, he was standing on top of the roof of the boat's coach house, the explosion blew him from the roof into the air and into the water, despite the shock and confusion engendered by this trauma, after rescue he remained on duty for several hours supervising the men under his command in relation to the rescue.

That is what this failed policy has delivered to the Royal Australian Navy. It is a disgrace. And they sit over there with their smug looks and think: 'Oh, yes, this is a political game. Our ideology will prevent us from adopting the Howard solution.' Australian naval lives were put at risk wilfully by this negligent and derelict government. That is what has happened here. And I, for one, will not allow it to go without saying that, but for the fact of the professionalism and the dedication of these Navy people who have had to endure this policy fiasco, there would be many, many more deaths.

How do we measure the level of incompetence and callous disregard of this government in the face of a boat in April 2009 being wilfully blown up, with nine naval personnel on it—how was that not enough to convince this crazy, neglectful, incompetent government that their policies had to change? Four years later here we are, dragged, kicking and screaming, by Angus Houston. That is what this has come to. The events of April 2009 should have woken them up, as any normal person would have been woken up, to the fact that this policy of compassion, the removal of the Pacific solution, was going to lead to disaster, to death and end in tears—and it has. But, no, they know better.

This Prime Minister will not do or say anything that acknowledges the successful governance for 11 years by John Howard. That is the problem; that is what sticks in their craw. And don't we know they are paying for it today? They are an absolute laughing stock. Their incompetent governance skills are probably the world's worst in a Western country. Everything they have touched has turned to mud because they do not know what they are doing. They think about what the spin doctors tell them first and foremost, without concentrating on the outcome and the practical application of policy.

So what did they do with all those people who deliberately blew up the boat? The coroner said that most of them lied, so what did they do with them? They gave them visas. They welcomed them into Australia. That is the level of incompetence we have dealt with from this government. It is a measure of their extreme and callous disregard, neglect and political spin-doctoring that they welcomed into this country those criminals who tried to kill nine Australian sailors.

In closing—because I am very annoyed about what we have had to endure for the last four years, as any reasonable, normal person would be—I want to say to the men and women of the patrol boat FEG out of Darwin a huge thank you for the loyal professionalism they have continued to display year after year in dealing with this classic and massive fiasco of policy. Their dedication to duty has been an example to all of us and on this side of the chamber we all want to congratulate them and say thank you for their work. They are the people whose rights we should have been thinking about.

Senator WRIGHT (South Australia) (11:08): I rise today to speak on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. I am deeply saddened that here we are yet again debating legislation which is designed to punish and demonise people merely because they arrive on our shores by boat instead of arriving by plane or waiting patiently in mythical queues in intolerable living conditions where they have no hope or a sense of the future.

The last time I spoke about this issue in this place, just six weeks ago in relation to the Bali process bill, I described the experience of just one refugee I recently met in Adelaide. In desperation he came to Australia after waiting for resettlement in the Philippines. He waited for 20 years. There was no queue. He was waiting in limbo, a no-man's-land where he could not work, he could not form relationships and he had no sense of a future, and he chose ultimately to come to Australia.

It was with deep shame that I witnessed the imposition of mandatory detention on refugees, commenced by the Keating government in the 1990s, and then the more punitive regimes inflicted on refugees and asylum seekers by the Howard government into this century. Like many other Australians, I raised my voice and took what action I could and then I celebrated the lifting of temporary protection visas and the closing of Nauru. We thought that the worst excesses of these nasty exploitative policies were finally over. Certainly we knew that there was a legacy of people who had harmed and hanged themselves, and there are many survivors from that time who went on to be granted refugee status and who live in Australia today. But they still bear the mental scars of long periods in indefinite detention—our fellow Australians. At least, we thought, the bad old days were over. Now, here we are again in 2012 being urged to support this legislation because it represents a 'compromise' in order to find a 'solution' to a wicked dilemma.

It is true that there is a dilemma. People around the world will flee situations of terror, violence, torture and threat. And they will try to reach a safer place like Australia. And their journeys will be hazardous. But it is not surprising; it is exactly what many of us would do in the same situation if we were faced with the same horrors, if that was what was necessary for us to save our partners or our children or ourselves.

The big lie is that there is a simple solution to this dilemma—like the 'Pacific solution' or the 'Malaysian solution'. Pretending that there is a simple solution is misleading and cynical, because it causes false expectations in the Australian public and then leads to pressure for drastic action like what we have before us in this bill. It will appear that something decisive and effective is happening even if the consequences are ineffectual, harmful and cruel. Let us not be misled here. This is a political solution but it will not save lives or reduce suffering.

On Monday at the cross-party parliamentary meeting on asylum seekers, I had the chance to hear from some of the most experienced and compassionate advocates for refugees in Australia. These were people who have considered this issue over long periods of time and their overwhelming message was that this is a complex and intractable challenge and there is no simple solution. There are just ways to manage it in the most humane way possible while maintaining the values that motivated us in Australia in 1954 to sign up to a convention to assist some of the most vulnerable people on the planet.

Now we come to this idea of a 'compromise'. What is it, I wonder, that we are compromising on? Compromising is good we are told: agreeing to something we do not want for some greater result. But what if it won't be effective and will cause untold harm and suffering? Where is the virtue and the sense in that? To support this legislation we must compromise on obligations that Australia voluntarily assumed when we signed the United Nations convention on refugees. They were very clear obligations to respect the rights of people to seek asylum under certain conditions and to ensure that they are treated humanely and compassionately when they do so. Here we are being asked to compromise so that we can treat some people so harshly that it will send a message of punishment and deterrence to others contemplating making the journey. We will have to treat them so harshly that it compares with the situations they are fleeing from—persecution by the Taliban, for instance, or years of statelessness in limbo with no sense of purpose and no sense of hope.

Desperate people will do what is necessary. The best deterrent to making a risky boat journey is the belief that there is another viable option, an alternative that will result in a better life. Refugees in Indonesia have indicated that they are willing to wait, sometimes two or three years, if they know they have a good chance of being resettled—if they have some hope.

The Australian Greens are serious about protecting refugees, saving lives and encouraging people not to risk their lives on boats because they have a better option—because they have a real chance of a future. The Greens have proposed a series of measures designed to give people hope and to work with our neighbours so that we have the credibility and good faith in our region to develop a long-term, truly regional approach to what we know is a regional phenomenon. These measures would include increasing Australia's humanitarian intake to 25,000 people a year and urgently resettling at least 1,000 people from Indonesia and at least 4,000 from Malaysia. We would uncouple the link between the number of onshore refugees and the number of offshore refugees who are eligible for humanitarian visas—something that the refugee advocate community is constantly saying is necessary.

We would significantly boost the number of family reunion places within the humanitarian program. We would review carrier sanctions and visa impediments for people seeking protection by air, to overcome what is often a racist discrepancy when it comes to the status of people who arrive by air. We would increase funding to the UNHCR in Indonesia so that they have a stronger capacity to assess asylum seeker applications and vastly speed up the process. We would develop a new regional plan of action with our neighbours on a respectful basis—not on a basis where we are essentially being hypocritical, pointing the finger at them for their human rights abuses and breaches and yet not being prepared to abide by the convention that we signed up to in good faith in 1954. Finally, if we were serious about saving lives at sea we would codify our obligations to protect life at sea when people are on those boats.

I am very pleased that some of these Australian Greens measures have been taken up by the expert panel but the fact remains that their recommendations also contain some of the worst aspects of punitive, Howard-era policies, designed to deter people from coming to Australia—wherever else they may go, but not to Australia—dressed up as compassion.

I cannot support this legislation. It will not prevent people from boarding boats and it will not save lives. Further, it will remove the few human rights included in the offshore processing legislation passed in 2001. It will open the way for any country to be designated for offshore processing, regardless of whether it is a party to the refugee convention or not. It will allow the displacement of people to hellholes like Nauru, out of sight, away from scrutiny by the public and by the media, and away from independent legal and mental health assistance. It will allow the transfer of child asylum seekers from Australia and the transfer of unaccompanied minors, who will not necessarily have a guardian to act in their best interests—in breach of the Convention on the Rights of the Child. It will allow banishment to Nauru, or Manus Island or, essentially, anywhere but here.

In my first speech in parliament a year ago I noted how over time our Australian map has been redrawn to pretend that some parts of our country are not Australian territory at all—Christmas Island, for instance. The legal term for this process is 'excision'. This noxious policy was introduced by John Howard in 2001, and it requires us effectively to renounce part of our territory so that we can disavow our responsibility for those who come to us seeking asylum. As a lawyer I always found this legal fiction, designed purely to worm out of our international obligations, shameful. What this bill will require is that the entire Australian land mass be excised to enable the refugee arriving by boat anywhere on our continent to be transferred elsewhere for processing.

What does this say about us? Does this renunciation of our territory chillingly reflect the gradual erosion of core Australian values of generosity and compassion?

One of the most concerning aspects of this legislation is the possibility of unlimited detention. Under John Howard's so-called Pacific Solution people spent up to four years in detention in Nauru, but under the new Pacific Solution this could be even longer because there is no time limit on how long people will be in these detention centres. We know that indefinite detention deprives people of hope, their sense of autonomy and their sense of a future. And we know that it leads to mental health problems on a massive scale. We know what happened to the people on Nauru. The mental health experts who visited the island confirmed that asylum seekers on Nauru had a history of suicide attempts and incidents of self-harm. The centre psychiatrist was finding it difficult to manage the psychotic features that he was seeing among the residents there and their suicidal thoughts.

Many, many mental health experts have condemned the effects of mandatory detention both in the past and in response to this proposed legislation, especially the effects of indefinite detention on the mental health of human beings. Respected psychiatrist Professor Pat McGorry has said:

… we know that after about six and certainly 12 months in detention, mental health will deteriorate, and there's very good evidence for that.

We also know that people who have been through previous detention and torture and severe trauma of other kinds—

which many of these asylum seekers have experienced—

… are especially vulnerable to these effects, and particularly children and adolescents.

What we also know is that over the last 15 years, 90 per cent of the people in immigration detention were ultimately found to be genuine refugees and became Australian citizens. And yet before we do that we leave them in limbo with all sense of hope destroyed, often separated from their family, their friends and their community and with no certainty about the future.

This is the ultimate folly. When they finally settle in Australia we are then faced with people with ongoing mental health problems. Professor Louise Newman, on the radio this morning, was saying that in 2012 she is still treating people who are suffering the mental health effects of detention on Nauru. It is almost as if this process is designed to destroy the very resilience, courage and initiative that people who have the wherewithal to flee from persecution to find a better future bring with them. They have such a capacity to make good, grateful, strong and resilient citizens in Australia. It is as if our processes and policies were designed to destroy that very inherent core. That is why the Greens have an amendment that, if detention is to occur, we will limit the length of detention to 12 months.

Finally, I would like to finish by reminding people, in case people have forgotten, about the legacy of offshore, indefinite detention. Let us briefly revisit Nauru. There is an article by the Age journalist Michael Gordon that he wrote back in 2005, when he was the first journalist into the Nauru detention centre after three years of trying—and doesn't that say something about a government's willingness and ability to prevent scrutiny and accountability by having people locked away so far from our shores and not allowing journalistic access? After three years of trying, he was able to get into the Nauru detention centre. His article has been republished this week in the online journal Inside Story. It is very, very moving and graphic and reminds us of the debilitating effects of long-term detention in an isolated place on the morale, health and wellbeing of fellow human beings.

There is one particular person that Michael Gordon refers to, a young man called Ali Rezaee. He began his life in offshore detention at the age of 17—still a kid. He told Michael Gordon that when he was consumed by despair he would go to a corner of the camp and cry at the sky. He said:

… where are my family? Where are they now? What are they feeling now? They might think that I am dead. They think that they have lost me.

He wrote to help cope with what he was going through, and he wrote in an email to a woman called Halinka Rubin, a Polish-born Holocaust survivor in Melbourne who was also a tireless supporter of those on Nauru and in mainland detention. One of his emails included these lines:

I am a boy, who just sees dark and dark, and a minute is passing like one hour, a month is passing like a year. And have no sleep without tablet, no medicine available for reducing the pain, except rolling tear on my cheek.

I am a boy who in the mid of night, most of the time lonely sitting in the corner side the fence, looking at blue sky, at stars, weeping tears, during that time none is moving around.

If this bill is passed, we will condemn many like Ali to wretchedness, despair and, in some cases, mental illness and death. Instead, this parliament can choose to offer refugees safer pathways by taking a true leadership role in our region and genuine responsibility for our share of some of the world's most vulnerable people.

Senator RYAN (Victoria) (11:25): I will not repeat what my colleagues have stated before me on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, other than to say that I think Senator Johnston's contribution, regarding the burden of the failed policies of this government on our Defence Force personnel, is particularly worth noting. Our Defence Force personnel are a long way from home, in very dangerous situations, performing their duty without taxpayer-funded lobby groups or bumper stickers advertising the trauma they go through. The consequences of the policy failures of this government and the policies of the Greens that this government adopted are very personal for those people, and I think people should seriously take note of the trauma that Senator Johnston outlined. They do not have the same voice of organised, taxpayer-funded lobbyists or lawyers. They do not have press conferences on the steps of Parliament House to put that case, but it is a very, very important element that we should note for the people who serve in our name, defending our national security.

Senator Wright before me talked about the 'big lie'. The big lie is this: that the policies of the Greens that the Labor Party adopted and implemented would have no consequences. The big lie is that weakening the policies of the previous government would not encourage more people to take this dangerous journey to Australia. The big lie was that there is no such thing as pull factors. We have seen over the last four years the consequences of that big lie, and the consequences are enormous. They are people who have been denied the opportunity to come to Australia. They are the people who have lost their lives—those we know about and those we do not. They are the personal stories of people serving in our Defence Force that Senator Johnston has outlined. That is the big lie: that there would be no consequence from weakening the policies that worked. This crisis in policy is entirely a creation of this government, and it is important that the government be held accountable for this failure. The next time we are asked to rely upon the judgement or the good word of the Prime Minister or a member of this government, we can judge people by their track record.

I was not in this parliament before July 2008, but I have been a Liberal Party activist for a long time, and I remember the vilification of people in the then Howard government undertaken by those opposite and their second cousins or first cousins in the Green corner of this place—not just accusing their policies of being cruel but going to their very motivations and alleging they intended to be cruel. I have been at polling booths with representatives of the Labor Party and the Greens where they will insult, attack and vilify those doing nothing but supporting the policies of the Howard government, because it is never enough for the Greens or the Labor Party to address someone's policy; one must allege they are somehow motivated by the darker angels of human nature. I want to know where the apology is—in particular to the member for Berowra, because he was subjected to some of the most intense vilification and personal attacks that any minister in the Commonwealth has ever been subjected to, and it was by those opposite and their Green friends. Part of the reason this was undertaken was for political purposes, to try to generate a political advantage. Rather than just criticise the policy, in football parlance you played the man rather than the ball, and you threw a lot of high elbows. What the member for Berowra, the then minister for immigration, went through was nothing short of a disgrace, and that should be noted. I noticed on Monday that there was not even an acknowledgement from this Prime Minister that they had got it wrong. There was not even an acknowledgement—a courtesy—that the previous government's policies worked. I cannot help but think that one of the reasons this government has changed policies is that it is so obvious that the previous government's policies worked.

It is true this government has backflipped. There is nothing wrong with admitting one is wrong. But one needs to admit it to have the credibility to argue for the U-turn in policy. On Monday the Prime Minister and Minister for Immigration and Citizenship used a constant emphasis on the words 'expert' and 'compromise'. The hubris of this government is not limited by some sort of honest commitment to apology even for the personal attacks made, but that constant reference to expert and compromise stood out. I do not think compromise on something to do with our national security is something to be proud of. Our national security is something that we should not be compromising upon. Compromise for the sake of it is not something that governments should strive for. Admit that the previous policies worked and admit that the policies need to be reinstituted, but this government has the hubris never to do that. Its relationship with honesty and the truth is very limited.

We on this side know that history tells us that temporary protection visas are a critical element of managing our asylum seeker policy and our border security. I hope that this policy works, but I fear that it will not because that element in particular is lacking. I share the scepticism Greg Sheridan outlined in today's Australian that the endless process of a regional solution will not actually deliver an outcome. I note that the constant references to a regional solution could as much be an illusion for political activity as they are going to achieve a genuine outcome, because it has been going for a very long time and I fail to see the interest of some of those nations in cooperating purely for Australian domestic purposes.

I am concerned at proposals to raise the quota without a full consideration of what that means. I have the privilege of working in some areas of Melbourne where there are a great number of people who have been granted asylum by this country. I met a gentleman from Kenya last week who had left home in South Sudan at nine years old and spent years before he went to another part of Africa and then came to Australia. His story was sad but at the same time uplifting because he knew he had been given an opportunity in our nation. One of his concerns was that the services we are offering, because of the strain on our policies because of the failures of this government, are not where they were years ago, that people arriving now are not getting the same support as he did when he arrived under the previous government. I am concerned that raising the quota without a full analysis of what we are doing to support those who are being resettled here will not do justice to us or to the services we wish to provide those people with.

Many of my colleagues wish to speak, so I will not take up much of the Senate's time other than to say that we hope this policy works. I fear that it may not, but it is true to say that the policies of the previous government worked and we know that we need to stop this trade in people coming to our borders.

Senator WATERS (Queensland) (11:33): It is with a heavy heart that I rise to speak on the migration bill today. In my short time here this parliament has achieved some great things. Today would have to be the lowest day, and it deeply saddens me to be standing here as this parliament goes back to John Howard's evil, cruel and ineffective refugee laws.

The Greens had an alternate solution—one that would work, one that was legal and one that had humanity at its heart. The government had a choice. It could have worked with the Greens to implement the ways to discourage asylum seekers from getting onto risky, leaky boats by giving them other, safer options. But they made a choice to bargain with the coalition and to bring back the Pacific Solution. And, while they have said they will adopt the aspects of the Greens' plan which the Houston report endorsed, where is the progress on those fronts? We just have this unseemly haste to force people out of sight, out of mind, onto Nauru and Manus Island to indefinite detention.

I heard today and yesterday some members of the opposition call asylum seekers 'illegal arrivals', and obviously we hear that quite a bit. It really aggravates me. It is not illegal to seek asylum. These desperate people are completely within their legal rights to seek our help. It is Australia that is shirking our obligations to deal with them fairly and to uphold their human rights.

There has also been a lot of talk about push and pull factors and a solution to this intractable problem. Sadly, there is no solution. We will always have asylum seekers. Wherever there is war, conflict or persecution on religious grounds, people will be moved to flee their homes, their countries and everything they know to seek safety for themselves and their families. Deterrence will not work unless the circumstances they are met with are just as heinous, destructive and life threatening as the circumstances they are fleeing from. Australia would have to be as inhumane as the Taliban for asylum seekers to be deterred from seeking a better and safer life here.

I want to quote from the submission by the University of New South Wales Gilbert + Tobin Centre for Public Law to the expert panel:

All that deterrence strategies can achieve is to divert asylum seekers into equally irregular, equally risky routes to other countries in which protection may be found or to trap them in places where they receive little or no protection. We are unlikely through such means to spare asylum seekers from unnecessary suffering and premature death. We will simply spare ourselves from having to witness that suffering and death.

We saw with the last time we had the spuriously named Pacific Solution based on the tenet of deterrence that it simply did not work. Boats still sank after we opened Nauru. Three hundred and fifty-three women and children died on the SIEV X after we opened Nauru. Desperate people will keep seeking our help because they feel they have no other option to save the lives of their families and to give their children a chance at a better life.

The Refugee Council of Australia share this view. They say in their submission to the expert panel that 'a resumption of removing asylum seekers to Nauru would be virtually valueless as a deterrent'. In their submission to the Senate committee, the Refugee Council elaborate on this. They say:

Under the offshore processing arrangements in place under the Pacific Solution, access to legal advice was extremely limited and the credibility of refugee status determination procedures was highly questionable. Many asylum seekers whose claims for protection were rejected under offshore status determination processes experienced persecution or serious threats to their safety and security after returning to their countries of origin. As many as 20 of them are believed to have been killed … Asylum seekers affected by the Pacific Solution were detained in remote facilities for often lengthy periods (up to six years in some cases), to the serious detriment of their health, particularly mental health, and general wellbeing. Throughout the life of the Pacific Solution, there were multiple incidents of self-harm, 45 detainees engaged in a serious and debilitating hunger strike and dozens suffered from depression or experienced psychotic episodes.

So clearly there were lasting mental health effects that will stay with those people forever. Yet they have no other option. Conditions in transit countries are not safe, and because Australia takes so few people per year from Indonesia and Malaysia it can take years and years for them to be processed and resettled. People live in those processing facilities in limbo. They cannot work, they cannot go to school and they have no entitlement to health care. They are in absolute limbo and sometimes with no prospect of being resettled for 20 years. Of course they get on a leaky boat to try and speed that up. Who could face the mental anguish of that uncertainty and that stultifying, oppressive situation of no work, no home, no school and no hope. So of course they risk their very lives for a chance at certainty, freedom and a new life.

The way we get them not to take that chance on a leaky, dangerous boat journey is to give them another option; it is to give them some hope that they will be processed and resettled more quickly. They do not have to risk their lives on a boat because they do not have to face years and years of debilitating, demoralising, soul destroying limbo. It is to give them a safer pathway.

Australia can afford to lift its refugee intake. We take 1.3 per cent of the world's refugees. It is a miniscule amount. We can do better. The Greens propose increasing our humanitarian intake to 25,000, including 5,000 immediately from Malaysia and Indonesia to ease that inhumane backlog. We need to better resource and have more UNHCR assessment processors so that there are not just two officers as there are in Indonesia assessing asylum applications. We need to resettle more people directly, work with our regional neighbors to care for asylum seekers better and ensure they have legal safeguards protecting their human rights in Malaysia and Indonesia so that people are safe while they wait. This approach has worked in the past, under the Fraser government. I had the pleasure of meeting Mr Fraser earlier this morning and congratulating him on having a heart and some courage.

The Greens welcome those aspects of the Houston report that endorse our approach to increase our intake and better resource UNHCR processing facilities. But why have we seen no movement to implement those aspects? It does not need legislation. Why this unseemly rush, instead, to legislate the Pacific solution before even adopting those other more humane aspects to the response? Now we have indefinite, mandatory detention. The Greens amendment to limit detention in Nauru, Manus Island and Malaysia, if it ever gets up, to 12 months was voted down by both big parties in the House. They have another opportunity to change their minds on that today.

The Greens position is backed by the experts. Amnesty, the Refugee Council and former PM Malcolm Fraser have all written to the PM expressing their concerns about this bill. I want to read into the public record those concerns:

Dear Prime Minister

We are united in our opposition to the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill currently before Parliament. We are also concerned that other legislative changes required to implement the recommendations of the Expert Panel on Asylum Seekers will, if passed, see the Australian Parliament remove legislative safeguards for asylum seekers, reverse previous measures implemented to protect vulnerable people and breach Australia’s international obligations. We oppose any form of offshore processing and policies centred on deterrence and punishing people based on their mode of arrival.

They go on:

We are particularly concerned that implementation of the Expert Panel’s recommendations will:

Repeal the few human rights protections included in the offshore processing legislation passed in 2001.

See any country designated for offshore processing, regardless of whether it is a party to the Refugee Convention.

Punish asylum seekers who arrive by boat in breach of the Refugee Convention.

Implement a return to assessing asylum applications in Nauru and Manus Island, ignoring past lessons regarding the mental health impacts of holding people indefinitely with limited freedom of movement.

Facilitate the removal of child asylum seekers from Australia.

Facilitate the transfer of unaccompanied minors who will have no guardian to act in their best interests, in breach of the Convention on the Rights of the Child.

Prevent IMAs (whatever their age) from proposing family members for the Special Humanitarian Program (SHP), creating greater incentive for families who want to stay together to travel by boat to Australia.

Leave open the possibility that boats may be turned back in the future, contravening the Convention for the Safety of Life at Sea.

The Greens share those concerns. I have already outlined what we believe is a much more humane and effective solution.

I now want to take the opportunity to put on record some of the perspectives of an organisation from my home state of Queensland that does some really wonderful and inspirational work with refugees. I want to share their perspectives in this debate as, so far, sadly, there has been far too much demonisation of people who simply want our help. The debate seems to have completely missed this key point—the richness and wealth that comes with being a caring, compassionate society that acts in accordance with international law and that accepts people who come to us when fleeing persecution. I think a greater acknowledgment of this by both sides of politics throughout this ugly debate may have helped us come to a more compassionate outcome than the abomination that is currently before us.

The Multicultural Development Association, MDA, is Queensland's largest settlement agency for migrants and refugees. It was established in May 1998 and it does truly fabulous work in promoting multiculturalism and empowering people from culturally and linguistically diverse backgrounds. MDA settles approximately 1,100 newly arrived refugees annually and it currently works with 3,500 migrants and refugees. Most of MDA's clients are from Africa, Asia and the Middle East.

In their 2011 submission to the Inquiry into Multiculturalism in Australia, MDA shared some great insights into the valuable contributions that migrants and refugees have made in their new communities. I want to share some of these. MDA states:

In MDA's experience many refugees and migrants are motivated to integrate into the Australian community, to adopt and share Australian values and beliefs and are eager to work hard to contribute to and 'give back' to their new country. Many of the clients and communities MDA works with also dedicate considerable time to volunteer activities within their community while maintaining jobs and undertaking study in order to create better lives for their families. Indeed, it is estimated that nearly 30% of people in Australia who were born overseas participate in formal volunteering—the number of informal volunteers is unable to be measured.

…   …   …

During the 2011 Queensland Floods the strength of Australia’s multiculturalism was demonstrated when, during the flood clean up MDA was inundated with offers from Brisbane refugee communities who were eager to help with the clean up, despite feeling traumatised by the flood event. Over a period of four days, MDA had approximately 120 volunteers from nine refugee communities contribute approximately 780 hours to the clean up process. Refugee communities assisted with all tasks from sweeping out muddy houses to carrying furniture and providing food in their local communities. One local community even held a BBQ sausage sizzle in a nearby park and provided much needed food and drink to over 200 weary local volunteers. For some refugees, being able to help others in the community was a practical way for them to show their support for their local community.

I continue the quote:

MDA received significant positive feedback from members of the community about the efforts of refugee communities. One elderly couple whose business premises was severely impacted by the floods told MDA workers that having scores of refugees helping them clean their premises and being able to talk to them about their experiences had completely changed their perspective and opinions about refugees.

The MDA shared one particular story that I think really demonstrates how much richer our communities are for being welcoming and doing the right, caring thing by people who seek asylum on our shores. I quote:

On Wednesday 19 January 2011, the streets surrounding Milpera State High School's flooded campus at Chelmer, Brisbane were inundated with construction workers, residents and a significant army presence to control the traffic and surrounding areas. Over 20 Rohingyan men (from Burma) arrived to volunteer in the clean-up efforts to prepare the site for the massive construction to take place the following week. Many of the men and youth were at different stages of resettlement and each carried with them different stories from their refugee experience, all touched in some way by the heavy military presence from their time in Burma and in refugee camps in Bangladesh. While there was some trepidation about coming into contact with military personnel, it soon dissipated when our community members were greeted with warm smiles and friendly handshakes from the men and women in uniform. The community worked hard all day, barely stopping for breaks, reporting to their community development worker that they would stay all day if they were needed as they were working by choice as opposed to the forced slave labour they endured back in their home country.

The MDA also brought to the fore the significant economic contribution that our migrant and refugee communities provide to Australia by citing statements by former Acting Race Discrimination Commissioner Tom Calma, who said:

… economically, multiculturalism has also brought significant benefits through creating global economic links and relationships; developing export markets; enhancing creativity and innovation through access to a range of cultural perspectives and diverse skills; introducing new goods and services; and increasing economic growth. Other considerable economic contributions by refugees and migrants are outward remittances to support families and communities in developing countries, which amounted to over US$2.815 billion in 2006 alone, and the establishment of businesses and entrepreneurial initiatives in Australia.

I thank the Multicultural Development Association for helping refugees new to Australia, and to my state of Queensland, feel welcome and at home. Clearly their work is invaluable.

In conclusion, the Greens will not be supporting this bill. In this place we have each searched our conscience. Those of us who are parents are particularly moved by the plight of refugee children. But we simply cannot support a bill that will not work. It will not save people's lives; it will relegate them to horror houses, years in limbo and a lifetime of mental anguish. The thought of children growing up in detention is abhorrent to me, as it should be to everyone in this place. Put yourself in the shoes of those desperate refugees and ask yourself whether you would flee for a better life for you and your family. Of course you would. So let's give these people a safer option, save their lives and show them that we have enough decency, humanity, grace and generosity to welcome them to this most lucky country. And let's show Australians that their representatives have hearts and the courage to make decisions that in years coming we can be proud of.

Senator SMITH (Western Australia) (11:49): I will use the limited time available to add my support to the government's Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. At last Australia is back on track to restoring the integrity of Australia's border protection and, importantly, removing the incentives for people to risk their lives and the lives of their families by undertaking risky journeys by sea in search of a better beginning. Let me be clear: I wholeheartedly endorse the historical fact that Australians have been willing, over many years, to give sanctuary and hope to those fleeing persecution. Australia's record of providing hope to those seeking asylum is well documented and one that we can be proud of.

I have sympathy for the recommendations in Air Chief Marshal Houston's expert panel report that propose to increase Australia's humanitarian program to 20,000 places per annum and that a minimum of 12,000 places should be allocated for the refugee component, as well as the report's emphasis on asylum seeker flows moving from source countries into South East Asia. But I direct my remarks to the expert panel's recommendations concerning offshore processing at Manus Island in Papua New Guinea and at Nauru.

In 2002, I had the opportunity to visit both Manus Island and Nauru with the then Minister for Immigration and Multicultural Affairs, the member for Berowra, and the then opposition spokesman for immigration, today's Prime Minister. For me the experience was powerful. It was formative in shaping my attitudes to border protection policies. There were some elements I was unable to accept, most particularly the policy at the time to detain women and children. It is a testimony to the government at that time that it was quick to read, respect and respond to the growing community discomfort with the detention of women and children. That same responsiveness has been absent in the government's desire to respond and put in—

Debate interrupted.

Senator McEWEN (South Australia—Government Whip in the Senate) (11:52): I present the ninth report of 2012 of the Selection of Bills Committee and I seek leave to have the report incorporated in Hansard.

Leave granted.

The report read as follows—

SELECTION OF BILLS COMMITTEE

REPORT NO. 9 OF 2012

1. The committee met in private session on Wednesday, 15 August 2012 at 7.15 pm.

2. The committee resolved to recommend—That the Renewable Energy (Electricity) Amendment (Excessive Noise from Wind Farms) Bill 2012 be referred immediately to the Economics Legislation Committee for inquiry and report by 31 October 2012 (see appendix 1 for a statement of reasons for referral).

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

Fisheries Legislation Amendment Bill (No. 1) 2012

Tax Laws Amendment (2012 Measures No. 4) Bill 2012.

The committee recommends accordingly.

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

Broadcasting Services Amendment (Public Interest Test) Bill 2012

International Monetary Agreements Amendment (Loans) Bill 2012

Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications Amendment) Bill 2011

Special Broadcasting Service Amendment (Natural Program Breaks and Disruptive Advertising) Bill 2012

Statute Law Revision Bill 2012.

APPENDIX 1

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of Bill:

Renewable Energy (Electricity) Amendment (Excessive Noise from Wind Farms) Bill 2012

Reasons for referral/principal issues for consideration:

In undertaking the inquiry, the Committee should consider:

The possible human health risks from exposure to excessive noise from wind farms (defined as power stations that generate some or all of their power from wind).

The acoustically accepted definition of excessive noise in respect of wind farms.

The type of noise monitoring currently conducted on wind farms.

The type of noise monitoring these amendments will require wind farms to conduct in the future.

Possible submissions or evidence from:

Various State Government Departments

Local Government Associations

Pacific Hydro

Acciona

Infigen

AGL

TRUenergy

Vestas

Keppel Prince Engineering

Clean Energy Council

Community Associations

Committee to which the bill is to be referred:

Senate Standing Committee on Economics (Legislation)

Possible hearing date(s):

September 2012

Possible reporting date:

November 2012

(signed)

Senator McEwen

Selection of Bills Committee member

Senator McEWEN: I move:

That the report be adopted.

Question agreed to.

Senator McEWEN (South Australia—Government Whip in the Senate) (11:53): At the request of Senator Crossin, I move:

That the Legal and Constitutional Affairs Legislation Committee be authorised to hold a public meeting during the sitting of the Senate on Tuesday, 21 August 2012, from 4.30 pm, to take evidence for the committee's inquiry into the provisions of the Privacy Amendment (Enhancing Privacy Protection) Bill 2012.

Question agreed to.

Senator SIEWERT (Western Australia—Australian Greens Whip) (11:54): I move:

That the Community Affairs References Committee be authorised to hold a private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate on Thursday, 16 August 2012, from 4 pm.

Question agreed to.

Senator XENOPHON (South Australia) (11:59): I move:

That the following bill be introduced: A Bill for an Act to amend the Fair Work Act 2009, and for related purposes.

Question agreed to.

Senator XENOPHON: I present the bill and move:

That this bill may proceed without formalities and be now read a first time.

Question agreed to.

Bill read a first time.

Senator XENOPHON (South Australia) (12:00): I present the explanatory memorandum and I move:

   That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

FAIR WORK AMENDMENT (SMALL BUSINESS – PENALTY RATES EXEMPTION) BILL 2012

It is with both great pleasure and a little trepidation that I introduce this bill.

I am pleased because I believe this bill will trigger a discussion we urgently need to have.

But I also know this is an issue that some people consider 'too hot' to touch.

Penalty rates are a contentious subject. There is no doubt that workers deserve a fair day's pay for a fair day's work, and penalty rates have played a part in that concept since the 1950s.

But things have changed in the last sixty years.

In many industries, we now have a seven day working week. While weekend penalty rates were originally intended to acknowledge employees' work outside the standard five-day working week, there are now many employees who consider their ordinary hours to include weekends, evenings and early mornings.

This bill is an attempt to balance the need for penalty rates and the strain they are placing on small businesses.

A Benchmarking Report by Restaurant and Catering Australia conducted late last year found that 18.2 per cent of respondent businesses reduced their hours because of the increase in penalty rates. Almost one third of the businesses said they employ fewer staff because of high labour costs.

And a significant 70.9 per cent of businesses indicated they would reduce the number of staff further if labour costs rose in the next twelve months.

Based on the average shift length of four hours, it means 509,356 shifts were lost during the year as a result.

That equals 2,945 jobs in the industry.

The same report found that 90.5 per cent of businesses ranked wage pressures as a major difficulty in running their business.

It is also important to note that Peter Strong, Executive Director of Council of Small Business Australia, has indicated his support for this bill. Mr Strong has worked closely with the Gillard Government on small business issues for many years, and I appreciate his support. I should also point out that he has recently shut his own business, a bookshop, on Sundays.

Mr Strong said in the media: "We need a workplace relations system that reflects the realities of the modern world. The current approach to penalty rates has cost the jobs of people who can only work on weekends and was not developed with a view of the needs of the whole community. University students, school students, women who can only work on weekends and others have lost income."

The aim of this bill is to acknowledge that many small business employees are missing out on shifts or even jobs because small businesses simply can't afford to open on days with high penalty rates.

My office is located on Rundle Street in Adelaide, an odd mix of high end designer stores and quirky small businesses. But recently, it's become much quieter on weekends.

I've spoken with small business owners from that precinct and elsewhere who have had to downsize to stay open on Sundays, and others who have decided to reduce their employees' shifts and close on Sundays.

And I've spoken to casual and part-time employees who say that, while they love their penalty rates, they'd be happy to get more shifts and work an extra day in exchange.

I appreciate not all people will feel like this. I do not like the idea of anyone being disadvantaged, but I believe this is a debate we need to have. It's clear there are many employees who are already being disadvantaged and being deprived of extra hours of work on weekends.

The provisions in this bill state that an employer in the restaurant and catering or retail industries who employs fewer than twenty full-time equivalent employees will not have to pay penalty rates during a week except where employees have worked more than ten hours in a twenty-four hour period or thirty-eight hours in one week.

The aim of this is to compensate employees who work outside the traditional thirty-eight hour week, or over what could reasonably be considered a working day. The definition of a small business as fewer than twenty full-time equivalent employees comes from the definition used by the Australian Taxation Office, as the general consensus in the industry is that the Fair Work Act definition of fifteen FTEs is too low.

These conditions will apply to all relevant current and future modern awards.

I look forward to the submissions, both for and against the bill, to the Senate Inquiry that I trust will ensue.

I know this bill will start a furious debate, and I hope it can be a constructive and useful one.

If it is not, if we cannot find some sensible common ground, then both small businesses and employees, including prospective employees, will end up being disadvantaged.

Senator XENOPHON: I seek leave to continue my remarks later.

Leave granted; debate adjourned.

Senator WATERS (Queensland) (12:00): I move:

That there be laid on the table, by the Minister representing the Minister for Sustainability, Environment, Water, Population and Communities, no later than 11 September 2012, the following:

   (a)   documents relating to all current conditions for the operation, use, maintenance and monitoring of each current sea dumping permit issued by the Authority in the Great Barrier Reef Marine Park (GBRMP);

   (b)   any document that details all current sea dumping sites in the GBRMP and Great Barrier Reef World Heritage Area, including coordinates and size of the dumping area;

   (c)   all documents relating to the consideration or analysis of land-based disposal alternatives for each current sea dumping permit issued by the Authority in the GBRMP, including the initial consideration/analysis plus any subsequent analysis in light of additional or changed dumping requirements or new or changed information;

   (d)   all documents that provide a long-term analysis of the impacts of the dumping, including direct, indirect, distal and cumulative impacts for each current sea dumping permit issued by the Authority in the GBRMP; and

   (e)   any documents relating to breaches of conditions and responses to those breaches, including compliance measures, such as remediation, changed conditions, fines or litigation, for each current sea dumping permit issued by the Authority in the GBRMP.

Question negatived.

Senator COLBECK (Tasmania) (12:10): I present the report of the Senate Select Committee on Australia's Food Processing Sector, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

Senator COLBECK: I move:

That the Senate take note of the report.

Often these report presentations end with thanks but I think it is appropriate today that I commence my comments with thanks, because this has been quite a project over time, and the gestation of the report, and even the terms of reference, took some time. I start by thanking the secretariat; it is appropriate that there are some members of the secretariat in the advisors box this morning, because they have done a fantastic job on this inquiry for us. I specifically say thank you to all of the members of the secretariat. We have had a bit of a changeable time. We have had, I think, three secretaries over the time of the inquiry, but to pull together a substantial report like this one has taken a fair bit of work and I certainly appreciate the work that the secretariat has done in assisting the committee with this inquiry. I also thank the submitters and the witnesses who appeared before the inquiry over the last 12 months.

I have seen this as an important piece of work for some time, as I know other members of the committee have, and I hope that the work we have put out through the report bears justice to the industry—an industry that is very important to Australia.

I also thank my colleagues on the committee. Coalition members, crossbench members—Senator Xenophon, Senator Madigan and also members of the Labor Party who participated in the inquiry. Obviously there were a number of perspectives represented around the committee and that is manifested in a minority report from the opposition and a minority report from Senator Xenophon. I thank them for their input. This is an important issue. I particularly thank Senator Xenophon and former Senator Fielding for supporting the motion that put this inquiry into train. The government did not support this inquiry going ahead; nor did the Greens. but I appreciate the fact that Senator Xenophon and former Senator Fielding saw that this was an important issue for the Senate and I thank them for that. As I said, I note that the government did not want this inquiry to go ahead and voted against it, as did the Greens, who played absolutely no part in the entire inquiry, unfortunately, despite their discussions around this particular matter. As I said, a number of senators have been concerned about this for a considerable period.

The terms of reference took a bit of time to put together and they were deliberately broad. This report provided us with the opportunity to have a good look at the industry across a number of elements to consider where we might take it. There are 35 recommendations and they cover a fairly wide range of issues, but I hope that there is something in the recommendations for everyone, and I certainly hope that the report provides the opportunity to dispel a few urban myths that were presented to us as part of the overall inquiry process.

I am not going to be able to deal with all the recommendations in the 10 minutes I have, but I will deal with some of the key issues that were raised through the inquiry. The taxation regulatory environment was certainly an important part of the process that we discussed and the issue of carbon tax inevitably came into that discussion. Our recommendation is not so much critical of the carbon tax, although there was plenty of evidence to demonstrate the impacts of the carbon tax through the food processing supply chain. I know one company is spending $17 million to mitigate the impact of the carbon tax and, after they have done that, they will still have a $7 million a year bill. The impact that that will have down the supply chain is concerning to me. We have asked the government to look at how the big emitters pass the cost down the food supply chain, how the profitability of small businesses is impacted and how those businesses can work that through to recoup some of those costs that the government is imposing on them through the carbon tax.

Importantly, from my home state of Tasmania, which is significantly impacted by transport, we heard from a number of places about transport costs. I urge the government to continue to move quickly on the Deegan report, which talks about the fundamental efficiency and the cost-effectiveness of transport across Bass Strait. It is a significant factor for my home state of Tasmania and we urge the government to move on with that.

The issues of supermarkets, creeping acquisitions and the operation of the Competition and Consumer Act was inevitably an important part of the report and there were a number of opinions around the table. The significant recommendation arising, from an opposition perspective, was that there needs to be a comprehensive review—a root and branch review, if you like—of the Competition and Consumer Act. It has been a long time since there was one; the market continues to evolve and it is appropriate that we go through that process again. There were a number of issues that were continually raised with us about misuse of market power, creeping acquisitions, predatory pricing and unconscionable conduct. I know the ACCC is looking at these matters now and I look forward to its report when it comes out later in the year and the contribution that it makes to the overall debate.

The supermarkets send us glossy brochures referring to their performance and the way they look after their customers, which is vitally important as part of this overall discussion, but one thing they do not measure, and which I have not seen any measurement of, is their suppliers' satisfaction. They have asked me how they deal with that—we have had conversations about that in the past—and the perception that they are not looking after their suppliers. We are recommending that they establish, as part of their benchmarking and as part of their corporate reporting, a mechanism through their independent reporting process, which is already in place, to measure, benchmark and report on supplier satisfaction. It will help them deal with some of the perceptions that are out there in the market and, as well, will give the broader market a better idea of what is going on.

The cost of government to industry was a significant concern right through the inquiry. It did not matter whether it was export fees and charges, the carbon tax or regulation. I know the government has processes in place to deal with, say, transport across the country and providing national systems to reduce costs, but we need to continue to do as much as we possibly can to reduce the input cost of government to business. That has to be a fundamental role that government plays as part of the way it operates. So there are a number of recommendations that deal with that and which also to try to take some of the red tape and duplication of costs out of the supply chain. We recommend that the government get involved, and industry also, in the global food safety initiative so that some of the multiples of certification that are required for businesses can be condensed to remove the number of times that businesses are imposed upon for audits and things like that, and also to try to take some of the cost of doing business out of the system.

In respect of education, we are really concerned at the engagement of the agricultural and food processing sectors with the education system and Australians' more broad understanding of the food system. Where their food comes from and how it is generated is lacking. We recommend that the government work with industry—we know there is some work already occurring there—to try to draw those understandings together and to make sure it is properly funded—because it is funded in a very piecemeal way at the moment, causing divisions within the sector—to give Australians a better understanding of where all these things lie.

Inevitably, workplace relations comes as part of this. I know the government is not going to support our recommendations on that but it is a significant issue for industry and was expressed to us a number of times. One of the other things we hear a lot from government is that Australia will be the food bowl for Asia. I can tell you that at the moment there are some real inhibitors to being part of that market. The government has a significant role to play in making that easier. Our recommendation, that we embark on a 'brand Australia' type program to start promoting us into the Asian region, is a very, very positive one.

Senator URQUHART (Tasmania) (12:20): I rise to speak on the report of the Senate Select Committee on Australia's Food Processing Sector and I begin by also recognising the work of the secretariat—Richard, Ruth, Erin, Robert, John, Sandra and Tim. Thank you, and to others who assisted the committee members. I also recognise the work of Matt from my office and Frances from Senator Stephens' office: thank you both. I recognise the work of the Chair, a fellow senator for Tasmania, Richard Colbeck, for proposing the committee and the broad terms of reference.

However, I have to express government senators' disappointment that all of the terms of reference are not covered as comprehensively as they should have been. It is no secret to this place that my background is the food processing industry, both working in and later representing workers in the industry. For the opposition senators to place such importance on stripping away the wages and conditions of Australians working in the food processing industry flies in the face of the purpose of Senate select committees, which, to my knowledge, are meant to leave politics at the door and investigate issues. The sections of the report on wages and conditions show the true colours of those opposite. They are not interested in working Australians. It is clear from Senator Colbeck's, Senator Edwards's and former Senator Fisher's efforts that, as much as the Leader of the Opposition tries to pretend, if the opposition is elected Work Choices is definitely not dead, buried or cremated. Those opposite think that the only way to increase productivity in business is to drive down wages and conditions of working Australians. To that I say: think harder and think smarter.

The committee report references the comments of McCain Foods. They said:

The current penalty rates regime in Australian award structures do not encourage continuous 24 hour 7 day processing. Overtime and shift penalties are much higher in Australia than in New Zealand, which again contributes to lower productivity and lack of competitiveness in Australian made products

By including this quote, coalition senators are supporting a notion that people who work shift work should receive no extra support, no extra assistance to cope with the irregular sleeping patterns and no extra assistance to cope with not being able to access services during normal hours—just get the worker in and flog them until they drop.

The government senators' dissenting report catches out the coalition senators on their selective quotes in relation to workplace relations. Three instances are provided where a coalition senator asked a business representative about the impact of the Fair Work Act and modern awards on the business, and on each of these occasions the business representative did not express the kind of approach outlined by McCain. When questioned by former Senator Fisher on whether the Fair Work Act had hindered business, Mr Vincent Pinneri of SPC Ardmona, a major food processor, said:

No, it has been irrelevant.

Further, at the same hearing that McCain appeared at, Mr Mark Kable of the Tasmanian Agricultural Productivity Group said:

Everything seems to be more efficient over there—

in New Zealand—

than what it is here in Australia. The whole costing structure of production, packing, road transport, sea transport—every sector is cheaper than what it is here in Australia when you break every component down.

It is not just about wages and conditions, is it? It is definitely not. Further evidence of that came from the Sydney hearing of the committee, where not one question was directed by coalition senators to the AMWU about wages, conditions or flexibility—not one question to the union representing workers in the food processing sector about wages, conditions or flexibility let alone the impact of the Fair Work Act and modern awards on their members and their members' workplaces. It is as though opposition senators had already made up their minds.

As the senators are aware, the government have recently released a comprehensive independent review of the Fair Work Act. The review found that the legislation provides a number of avenues for flexibility. Under the Fair Work Act, an employer and employees can negotiate an enterprise agreement on any matters that pertain to their relationship. There are no unnecessary restrictions on what can be included in an agreement. The Fair Work Act requires that such an agreement leave employees better off overall compared with the applicable modern award. This provides flexibility to change award conditions, so long as employees are better off overall.

The independent review found that labour costs have not increased, with overall wage growth since 2009 around its decade-long average. It rejected claims that flexibility is created by cutting wages and conditions. It did not recommend the reintroduction of AWAs, or any form of individual contract that coalition senators in their recommendation No. 26 are so desperately asking for. In fact, the review identified that AWAs were bad for many employees, especially for low-skilled and vulnerable workers. The review found many of these workers have suffered the unilateral removal of conditions, a reduction in their take-home pay and were worse off overall compared with the relevant award. AWAs undermined the safety net, often for those who needed protection most. The review had no appetite to reintroduce this arrangement. Further, the review found no convincing evidence that the act impedes productivity growth. In fact, it cautiously noted some recent figures indicating improvements in productivity.

The review found that, since the act came into force, important outcomes like wages growth, industrial disputes, the responsiveness of wages to supply and demand, the rate of employment growth and the flexibility of work patterns have been favourable to Australia's continuing prosperity. Government senators noted in our report that Fair Work Australia is currently undertaking a review of modern awards, including in relation to penalty rates and flexibility. I once again express my disappointment that so much emphasis in the committee report reflects highly selective evidence on industrial relations matters.

I now turn to the other highly politicised section of the committee report: energy costs. Government senators fundamentally disagree with much of the evidence presented to the committee on the carbon pricing policy. There are many examples in the food processing sector that highlight the potential for innovation and opportunities being harnessed through the clean energy technology package. Government senators note that a significant portion of the revenue from carbon pricing is spent on industry assistance. Of particular relevance to the food processing sector is the Clean Technology Investment Program for manufacturing businesses, which provides government co-investment into new capital which lowers energy costs and improves competitiveness.

In evidence to the committee, Mrs Mac's, a large-scale bakehouse, expressed appreciation for the range of government grants to assist businesses. Mr Beros said that through investing with government Mrs Mac's had a 28 per cent decrease in water heating costs, a 25 per cent increase in one of their line speeds using the same level of energy input and a 30 per cent efficiency gain in some of their condensers. I also refer to Crafty Chef from Emu Plains in New South Wales who had received nearly $500,000 from carbon pricing revenue to install a new commercial blast freezer. This will reduce the carbon intensity of its operations by 54.1 per cent, reduce energy intensity by over 56 per cent and boost turnover by 150 per cent to $50 million.

In our dissenting report, government senators refuted claims made by Campbell Arnott's using modelling from the Australian Food and Grocery Council that pricing carbon will have about a 4.5 per cent impact on industry operating profits. This modelling did not include the assistance measures to industry and is an overestimate of the actual impacts on the sector. We also highlighted that, although Lion Pty Ltd is blaming the carbon price for increased admin costs as it is not a directly liable business, there should be not be any additional administrative burdens.

The evidence throughout the report on carbon pricing indicated the extent of community misunderstanding about the actual impacts on Australian businesses. Treasury modelling of the food manufacturing industry forecasts growth of 108 per cent by 2050 and also forecasts that carbon pricing will result in food processing outputs two per cent higher in 2050 than without it. Treasury's broad conclusion is that carbon pricing will drive a shift of economic activity towards low emission intensive sectors of manufacturing like food processing. The government senators consider that the food processing sector needs further assistance to understand the real implications of the carbon price on the food supply chain and the mechanism for determining those costs and how to pass them on to consumers.

The report highlights some areas of reform that will be critical for the food processing sector. We were provided with inspiring examples of new and emerging products that are capable of transforming parts of the sector. We need to remember, however, that the industry is best served by an innovative and adaptive business culture and a trained and supported workforce.

Senator EDWARDS (South Australia) (12:30): I rise also to speak on the inquiry report tabled by the Select Committee on Australia's Food Processing Sector. This nearly year-long inquiry took us the length and breadth of this country, where we spoke with myriad businesses, industry organisations, grower groups, academics and government agencies. We visited a diverse number of businesses across Australia, including vegetable growers in Tasmania, chocolatiers in Adelaide and the seafood industry in Western Australia.

The food industry is currently in a 'perfect storm', confronted by a high Australian dollar, making exports harder and increasing competition from cheap imported products; increasing input costs, including labour, energy and ingredients; complex regulation and taxation; high market concentration; and growing private label market share. Prospects for future growth are good, based on Australia's clean, green, safe reputation for food, a burgeoning Asian middle class and a growing global population. The industry employs around 194,300 people across 10,000 businesses. There is much work to be done if the industry is to realise its full potential and harness this prosperity. This report begins that process, but there is much more that can and should be done.

This report is nine chapters long, with 34 recommendations, and is a comprehensive investigation of the industry. I congratulate our chair, Senator Richard Colbeck, and the secretariat for preparing such a massive report that is sound and perceptive. The recommendations reflect what I believe the industry and Australia needs going forward in the food processing sector.

I first turn my attention to the skills development and labour market issues chapter. What industry told us is that there is a large shortage of suitably qualified labour. For example, there is a large shortfall between the 4,000 to 5,000 job vacancies for agricultural and food science positions and the 700 to 800 science graduates each year, so we have some work to do in this area. One reason for this shortfall, we believe, is a lack of promotion in primary and secondary schools of the careers available in the food industry. Yes, that is right—it goes right back to primary schools. Some kids think that milk is grown in a packet, that chops come from a place where they also produce polystyrene trays. Poor advice from careers advisers is also to blame for the shortfall, as is the perceived 'unsexiness' of the industry with these people which is leading them away from career choices. This is profound. This is why I am currently working with the University of Adelaide and the food industry in my home state to build stronger links between tertiary institutions and industry, assist in delivering graduates who are more job ready and foster more research with practical industry outcomes.

We have just heard a dissertation from Labor Senator Anne Urquhart about the Fair Work Act and what it is doing to protect this industry. We also heard from her about energy costs and how they are not really to blame. These people have been marginalised by retail market consolidation and lack of export ability because of the high dollar that is favouring imports into this country. I am not sure what parallel universe Senator Urquhart was in during the hearings because she was sitting there on the committee with me. Further, we have been chastised about the fact that we interrogated witnesses based on their experiences with the Fair Work Act. Well, the evidence flowed and flowed, and it kept coming the length and breadth of this country. However, there were Labor senators involved in this inquiry and they failed to interrogate those witnesses. I am not sure they thought they were going to get any other evidence. We have been chastised here in this chamber about a biased level of questioning but we were on equal time during the inquiry. They had the perfect opportunity to interrogate those witnesses themselves and they failed to do so. I am not sure that they thought they would find out anything different. So I will not accept that criticism at all.

The inflexibility of the Fair Work Act impacts on the food industry disproportionately due to the nature of the industry. Harvest time, production shift work and the seasonal nature of the industry mean that flexibility is needed to ramp production up and down quickly. For example, penalty rates are having a disproportionate impact on the wine industry. I can bear witness to that experience myself, when we shut a winery because rates have become too expensive to keep it open over the Easter period and long weekends. What happens to the fruit out there that is ripe? It just has to wait. That is evidenced in the length and breadth of the wine industry, let alone in the broccoli industry and the carrot industry through Tasmania. Broccoli does not wait, but it has to wait until you can afford to pick it. Coles and Woolworths do not pay you more because you picked it on a Sunday. You cannot recoup those costs. This is a serious problem.

One of the other experiences was backpackers being employed and superannuation being taken from their pay and producers writing cheques—in one case in Shepparton—for $30,000 for the harvest season for superannuation to people who have no hope of ever collecting that money. Where are they going to find them—somewhere in Central Europe? That was an impost on business—excessive red tape. Further reforms are required. A renewed commitment to the national, seamless economy through COAG and the simplification of taxes will help improve the competitiveness of this industry. The government's carbon tax is another impost on business, which is why we have recommended that its impact be closely monitored. And of course, this tax is something which the coalition is committed to repealing, easing some of the burden which is quite obvious out there in the evidence we took on this industry sector.

The Competition and Consumer Act 2010 is designed to address anticompetitive conduct but has largely failed to serve everyone in the food processing sector. Through this inquiry we have heard how the act has seemingly failed with regard to unconscionable conduct, predatory pricing, the use of trading terms in contract negotiations and creeping acquisitions. There is a climate of fear within the industry preventing it from bringing breaches forward, and the Australian Competition and Consumer Commission have thus far failed to address industry's concerns and provide adequate anonymity and protection for people to come forward. I must say that there has been some progress and there is some level of optimism out there in industry, with the new chairman seemingly taking a new approach to this issue. The industry strongly advocated for a supermarket fair trading ombudsman similar to that operating in the United Kingdom. The report's recommendations did not go this far, instead recommending a review of the Produce and Grocery Industry Ombudsman as to its effectiveness or lack thereof.

I and a number of the other committee members considered more interventionist regulatory changes including: structural separation of supermarkets' private-label businesses, mandatory divestiture—highly controversial—of the supply chain assets and businesses, preventing retailers achieving a market share greater than 40 per cent, and other things including price monitoring, prohibiting the sale of food below cost, and trading terms all came into the conversation. These options were strongly supported by some sectors of business and peak industry bodies but were not supported by the majority of the committee.

Food labelling in this country is confusing and misleading for consumers and prevents some businesses from gaining the benefits of being wholly Australian. The Blewett report and its findings several years ago again reinforced that the momentum must be maintained. The cost pressures put on industry have meant that the investment in research and development has been dramatically cut particularly by small to medium enterprises. R&D is critical for the future innovation, productivity and competitiveness of the industry. I seek leave to continue my remarks.

Leave granted.

Senator XENOPHON (South Australia) (12:40): It was a real pleasure to serve on this committee and I am grateful to Senator Richard Colbeck as chair who proposed this inquiry, which has been a very important and valuable inquiry. I also thank Richard Grant and the team of the secretariat—they have done a terrific job in supporting us in relation to the work of this inquiry. I have provided a minority report—it is not so much a dissenting report—to add a number of recommendations, and I will run through those very quickly in the limited time available.

There is a crisis in our food processing sector. It is a sector that has so much potential. It is a sector that needs support, and I do not think that it is getting that support now. There is a whole range of measures that need to be dealt with. We need to deal with issues such as food labelling. We do not have truth in food labelling in this country, and that will make a real difference. Australians want to buy Australian produce. They want to have that choice. They want to make an informed choice from the supermarket shelves, and currently our food labelling laws are positively misleading. That needs to be addressed.

There is also an issue of the market duopoly we have seen in the grocery market with Coles and Woolworths. We saw what Master Grocers Australia said just a few days ago and we heard evidence—and I will be careful in my choice of words—that could not be published that raised concerns on the part of food processors. I think it says it all. When Lateline did a story about the work of this inquiry about the food processing sector, they approached over 100 food processors and not one was willing to come forward to speak on camera. In fact, one did, but pulled out at the last minute. That says that there is a real issue. It is not because Coles and Woolworths are intrinsically bad people; it is a function of the market. They have so much market share, so much market power, that it is unhealthy in terms of a competitive environment. That is why in my minority report I say that we need to go down the path of giving the courts a divestiture power where there is a proved abuse of market power. I think we actually need to look at that and it is something that I want to do more work on.

There are also issues raised in terms of unfair contract terms. We heard a lot of evidence about how terms appear to be unilaterally changed and how some producers and food processors felt they could not raise an issue about that because they relied so heavily on one or both of the big two supermarkets. That is a big issue and I think it needs to be dealt with. What is very telling is that so many food processors and farmers are saying that they do not want their kids to be involved in this business because it just is not worth it.

But there are real glimmers of hope in this industry. The produce and the quality that is produced are second to none and we need to encourage that. We need to look at our free trade agreement with New Zealand in terms of what 'product' actually means in New Zealand. That needs to be scrutinised, because the concern is that we are getting foreign goods, purported to be New Zealand goods, as part of the CER, and I think we need some greater clarity and transparency in relation to that.

Australian consumer law needs to provide greater protection for suppliers who have suffered detriment after making a complaint to the ACCC. In other words, if somebody is a whistleblower, they need to be protected. There needs to be a reverse onus of proof, in a sense, so that if they do suffer detriment it is up to the supermarket chain to show that it had nothing to do with their complaint. These are just some of the matters that need to be dealt with.

The issue of the dominance of the big two is important but there are other issues in terms of productivity. I am glad that the government had a review of the Fair Work Act. I supported the abolition of Work Choices, but I am worried that the pendulum has swung too far in some cases, particularly for small businesses in this country, and that is why I introduced a bill earlier today. I do not want to see a return to Work Choices but we need to acknowledge that small businesses in this country are doing it tough and that those small food processors that are the future of this industry in terms of innovation and quality are suffering, and they need to have some flexibility where they can pay fair wages but have the ability to survive in an increasingly globalised market.

Madam Acting Deputy President, I seek leave to continue my remarks later and I hope that other members who participated in this inquiry can make a contribution as well. It was, again, a very worthwhile inquiry and I congratulate the mover and the committee for their work.

Leave granted.

Debate interrupted.

Senator SMITH (Western Australia) (12:45): I will continue my remarks on this week's developments for improving Australia's border protection, and in particular my visit in 2002 to both Manus Island and Nauru in the presence of the now Prime Minister.

I am staggered that despite having been and seen the success of offshore processing herself in 2002, the Prime Minister and her government have been slow, reckless and belligerent in returning to policies that have clearly worked. A decade ago this Prime Minister saw for herself the success of these policies when she visited Manus Island and Nauru. Her views of what she saw are for every Australian to see. The Age newspaper reported on 6 February 2002:

On Sunday, Ruddock and his Labor counterpart, Julia Gillard, visited the base, free of any prying media.

Yesterday, both were united in their praise of the facility. To the surprise of some of her colleagues, Gillard went out of her way to declare that she saw nothing wrong with how things were operating.

On the same day the Canberra Times stated:

She said people had shelter, health care, adequate food, …

Not surprisingly, she commented that conditions were tough and that there needed to be more attention to the adequacy of schooling for children. So how can the Prime Minister not feel deeply, deeply ashamed that 10 years ago she witnessed firsthand a policy setting that she has now agreed to endorse?

The tardiness of her handling of this issue has come at considerable cost: not just the $4.7 billion cost to the Australian taxpayer but the 22,000 illegal boat arrivals, the almost 400 illegal boats and, most tragically, with the loss of almost 1,000 lives at sea. After a catastrophic policy failure only now has the Prime Minister finally seen a better path—a path that was not hidden from her, but one that she saw firsthand for herself 10 years ago in 2002 when she visited Manus Island and Nauru.

I am afraid to say that the newsletter of the Socialist Left of February 2002 was prophetic in its commentary on Labor's border protection policies. It said, 'Labor's indecision on the border protection bill exposed a policy-on-the-run approach and a lack of leadership. A sorrier story of policy failure mixed with political self-preservation we have not ever seen.'

This legislation is not perfect, nor is it a complete remedy for Australia's border protection dilemma, but it is a necessary first step. The next steps must be the imposition of temporary protection visas and turning back the boats when it is safe to do so.

Senator BERNARDI (South Australia) (12:48): I welcome this move towards offshore processing. This has indeed been part of the coalition policy agenda for over 10 years. But what the government has done here this week is simply not enough. The government must implement all the coalition's proven measures in order to establish an effective policy against people smugglers and illegal boat arrivals.

What we have here today is a one-legged stool. It has the beginnings of a functional object, but without the other legs it will never be stable or effective. Unfortunately, that is something that this government is good at doing—not being stable or effective.

In contrast to the disarray of Labor I am proud to be part of a party that has consistently supported good border protection policy and opposed bad border protection policy. Year after year we have stood firm in pursuing the policies that worked in deterring the people smugglers' trade, but I cannot say the same for this Labor government. They have backflipped and flip-flopped to such an extent that I wonder whether they know which way is up these days. Let us just have a look at their track record.

In opposition, the Prime Minister supported turning back the boats. Three years ago she said that turning back the boats was a shallow slogan. Now she seems to support a virtual turnaround of the boats. In opposition, the Prime Minister talked of temporary protection visas as part of Labor's policy; now her government does not support temporary protection visas. The number of empty words from the Prime Minister and her colleagues is simply astounding. Those on the Labor side should indeed hang their heads in shame at the intransigence of the last four years.

Just look at the damage and tragedies that have occurred: over 22,000 illegal arrivals on 386 boats; an increase in the people-smuggling trade that puts people's lives at risk day after day after day; a $4.7 billion blowout—for those Australians who are actually listening to this, that is $4.7 billion of your taxpayer dollars being spent because of Labor's failures—and, tragically, there were hundreds—perhaps even thousands—of deaths at sea. In just four years, Labor has easily eclipsed the number of illegal boats and arrivals that came during the entire 12 years of the Howard government. Labor took a policy that was working and they created an enormous problem. They put their own ideological bent before the interests of this nation. Such a grievous error of judgement is simply unforgivable.

The travesty that Labor has allowed over the last four years is proof that this Prime Minister is not fit to hold the highest office in this land. Those on the other side of this chamber will eventually wake up to this fact, just as they have finally woken up to the fact that offshore processing on Nauru is important to stop the people smugglers' trade, just as they will wake up to the fact that temporary protection visas are a necessary element of stopping these boats and just as they will wake up to the fact that turning the boats back where it is safe to do so is also an essential part of effective border protection policy.

But we all know that Labor find it really difficult to recognise sensible policy. It is simply deplorable to deliberately trash established, sensible, effective policies in order to replace them with weak and futile attempts at ideological policy. We would not be here today trying to clean up this mess if the government had done the right thing and left the established policies as they were. We would not have had four years of an influx of boats, with thousands upon thousands of people paying people smugglers and risking their lives on a perilous journey, and we would not have had the hundreds—perhaps thousands—of deaths at sea.

However, finally the government have seen sense about how damaging their policy failures have been, with the flourishing of the people-smuggling trade and so many of these deaths. Yet, I regret to say, the delusional Greens party, championed by Senator Hanson-Young, continue with their cavalier attitude to protecting our borders and protecting asylum seekers from harm. This is perhaps best—or worst, I should say—summed up by a comment from Senator Hanson-Young just last year. When asked whether the Greens accepted any responsibility for the loss of life in the sinking of an asylum seeker boat off the coast of Java, she replied: 'Tragedies happen. Accidents happen.' That is hardly the compassionate view that the Greens constantly talk about. In this place I have seen Senator Hanson-Young cry her crocodile tears for the cameras while both she and her party blindly refuse to accept any responsibility for the dysfunctional nature of this country's border protection policies. They are just as culpable in this fiasco and this disaster as the government is.

Australians have every right to be outraged at the conduct of this government and their partners the Greens in respect of protecting Australia's borders. They also have every right to question the judgement and integrity of the Prime Minister and her government. But, in short, the buck does stop with the Prime Minister. The Prime Minister owes the people of Australia an apology. She should apologise for her perfidy. She should apologise for her mendacity. She can no longer hide behind the claim of being young and naive, as she has in the past. She now needs to do the honourable thing and resign or call an election.

Senator MASON (Queensland) (12:55): Since coming to office, the Australian Labor Party and their allies the Greens have failed our country in two important public policy challenges. We all know what they are: first it was the carbon tax and second, of course, it was border protection. They are the two conspicuous failures from the government and from the Greens. The root cause of Labor's failure is, of course, the same. What is that? It is the conspicuous moral vanity of the Australian Labor Party. In both cases, the Labor Party and the Greens have put forward policies that are not in our national interest just so they can show the world—and most importantly, perhaps, themselves—that they really are morally superior. They are the ones with a conscience. They are the ones who are enlightened. They are the ones who are ethical. They are the ones who are superior. The coalition on the other hand, they argue, is ignorant, unenlightened, mean and morally bankrupt. That is the left-wing narrative. That is the narrative of the Greens and the Australian Labor Party. That is the narrative of the Gillard government and the Rudd government since 2007.

So the Labor Party and the Greens mortgage our national interest with the introduction of a carbon tax. They mortgage the competitiveness of our economy, the jobs of our children and the balance of our trade and introduce a carbon tax. Why? So that they can feel good about themselves and show the world how enlightened they really are. No-one actually believes that the carbon tax is in our national interest. The Labor Party and their allies the Greens do it anyway.

Then the Labor Party and the Greens do it again. They do the same thing with border protection. They mortgage our national interest, the security of our borders, the integrity of our immigration program and, indeed, even the broad support for the humanitarian and refugee program. That is all mortgaged by reversing the Howard government's successful Pacific solution. Our national interest is all mortgaged because the Labor government just could not bear to admit that the Howard government was not morally bankrupt. They just could not bear to admit it. We were morally bankrupt, but of course the Labor Party were all sweetness, light and morality! They just could not bear it. Instead the Labor Party and the Greens are willing to sacrifice the integrity of our borders and our migration program and create a dangerous, unsustainable policy—this was the aim—so they can tell the world how compassionate and enlightened they are and so they can feel good about themselves. That is why they do it. It was all very cosy—terribly, terribly cosy way up there on their high moral ground and their moral high horse—because from up there you could not even see people drowning.

'Houston, we have a problem,' says the Prime Minister. Finally, reality intrudes. The horrors become apparent. Even the Australian Labor Party can see there is a problem out there, and what do they do? They outsource their conscience to Air Chief Marshal Houston. That is what they did, and it was pathetic. Politics should not be a giant psychodrama just so Labor politicians and Greens politicians can feel good about themselves. Our country's national interest should not be subject to that psychodrama. Right now the government is having to eat their moral vanity as humble pie, and I suspect it will be a little hard to swallow.

Senator BOYCE (Queensland) (13:00): I am indebted to the Australian for a report in the last few days on a mad snake virus which is affecting pythons in the US. It is causing them to tie themselves in knots and 'stargaze'. This mad snake virus is thought to be caused by rats and is being considered to be a mysterious new virus. I would like to suggest that in fact it has been a well-known virus affecting the Labor and Green parties of Australia for a long time and that it is only in the last few days that the Labor Party has finally worked out how to stop tying itself in knots and stop stargazing by accepting the sensible coalition suggestion of adopting what has in the past been a proven policy. Unfortunately, I do not think that we now have an antidote for mad snake virus. We have some concerns that going forward we have yet more problems to overcome with this policy that the government has finally seen fit to adopt.

It is concerning to see that the way they have gone about this has caused yet another deluge of people attempting to get to Australia by boat. It is concerning to see that people will initially be housed in tents. Certainly, if the government had accepted the coalition's view on using Nauru and Manus Island when they were first suggested two or three years ago, this would not have happened. We have had a very difficult period for everyone whilst the government was too proud, too affected, too virally unwell to see sense on migration. I am going to keep my remarks very brief because we are interested in getting this legislation passed and getting on with the job even though we apparently already have a mad-snake-type implementation of the legislation happening from this government.

I would also like to very briefly acknowledge another good point in the legislation other than the fact that it will re-establish offshore processing, and that is the significant improvement that the government will make to our humanitarian migrant intake. I think this is one of the most important ways of demonstrating to refugees and others seeking better lives for their families that this is the route to take to seek to come to Australia.

So I would like very much to support the legislation. We intend to move amendments to it, but the coalition supports the legislation and wants to support its rapid passage so that we can get past what has been a shameful stargazing effort from the government, manipulated by the Greens over the last 12 months.

Senator WHISH-WILSON (Tasmania) (13:04): I have only been a senator in the chamber for three sitting weeks, but I am learning a lot about government, parliamentarians and the responsibility that we all share. I reflect upon what is going through my mind sometimes when I come into the Senate chamber as someone who is new. I think about what people outside the big house may think when they see parliamentarians—I prefer to use that word rather than 'politicians'—on television. That is that perhaps we make decisions that might seem light and fluffy or frivolous at various times or that we somehow serve an administrative function, passing bills and legislation that may relate to the running of government. I can see clearly now the responsibility that goes with government.

All the decisions that we make affect people. Sometimes there may not be direct correlations with the decisions we make. There may be trickle-down effects or things may be fairly general. But I think this debate on refugees has a different human dimension. To me, the decisions we make in this parliament today on this legislation will not only directly impact people and their livelihoods but will also impact people who are probably in the least fortunate position to be put under even more psychological stress. For my feeling, all decisions we make in parliament are important but there is something very special about this debate today and the gravity of the decision we make.

I attended the cross-party refugee meeting on Monday with a number of my colleagues, and it occurred to me not just during that meeting but also in previous discussions with my fellow Greens senators and friends and family just what a complex problem this is that is facing Australia. It is a problem that is not going to go away. During that committee meeting we heard from a number of people who work with refugees. My position and the Greens' position of strength in this debate is from values based on the same values as those people who work with refugees. They are based on the same principles that those people who work with refugees adopt. Our position is based on the realities of what faces refugees. We have not taken this view for political purposes. We have taken this view after campaigning and working for a number of years with people who are on the ground and whose everyday lives are impacted by working with refugees. They see the angst, the destruction and the sadness. I think that is the Greens' position of strength here. It is a position based not on the broader political factors but on the reality of what is confronting us in that situation.

Earlier today Senator Hanson-Young talked about push factors. On Monday, the Refugee Council and Amnesty International discussed the potential push factors in Afghanistan when Western, NATO and allied troops are withdrawn from there in a few years time. We have discussed what has happened in Vietnam; it has been mentioned several times in several speeches. It has been made very clear that we possibly do not know what we will be in for in terms of the number of people who will be seeking political asylum here.

My question is: is this legislation a mistake from the point of view that we are picking on the most unfortunate people in the world when we are in such a fortunate situation? Also, is the solution we are putting in place today—the bill that will be tabled here—practical? Is it going to work? From a quick look at the numbers—and this was mentioned earlier by a coalition senator; I apologise that I have not learnt everybody's names yet—we have seen 22,000 people arrive since 2007. Last year alone, we saw 7,983 people arrive. From the best information that I can collect, Nauru can currently house 1,500 people and, at peak capacity, potentially 3,000 people. Manus Island, PNG, has a capacity to house 600 people. The nearly 8,000 people who have arrived in the last 12 months is a reflection of a future year—

Senator Fifield: Hopefully we won't. That's the point.

Senator WHISH-WILSON: Hopefully we won't. None of us want to see refugees getting onto boats and taking dangerous journeys. That is something we all share in common. If we are wrong on this and the numbers keep increasing, simple arithmetic says that both these places which are to house refugees will be quickly filled. The answer I got from people when I spoke to them about this issue was that this deterrent will work and the refugees will stop coming. No matter what your ideological view is on this issue, the reality of the situation is a lot more complex than that. It was also mentioned on Monday that problems are developing in Sri Lanka—the ongoing issues there with the Tamils. So it seems to me that a rational, logical person might question whether the boats will stop and whether this solution will be able to (a) house refugees and (b) process them. The Greens have asked for an amendment to limit the time refugees are in detention. That we consider putting a time limit on how long these people spend in detention seems entirely reasonable in managing the risks of this new legislation and what it will mean for these people's lives.

It is also reasonable to look at the costs associated with keeping people in detention. The establishment and operation of the regional processing capacity in Nauru in accommodating 1,500 people—so not at peak capacity—will cost between $1.2 billion and $1.4 billion over the forward estimates. The full establishment and operation of the regional processing capacity on Manus Island, PNG, in accommodating 600 people will cost in the order of $900 million over the forward estimates. Detaining people is expensive. I and the Greens would like to see more comprehensive economic work done on the costs of detention versus processing domestically. This is an issue that has got very little attention.

I was in the chamber when Senator Di Natale spoke last night. I was moved by his speech, as I was by Senator Hanson-Young's speech today. In that speech Senator Di Natale said, 'I think this is a mistake.' Have we sold the Australian public—and I use the word 'sold'—a quick-fix solution for this problem to go away? Do we want people to consider this legislation as a silver bullet to solve the problem? My concern is that, as parliamentarians, we have not managed the expectations of the Australian public. If we do see a continuation of boats—and, once again, I stress that we all hold the common belief that we do not want to see more refugees coming—and if we understand that the world is going to be wracked by conflict, then we can boil this problem down to its most basic cause and effect. It is simple human nature: this is not going to change. If we believe the climate change forecasts of disruption from extreme weather events such as drought and the projections of increased refugee numbers right around the world then I suspect how we manage this problem could be the single biggest issue facing this country over the next 100 years. Once again, it makes sense to me to say that this legislation is a quick-fix solution for a very complex problem. I wondered whether I would say this today but I do really want to say it: I doubt whether there is a solution to this problem. Looking at it every possible way, rationally, I am not sure how we can stop people in the future from coming to this country seeking asylum, seeking a better life, but I do know that claiming that this is a victory is stupid. We need to be a lot more grown-up about our debate, particularly in this chamber. There is blaming of the government, glib statements and politics when this issue is so serious—and I am speaking as someone who has only recently come into politics. It is not a good look for people outside the House who rely on us to make important decisions.

I want to comment on three other things that I feel are important. Firstly, there are the words 'border security'. What is it exactly that is a threat about poor, disadvantaged people, not carrying any weapons, from what I understand, and not intent on damaging our national infrastructure or hurting people in this country? What is the security threat from that? If you are talking more about a threat to our lifestyle—that as a nation we cannot afford to have significant numbers of people coming to this country—at least say it. Do not hide behind rhetoric. Come out and say, 'We can't afford to have these people,' and at least we can have that debate and look at it sensibly and rationally through a number of different measures.

The second thing is that I heard here today that people have a choice—it is their choice to get on boats. I must say that I was horrified, as I attended a press conference nearly six weeks ago, when my two fellow senators, Senators Hansen-Young and Milne, were speaking to the media. A journalist said: 'These people were told to turn back their boats. They didn't. They drowned. Why are we to blame for that? It's their fault.' My immediate thoughts were for the children below deck who would not have had any part in a decision to not turn back that boat. Let's put ourselves on that boat. Who would have? The captain, possibly, who is getting paid; the people smuggler that we all rightly demonise? Who would have made the decision not to turn back the boat or who would have made the decision to scuttle the boat? I very much doubt whether there was a democratic vote amongst refugees to continue on a dangerous voyage. Did they really understand the risks? Once again, we are not really thinking these things through very well.

Lastly—and I have said this to lots of my friends who disagree with my point of view on this and the point of view of my party—I would like you to do one simple thing: imagine yourself in the shoes of these people for just one minute, because, if you can imagine, then you can understand. That is the basis of empathy. With empathy comes human compassion and an understanding of what these people go through. For lots of Australians, possibly the best way to make that connection and to imagine and understand is on Sunday night by watching—I am not sure if I am allowed to promote a TV program in the Senate but I will anyway—SBS's Go back to where you came from. It was very hard to watch the first series and not feel compelled to put oneself in the shoes of these people. The next series starts on Sunday night. It is a shame it was not screened prior to this debate and the passing of this legislation because I think most Australians who watch that will feel and understand the pain and misery that these poor people are going through.

Senator FIFIELD (Victoria—Manager of Opposition Business in the Senate) (13:19): There was such an inevitability to the debate that we are having today on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. It was inevitable from the moment that the Australian Labor Party won office in 2007. It was inevitable from the moment that they started to systematically dismantle the policies that the Howard government had in place. It was inevitable that, every day between then and now, reality would come crushing down on the heads of those in the Australian Labor Party that this is a problem, this is a situation of their making and only legislation of the sort that we are debating today could undo that damage. It was entirely inevitable that we would end up at this point. That is why the Australian Labor Party say: 'Let's not talk about the past. Let's just talk about the future. Let's not play the blame game. Let's just pass this legislation.' And pass this legislation we should. But the reason the Labor Party do not want to look back is that they would have to confront their culpability for the sheer volume of boats and individuals who have been put in harm's way.

I well recall the current Prime Minister railing, along with Mr Rudd, the then coalition government's policies before 2007. They denied the existence of pull factors; only push factors existed, apparently. They were outraged at the very concept of offshore processing. It was immoral—we heard that more than once. And the hideous regime that the coalition had in place of offshore processing, temporary protection visas and turning back the boats where it was safe to do so was so reprehensible that dismantling those policies had to be one of the first things that the Labor Party did in office, and they did. I, like many colleagues on this side of the chamber, have been very critical of many policy areas of the Australian Labor Party, for not honouring their election commitments, but there is one election commitment that they honoured in full—lock, stock and barrel—and that is the systematic dismantling of the deterrents that we had in place, deterrents that were effectively shutting down the people-smuggling business.

The Australian Labor Party have spoken often about breaking the people smugglers' business model. They should know how to break the people smugglers' business model because they are the people who designed the people smugglers' business model through their policy. There is a direct relationship between the Labor Party's policy going into the 2007 election and the people smugglers' business model. This legislation today seeks to undo that damage and undo that business model.

One of the things that has frustrated me no end—it has driven me to distraction over the last six to eight months—is hearing members of the Australian Labor Party continually talk about the need for compromise and the need for a grand bargain, as though there is some innate virtue in compromise for compromise's sake, as though there is some innate virtue in a grand bargain, as though there is some innate virtue in shaking hands across the chamber, as though there is some innate virtue in making people feel a little better about politicians and the parliament. There is no innate virtue in any of those things. The only virtue is in good policy that shuts down people smugglers and makes it less likely that people are put in harm's way. We on this side of the chamber have never been interested in just reaching an agreement. This should never have been approached on the basis of some sort of industrial negotiation where one side makes an ambit claim and the other meets them halfway or it is treated like haggling over the price of a house in a sale. We have stood firm. No, we are not just going to reach compromise for compromise's sake; we are going to hold and stand firm until the government agrees to good policy and agrees to a return to the policies we had before.

We are part of the way there with this legislation. Offshore processing on Nauru and Manus Island is a good thing, but we still need temporary protection visas and a commitment to turning back the boats where it is safe to do so, because it is not only policy that matters; it is also the strength and resolve of government that matters. Those other measures will, if they are adopted, send the message to the people smugglers that the government again has the strength and resolve to stamp out this evil trade of people smuggling. It will ensure that people are not put in harm's way or advantaged by approaching Australia in an irregular way. The coalition will be supporting this legislation, as my colleagues have indicated. It is important that the chamber as a whole does.

Senator KROGER (Victoria—Chief Opposition Whip in the Senate) (13:25): I, too, rise to make some very brief remarks following the comprehensive and heartfelt contributions of my colleagues on this side of this place on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. Notwithstanding some of the emotional speeches made from the crossbenches, the continued loss of asylum seekers' lives at sea is a matter that fundamentally strikes at the heart of us all. We are at one in our determination to do what we can to ensure the disgraceful practice of people trafficking is stopped—period—and that the most humanitarian approach is taken in dealing with refugees. The coalition has consistently argued for and demanded the adoption of the former Howard government's Pacific solution for one reason and for one reason alone: history has demonstrated that it works. The Pacific solution worked. It is compassionate, notwithstanding the histrionics of those who have decried it in the past and continue to decry it today.

I feel impelled, though, to put on the record a couple of points. I will make them fairly brief because it is important that this legislation be passed today. Firstly, political parties are elected to office to govern. That is something that this Gillard government does not seem to get. It is the responsibility of an elected government to make the necessary tough decisions that are in the interests of all Australians to ensure that we fulfil our international and moral obligations. What worries me most, though, is that, whilst the coalition has continually sought to sit down with the government to discuss the policies that worked under a coalition government, the Gillard government, firstly, refused to do so—

Senator Feeney: You refused to participate in the committee!

The ACTING DEPUTY PRESIDENT ( Senator Fawcett ): Order! I remind senators that speakers have the right to be heard in silence.

Senator KROGER: Thank you, Mr Acting Deputy President. Rather, the Gillard government chose to contract out that responsibility to a committee to make the decisions for it.

The former Chief of the Defence Force, Angus Houston, Michael L'Estrange and Paris Aristotle are all highly respected and eminent individuals, so my comments in no way reflect on them personally. Rather, I believe that the approach that the government took is a damning indictment on the Prime Minister and her cabinet. They were incapable of reaching a solution and needed the involvement of a third party to come up with a proposal—elements of which, I hasten to add, we have been calling for now for some years. This government continues to fail every test when it comes to leadership.

My second point, just in closing, is how incensed I get in this place when I listen to the Greens and some of those on the other side of the chamber who constantly champion the furphy that they are the guardians of the moral high ground—and you all know who you are because you do it consistently in this place. What absolute bunkum! Clearly, they believe that if they say something long enough it becomes a fact. But history will continue to demonstrate that actions and facts actually speak much louder than words.

There would not be one person—not one person—who has not been deeply moved by the images or accounts of men, women and children who have lost their lives at sea. Just as we are concerned about the millions housed in refugee camps across the globe, it is compassion and common sense that drives our support for this bill. Compassion drives our support for a system that seeks to break the people-smuggling model and a system that does not disadvantage those people who seek asylum through the UN sanctioned refugee camps. It is a system that seeks to be fair and equitable, and I support this bill.

Senator MARSHALL (Victoria) (13:31): The modern history of the migration debate in Australia began when 438 Afghani asylum seekers were rescued from a 20-metre wooden fishing boat in international waters by the MV Tampain August 2001. The events following that rescue, the reluctant involvement of Australian Special Forces personnel and the cynical political exercise now known as the 'children overboard affair' are well known to us here, so I will not dwell on them. However, it is necessary to acknowledge these events in order to make sense of where we find ourselves today.

I had hoped that by now, over a decade later, the migration debate would have recovered from its malignant origin. Sadly, the events of the last year, and of the last few weeks in particular, have proven otherwise. As the chair of the Parliamentary Joint Committee on the Christmas Island Tragedy, I have a better understanding than many of the challenges faced by asylum seekers and the risks that they take in their attempts to flee persecution. The tragedy of SIEV221 demonstrated the inherent dangers of the people-smuggling business in a horrific way and at great human cost. But we cannot forget what motivates asylum seekers to face these risks. They are fleeing racial persecution, religious persecution, political persecution, torture and oppression. The decision to board a leaky boat bound for Australia is not a decision that anyone takes lightly.

I cannot honestly say that the legislation we consider today, the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, sits comfortably in the narrative of the Labor Party—a party based on social justice, compassion and the fair go—and it does not sit well with me. I know that many members of the party and of the Australian public more broadly share the sense of disappointment and frustration that I feel today. But, equally, I am not so naive that I can support the continuation of the shameful political deadlock that currently exists—a legislative environment in which we might expect the tragic events of the 2010 Christmas Island tragedy to recur.

That is why I welcome the findings of the report of the Expert Panel on Asylum Seekers; not because I agree with all of their recommendations—because I do not—but because I believe that it at least offers us a way forward. I welcome the report’s proposal to increase Australia’s humanitarian intake to 27,000 people and to build capacity through a cooperative, regional approach. As a party we have long maintained that a regional approach is necessary. This is the real answer and the one that will stand the test of time. I am encouraged by the words of Amnesty International’s Graham Thom, who states:

As long as refugees have little chance of finding safety through official channels many will be forced to seek protection through dangerous unofficial channels. A successful regional approach can only work if refugees and asylum seekers' access to protection is improved, as evenly as possible, across all regional countries.

Amnesty International believes that Australia has a key role to play in developing a regional approach to refugees that in the long term reduces the need for people to flee their homeland, in the medium term reduces the need for refugees to flee countries of first asylum and in the short term provides refugees with more access to official migration routes throughout the region.

He goes on to say:

This approach must never be viewed as a substitute for the long‐established obligation to offer protection to vulnerable people asking for our help.

It is a lack of safe options across the region which forces refugees onto boats to Australia. Improving this situation is absolutely key to stopping people taking dangerous boat journeys.

Australia has no shortage of critics when it comes to our migration policy and no doubt some of this criticism is justified. But we should also acknowledge that the commitment to increase our humanitarian intake will make Australia second only to the United States in refugee resettlement and world leaders on a per capita basis. Australia is and remains a generous country.

I must also put on record my grave concerns about the punitive aspects of the legislation. I understand the need to discourage asylum seekers from undertaking the perilous journey to Australia by boat. And it is clear that the Houston report is well intentioned when it suggests the no-advantage principle as the best means to do this. But, whilst the idiom of 'cruel to be kind' is easy to understand, we cannot allow such simplistic thinking to cloud our judgment on this issue. I am concerned about the effectiveness of the no-advantage principle as a disincentive when asylum seekers are, by their very definition, fleeing serious persecution, often in fear of their lives.

International law requires us to respect the needs of those who seek asylum here, and as a nation we have a responsibility for their protection. I was unsurprised to read in the Age this morning that my concerns are shared by the regional representative of the United Nations High Commissioner for Refugees, Richard Towle. Mr Towle is quoted as stating:

Resettlement is based on individual protection needs, it's not a mathematical formula and it's not based on time spent in a queue … We've got to make sure that if people who are genuine refugees are having to wait for solutions, it's not so long as to cause damage.

I could not agree more. As former member for Fremantle Dr Carmen Lawrence has written:

Not surprisingly, every independent inquiry into immigration detention has drawn attention to the poor mental health of detainees and the particular risks to children's well-being … Such research has revealed high rates of post-traumatic stress disorder, depression, anxiety and panic attacks, attempted suicides and self harm. The longer people are held in detention, the worse the symptoms are likely to be, adding to the already high levels of psychopathology among those who've experienced persecution, harassment, torture and physical assaults.

The very fact that I should feel the need to repeat this is a sign of how low this debate has sunk, but once again I must draw the attention of the chamber to the fact that asylum seekers simply do not have universal access to an orderly migration path or queue. That is a convenient myth, a symptom of the poisonous atmosphere of intolerance and misinformation that continues to pollute this debate. For those refugees who lack access to an orderly migration path, their alternative is to never arrive. This should not be used to justify a policy of arbitrary, indefinite detention, and it is this aspect of the bill that disturbs me the most.

It gives me no satisfaction to support this bill. These last few weeks have been a very difficult time for me and for my Labor Party colleagues. The caucus decision on this matter was not unanimous. Many of us have had great difficulty reconciling this decision with our personal values and I will admit that it conflicts with my own. But, as the party of government, we do not have the luxury of indulging our self-righteousness. And, as the party of government, we are bound to act on this issue, even at our own political cost and against the judgment of some caucus members like myself.

I doubt that there will be a lot of public sympathy for this view. It lacks the immediacy of both the self-serving moral outrage of the Greens Party and the cynical triumphalism of the coalition. But the parliament was called upon to act with maturity in this debate and we had a commitment to make the best of a challenging situation. This legislation is far from perfect and there is still much work to be done and detail to work through. I, along with many of my colleagues, will continue to face the challenge of humanitarian reform of Australia’s migration policy and the challenge of ensuring that we do not lose sight of the fact that asylum seekers are neither a mathematical problem nor pawns in a political game. They are real people, decent people, who arrive on our shores asking only for help and protection for themselves and their families.

Senator MADIGAN (Victoria) (13:40): It has been roughly six weeks since we left this chamber and since we debated this legislation: the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. Quite frankly, I think the debate reached a very low point in this chamber. I sincerely believe that nobody in this place bears any ill will or malice towards asylum seekers, but there has been political gloating on the point we have reached today. We must remember that we are speaking about people; we are not speaking about figures in a book. Even when we debate things in this chamber that affect Australians here today, we are speaking about people and how we affect their lives, their families and their communities. The politicisation of the misery of others is a pretty low point to reach.

Whether it is current Australians, new Australians, refugees, asylum seekers or people who seek humanitarian relief in our country, all people in this country need jobs, they need housing and they want a good environment. It is incumbent upon us to deliver these things in the best possible way that we can. We do not live in a perfect world, and no legislation that comes out of this chamber is perfect, but people in this place genuinely try to do the best that we can. Messrs Houston, Aristotle and L'Estrange are, I believe, honourable men and they have produced a report for this parliament under incredibly difficult circumstances. Now it is up to us to judge that. I believe they have done the very best they could under the circumstances.

In recent times I have visited Villawood detention centre to try to get some understanding of what refugees and asylum seekers experience when they come to our shores. Quite frankly, I would not like to be there. I acknowledge that they are fed and they are housed and everything, but it strikes me that it is a bit like Jurassic Park. I hope that the refugees, the asylum seekers and people seeking humanitarian relief are treated equitably under this legislation and that they are not used as political pawns. I believe that the Senate must continue to review this legislation over the coming months and years to make sure that we deliver a fair, equitable and humane system for all Australians.

Senator FIERRAVANTI-WELLS (New South Wales) (13:43): I also rise to make a contribution in this debate on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, and to put on the record my view as a former shadow parliamentary secretary in this area, having had over my lifetime the benefit of experience in the migration area as a lawyer with the Australian Government Solicitor and having spent a lot of time dealing with constituents in the broader community and sharing their views and concerns about this important issue.

The only way to stop the boats and to end the needless deaths that we are seeing at sea is to adopt fully the coalition's proven record in this area. Yes, we have seen the government finally dragged kicking and screaming to adopt one plank of that policy—that is, offshore processing—but there are two other very important aspects: temporary protection visas and ordering the boats to be turned back when it is safe to do so. In the end, this has been supported—flip-flopped in the past but still supported—by Kevin Rudd prior to the last election. There he was in the Australian a few days before, advocating this policy.

All we have seen by this Labor government is years of 'policy failures'. To use the words of Julia Gillard, every boat arrival was a policy failure. Well, she has been an absolute unmitigated disaster, given what happened under her watch: 22,000 illegal arrivals, 1,000 deaths, harm to our international reputation and a $4.7 billion blow-out. Finally, this week we have seen part of an adoption of policies that worked but, unless you adopt fully the Howard government policies, you will not see the same results. An important feature of that is the temporary protection visa framework.

We saw Senator Evans so effectively dismantle a system. In estimates, I trawled through repeatedly with him and his department the many changes that they effected to this area of policy and we saw that bit by bit it was dismantled, whether it was the detention costs or the paying of legal fees and leaving a debt to the Commonwealth. Over my years, having done my fair share of migration law in the past, I have watched millions and millions of dollars of Australian taxpayers' money just forfeited, and people leave Australia with those debts. Now, even if they leave those debts, they can still apply to come back to this country. I think the taxpayers of Australia should know that. For every piece of dismantling that Senator Evans and those after him undertook, the people smugglers were probably watching it on their own websites, following it via the internet and changing their model accordingly.

However, nothing pales beside the vitriol and the verbal abuse that those of us who stood by went through, maintaining the need for order and process in immigration. The vitriol came from those on the other side and the Greens, and we have always had it and will continue to have it. Today, those positions have been vindicated. But we have not heard one word of remorse from the Prime Minister or those on the opposite side who verbally abused and vilified those of us who have been advocating these policies for a long time. We copped that abuse and now there is nothing from the Prime Minister. As one person said to me recently, 'What would you expect from a woman that is a cross between Lady Macbeth and Lucrezia Borgia?'

The ACTING DEPUTY PRESIDENT ( Senator Fawcett ): Order! Senator Fierravanti-Wells, I remind you it is not appropriate to reflect on the character or nature of the Prime Minister.

Senator FIERRAVANTI-WELLS: Thank you, Mr Acting Deputy President, I withdraw those comments. Immigration has always been about order and process. Millions of people have come to this country and abided by those processes. They have come here after waiting in queues. People who come to this country understand about queue jumping. They understand what it means to wait in those places for up to 10 or 12 years and be the next person in the queue to come to Australia and then to watch somebody jump you in the queue because they have undertaken an illegal process and paid a people smuggler.

As I go out, particularly to those people who have come to Australia, and speak to people who have come via the front door, they understand. It is interesting: I bet some of those constituents have told those opposite that that is how they strongly feel about this issue. There are many migrants in Australia who feel very strongly about this issue and those opposite have finally, obviously, been told by the focus groups brought to this process to—kicking and screaming—change their position. Having said that, even with the passage of this legislation on offshore processing, the question remains: can the government be trusted to properly implement these changes? Only time will tell.

Senator LUDLAM (Western Australia) (13:50): As a number of my colleagues have remarked, it also gives me no pleasure whatsoever to rise and speak in opposition to the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. I will briefly reflect, as many of us have, on the circumstances that brought us here. In 2010, new Prime Minister Gillard delivered a speech on the question of boat arrivals and expressed the need to protect our way of life. Thereby, she bought entirely into this disingenuous conflation of two completely distinct issues, that of asylum seekers—refugees, people fleeing war, violence, ethnic cleansing in our region or other parts of the world—and border protection, as though these were somehow the same issue.

The conflation of those two issues was very effectively developed and deployed by a former Prime Minister, John Howard, and former immigration minister Philip Ruddock. It has been extraordinary listening to contributions from the other side over the last 24 hours celebrating the fact that 'we are back; we were right and we are here again'. Prime Minister Gillard went on to say, 'I understand the anxiety in the community around boat arrivals' and it is on this foundation that the notion that refugees are a threat to our way of life, and that the anxiety around them is therefore justified, should even be talked up or encouraged. All subsequent Labor and coalition discussion has rested on this policy. The ALP has completely accepted the toxic and inaccurate premise of the debate set by the coalition. The premise goes virtually unchallenged within the public pronouncements of the major parties. It has been left to the Greens to put what seems to us so obvious into the public record.

The ethical thing for the new Prime Minister to have done would have been to show leadership on the issue. I think that is what former Prime Minister Rudd and his frontbench had attempted to do in the moves that they made, when they came to power, to formally and legislatively reject the Pacific solution that was in place. Prime Minister Gillard could have continued down that course and she did not. By validating people's fear of this tsunami, as some coalition MPs have said, of illegal arrivals, this flood of people, the queue jumpers—and we heard that phrase again from the speaker before me—Labor has fallen into the trap predicated on an assumption that not only does the Australian public not know any better but we also cannot know any better. It preaches to a base and, I think, a completely wrong understanding of Australian culture and of the Australian tradition of the fair go. I think it sells us all short.

Senator Ian Macdonald interjecting—

Senator LUDLAM: I am going to ignore you, Senator Macdonald, lest I say something that I will regret.

Senator Cash interjecting—

The ACTING DEPUTY PRESIDENT ( Senator Fawcett ): Order! Senators on my left are reminded that senators have the right to be heard in silence.

Senator LUDLAM: The proclamations and the policies from the ALP and the coalition suggest that they believe a solution is something that frightens asylum seekers away from Australia. We have heard a great deal from both sides of the chamber on that premise in the last few days. The problems are that people flee their homelands, that the processes for application abroad are painfully and dangerously slow, if they exist at all, that other countries are ruthlessly cruel to refugees and that the heads of the smuggler rings take advantage of a ready supply of desperate people, to fleece them of their savings and offer them a cramped spot on a voyage that might kill them. Until the major parties publicly accept this entire picture and not just one convenient element of it, there will not be any solution.

We have always opposed Labor's Malaysia solution because it is a people-dumping proposal. Put quite simply, it is a live people trade of 800 asylum seekers—who are to be made an example of to other people who might be seeking to make a voyage, to rot behind barbed wire, effectively forever—in exchange for 4,000 people who had already been accepted as refugees, living freely but not particularly welcome in Malaysia. In August 2001, as senators know, that disastrous people-dumping scheme was rejected by the High Court in a case brought by David Mann of the Refugee and Immigration Legal Centre. Mann is the grandson of refugees who fled the Nazis—with the help of people smugglers. To him, the notion that people could reach Australian waters to claim asylum and then be sent to a third country where the human rights, on the balance of the evidence, would put them in very serious danger was morally and legally repulsive, and fortunately the High Court agreed. The decision not only rendered the Malaysian people-dumping project illegal; it also cast doubt on the legality of all offshore processing, including on Nauru.

For that reason, the Greens opposed Mr Oakeshott's bill, which effectively stripped out what little protections exist in the current law, and we therefore oppose this bill. To support either would have marked a 180-degree turn on long-held principles and policies, and it would have been an offence to reason and decency and a betrayal not only of the people who are seeking refuge here in Australia but also of the many Australians who trusted us with their votes, knowing where we stand.

A real regional solution would involve supporting human rights abroad not only in the countries from which people originally fled—some that we have recently invaded—but also in those countries through which people pass on their way to Australia. That means overhauling Australia's overseas asylum application system so that it is no longer prohibitively slow, and significantly increasing Australia's humanitarian intake. Some of these recommendations were taken up by the recent expert panel and some of these recommendations, we hope, will not be lost in the appalling furore that has erupted in this parliament over the last few days.

The UNHCR's annual budget in Indonesia is around $6 million. If the government and the opposition are serious about saving lives, why not support the UNHCR in providing a safe pathway to asylum for genuine refugees. Most of the people who do find a way here are genuine refugees—as everybody knows and I think most senators on both sides acknowledge this—and are seeking to escape the kind of violence that we would not subject ourselves or our families to were it occurring here.

The word 'queue' is thrown around to depict boat arrivals as sneaky and unjust—or even unchristian, one of the strangest contributions to the debate that I have heard so far. In Indonesia, the wait in the queue to be resettled from refugee camps is 76 years. An immediate increase in UNHCR funding of at least $10 million from Australia would at least increase the capacity to assess asylum applications. This was rejected by the major parties.

Early last year a Hazara refugee in the Leonora detention centre told a journalist this:

The people of Australia must understand we are not criminals, we are homeless. If peace in Afghanistan come back, we can’t stay (in Australia) because we love our country, we all want to help our nation. If Afghanistan have peace—no body come across a big ocean with 99 per cent chance of death for 1 per cent chance, in small boat come here and many Afghani died in Malaysia to Indonesia trip, this ocean … All Afghani people take risk and our life risk because they want to work here for peace … Their life in danger—because of this they cross the ocean to reach here and want protected in Australia.

That is something that has been so completely lost in this debate. How dangerous and how serious does your deterrent have to be? If you want to break the so-called business model of the people smugglers you need to be scarier than drowning, war, ethnic cleansing and torture, and more of a deterrent than the things that these people are justifiably fleeing from. We all know that that simply will not happen.

These processes that are combined with the oppressive and dangerous conditions in Sri Lanka, Pakistan, Afghanistan, Iran, Iraq and other states from which people arrive here seeking refuge provide the customers for the so-called business model of the people smugglers. Instead of making the alternative more accessible so that people do not climb onto these vessels in the first place, the major parties' approach is to make the smugglers' path undesirable by making the destination scarier than war, ethnic cleansing, torture, systematic rape and violence that these people are fleeing. The major parties believe a successful policy is one that makes refugees believe that they are better off facing repression in Iran, violence in Afghanistan or persecution in Malaysia than they are by reaching Australia's waters by boat. We have reached a point where this is how Labor and the coalition define success and history I believe will see it differently.

Debate interrupted.

Senator WONG (South Australia—Minister for Finance and Deregulation) (15:34): I present three government’s responses to committee reports as listed at item 13 on today's Order of Business. In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard and to move a motion in relation to the document.

Leave granted.

The documents read as follows—

Government response to Senate Legal and Constitutional Affairs Committee report

Combating the Financing of People Smuggling and Other Measures Bill 2011

Introduction

On 3 March 2011 the Senate referred the Combating the Financing of People Smuggling and Other Measures Bill 2011, for inquiry and report.

The Committee held a public hearing on 16 March 2011 taking evidence from officers of the Department and AUSTRAC. The Committee tabled its report on 21 March 2011 with three recommendations.

Recommendation 1: The committee recommends that, as a matter of priority, the Australian Transaction Reports and Analysis Centre establish appropriate memoranda of understanding for the sharing of intelligence with the new designated agencies outlined in the Bill.

Recommendation 2: The committee recommends that the Attorney-General's Department review relevant options with a view to introducing an appropriate oversight mechanism to monitor the handling of credit information for the electronic verification of identity pursuant to the Bill.

Recommendation 3: The committee recommends that the Senate pass the Bill, noting recommendations 1 and 2.

The Bill was subsequently passed by both Houses of Parliament and received Royal Assent on 28 June 2011.

As the recommendations were not addressed during the debate of legislation, a response has not been provided to the Committee about the Government's position in relation to its recommendations. This document forms the Government's response.

Government response to Recommendations

Recommendation 1

The committee recommends that, as a matter of priority, the Australian Transaction Reports and Analysis Centre (AUSTRAC) establish appropriate memoranda of understanding for the sharing of intelligence with the new designated agencies outlined in the Bill.

The Government supports this recommendation and has taken steps to implement it.

Memoranda of understanding (MOUs) have been finalised with the Department of Foreign Affairs and Trade, the Defence Imagery and Geospatial Organisation and the Office of National Assessments, and MOUs with the Defence Signals Directorate and Defence Intelligence Organisation are close to finalisation.

Recommendation 2

The committee recommends that the Attorney-General's Department (AGD) review relevant options with a view to introducing an appropriate oversight mechanism to monitor the handling of credit information for the electronic verification of identity pursuant to the Bill.

AGD has reviewed relevant options for an oversight mechanism to monitor the handling of credit information pursuant to Recommendation 2.

A breach of the verification of identity provisions contained in the Bill will constitute an interference with privacy and a person affected by an alleged breach may complain to the Office of the Australian Information Commissioner (OAIC) in accordance with the Privacy Act 1988.

The Privacy Act 1988 has specific mechanisms in place to regulate the use of credit reporting data by credit reporting agencies. AGD does not consider that the Anti Money Laundering and Counter Terrorism Financing Act 2006 is the appropriate vehicle to further expand on the current obligations of credit reporting agencies.

Accordingly, AGD considers that no further action is necessary.

Recommendation 3

The committee recommends that the Senate pass the Bill, noting recommendations 1 and 2.

The Bill was passed by the Senate on 16 June 2011 and received Royal Assent on 28 June 2011.

Government response to the Senate Legal and Constitutional Affairs Committee Inquiry into the National Classification Scheme

At the time of the Senate Committee undertaking its Inquiry, and prior to its report being finalised, the Government referred the National Classification Scheme (NCS) to the Australian Law Reform Commission (ALRC) for review. Recommendation 30 of the Committee's report is that the ALRC be directed to consider the findings, proposals and recommendations of the Committee's report.

The ALRC review was considered necessary to modernise the system of classification in Australia and allow it to keep pace with developments in technology now and into the future. When the current NCS commenced in 1995, classifiable content and the way it was delivered to consumers was relatively static.

The ALRC review was designed to consider not only classification categories, but the whole classification system including the legislative framework to ensure it continues to be effective in the 21st century.

The ALRC was considered the most appropriate body to conduct the review as it had previously conducted an inquiry into laws relating to classification and censorship in 1991. The ALRC's 1991 Report established the basis for the current NCS.

The terms of reference for the ALRC's 2011-12 review (which were subject to public consultation prior to being finalised) stated:

Having regard to:

it being twenty years since the Australian Law Reform Commission (ALRC) was last given a reference relating to Censorship and Classification

the rapid pace of technological change in media available to, and consumed by, the Australian community

the needs of the community in this evolving technological environment

the need to improve classification information available to the community and enhance public understanding of the content that is regulated

the desirability of a strong content and distribution industry in Australia, and minimising the regulatory burden

the impact of media on children and the increased exposure of children to a wider variety of media including television, music and advertising as well as films and computer games

the size of the industries that generate potentially classifiable content and potential for growth

a communications convergence review, and

a statutory review of Schedule 7 of the Broadcasting Services Act 1992 and other sections relevant to the classification of content

I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), State and Territory Enforcement legislation, Schedules 5 and 7 of the Broadcasting Services Act 1992, and the Intergovernmental Agreement on Censorship and related laws continue to provide an effective framework for the classification of media content in Australia.

Given the likelihood of concurrent Commonwealth reviews covering related matters as outlined above, the Commission will refer relevant issues to those reviews where it would be appropriate to do so. It will likewise accept referral from other reviews that fall within these terms of reference.

Such referrals will be agreed between the relevant reviewers.

1. In performing its functions in relation to this reference, the Commission will consider:

i. relevant existing Commonwealth, State and Territory laws and practices

ii. classification schemes in other jurisdictions

iii. the classification categories contained in the Classification Act, National Classification Code and Classification Guidelines

iv. any relevant constitutional issues, and

v. any other related matter.

2. The Commission will identify and consult with relevant stakeholders, including the community and industry, through widespread public consultation. Other stakeholders include the Commonwealth Attorney-General's Department, the Department of Broadband, Communications and the Digital Economy, the Australian Communications and Media Authority, the Classification Board and Classification Review Board as well as the States and Territories.

The ALRC reported to Government on 29 February 2012 and the Government released, via tabling in the Parliament, the final report on 1 March, 2012.

The current NCS is a cooperative scheme between the Commonwealth and all state and territory governments. Under the Intergovernmental Agreement that underpins the scheme, the Commonwealth has agreed to consult states and territories about any meaningful changes to the scheme. Indeed, the current Commonwealth legislation has unanimous agreement requirements in relation to certain aspects of the scheme such as proposed changes to the classification categories and Classification Guidelines.

Consequently, the Commonwealth has sought the views of all States and Territories about the ALRC Report. Once those comments are received, the Commonwealth will be able to further develop its position on the ALRC recommendations (incorporating consideration of Senate Committee recommendations where appropriate) and, in due course, finalise the Government response to the ALRC Report.

In developing its response, the Government will also give consideration to how the ALRC recommendations interact with those of the Convergence Review. Although there are discrete components of each report, there is also substantial overlap in some key respects.

Since the tabling of the ALRC Report, the Government has been able to consider how the Senate Committee's recommendations might interact with those of the ALRC. The comments in relation to each recommendation below are made in that context.

Recommendation 1

The committee recommends that an express statement should be included in the National Classification Code which clarifies that the key principles to be applied to classification decisions must be given equal consideration and must be appropriately balanced against one another in all cases. Currently, these principles are:

adults should be able to read, hear and see what they want;

minors should be protected from material likely to harm or disturb them;

everyone should be protected from exposure to unsolicited material that they find offensive;

community concerns should be taken into account in relation to:

depictions that condone or incite violence, particularly sexual violence; and

the portrayal of persons in a demeaning manner.

Government Response – noted

The National Classification Code (the Code) states that classification decisions are to give effect, as far as possible, to the four guiding principles that the Committee outlines in Recommendation 1. This requires the Classification Board to give equal consideration to the principles in the Code to the extent possible in each decision-making circumstance. What principles should underpin classification legislation, and whether those considerations should be weighted, or not, will be considered in the context of the Government's response to the ALRC Review of the NCS.

Recommendation 2

Further to Recommendation 1, the committee recommends that the fourth key principle in the National Classification Code should be expanded to take into account community concerns about the sexualisation of society, and the objectification of women.

Government Response – noted

See response to Recommendation 1.

Recommendation 3

The committee notes that there has been no further consideration by the Senate of the Senate Environment, Communications and the Arts Committee's 2008 report, Sexualisation of children in the contemporary media. The committee recommends that the Senate should, as a matter of urgency, establish an inquiry to consider the progress made by industry bodies and others in addressing the issue of sexualisation of children in the contemporary media; and, specifically, the progress which has been made in consideration and implementation of the

recommendations made in the Sexualisation of children in the contemporary media report.

Government Response – noted

This recommendation is directed at the Senate.

Recommendation 4

The committee recommends that the Guidelines for the Classification of Films and Computer Games and the Guidelines for the Classification of Publications 2005 should be revised so that the preamble to both sets of guidelines expressly states that the methodology and manner of decision-making should be based on a strict interpretation of the words in the respective guidelines.

Government Response – not agree

The Classification Guidelines (the Guidelines) are not 'self-standing' but are part of a package of legislation consisting of the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), the Code and the Guidelines. In Adultshop.Com Ltd v Members of the Classification Review Board (2008) the Court discussed the relationship between the Act, the Code and the Guidelines and confirmed this view noting that the Guidelines need to be read in conjunction with the Code.

Section 9 of the Classification Act provides that publications, films and computer games are to be classified in accordance with the Code and the Guidelines. The Act contains certain matters that the Board must also take into account in making decisions on the classification of a publication, film or computer game, including those set out in s11.

The ALRC has made recommendations about future classification instruments, recommendation 9-3 in particular.

Recommendation 5

The committee recommends that the emphasis on context and the assessment of impact should be removed as principles underlying the use and application of the Guidelines for the Classification of Films and Computer Games.

Government Response – not agree

Consideration of context and impact are crucial to the making of classification decisions. In the media classification environment, context refers to the circumstances that surround a particular event or situation and impact is the influence or effect upon an audience (for the purpose of determining whether content should be classified at a lower or higher classification). A classifiable element such as nudity in the context of a documentary about the anatomy of the human body would warrant an entirely different classification rating to nudity in a film mainly concerned with sex. Similarly, a classifiable element such as drug use will have a different impact, and warrant a different classification, depending on the type of drug and whether the depiction is discreet or explicit.

See also response to Recommendation 4.

Recommendation 6

The committee recommends that the Australian Government introduce Standing Community Assessment Panels to assist in the determination of community standards for the purpose of classification decision-making.

Government Response – noted

Classification Board Members are appointed to be broadly representative of the Australian Community. They are appointed in consultation with participating Ministers in the NCS and must not hold office for a total of more than 7 years.

Historically, Community Assessment Panels (CAPs) are people from the community taking part in focus group sessions who are recruited to represent a range of characteristics, across such criteria as age, gender, family status and ethnicity. They view media content and carry out classification exercises by the same methods and using the same decision-making tools as the Classification Board. CAPs have been engaged periodically to test the degree to which the decisions of the Classification Board are in line with community standards.

As part of its review, the ALRC undertook an exercise involving members of the community viewing content and reacting to it. The report of that aspect of the review can be found at: http://www.alrc.gov.au/publications/community-attitudes-higher-level-media-content-community-and-reference-group-forums-con.

The ALRC made recommendations about research and community standards, namely Recommendation 9-4 (a) to (e). The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 7

The committee recommends that the classification of artworks should be exempt from application fees.

Government Response – noted

The ALRC made the following relevant recommendations:

The National Classification Scheme should be based on a new Act, the Classification of Media Content Act. The Act should provide, among other things, for:

(a) what types of media content may or must be classified;

(b) who should classify different types of media content;

(c) a single set of statutory classification categories and criteria applicable to all media content;

(d) access restrictions on adult content;

(e) the development and operation of industry classification codes; and

(f) the enforcement of the National Classification Scheme, including through criminal, civil and administrative penalties for breach of classification laws (Recommendation 5-2)

The Classification of Media Content Act should provide a definition of 'exempt content' that captures all media content that is exempt from the laws relating to what must be classified. The definition of exempt content should capture the traditional exemptions, such as for news and current affairs programs. The definition should also provide that films and computer games shown at film festivals, art galleries and other cultural institutions are exempt. Providers of this content should not be exempt from obligations to take reasonable steps to restrict access to adult content (Recommendation 6-3)

Beyond these, the ALRC did not specifically recommend that artworks be classified.

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 8

The committee recommends that the Australian Government, through the Standing Committee of Attorneys-General, pursue with relevant states the removal of the artistic merit defence for the offences of production, dissemination and possession of child pornography.

Government Response – agree

The Attorney-General's Department understands that artistic merit is no longer a defence to child pornography in NSW. The defence was removed in NSW from s 91G of the Crimes Act 1900.

The change aligned NSW child pornography laws with the Commonwealth, but means that NSW is inconsistent with other states and territories. This could be problematic where charges are laid for offences taking place in various jurisdictions.

The Commonwealth will raise the inconsistency issue with the Standing Committee of Law and Justice.

Recommendation 9

The committee recommends that provision be made in the Classification Act 1995 for an exemption for cultural institutions, including the National Film and Sound Archive, to allow them to exhibit unclassified films. This exemption should be subject to relevant institutions self-classifying the material they exhibit and the Classification Review Board providing oversight of any decisions in that regard.

Government Response – noted

Section 5B of the Classification Act already allows for films to be exempt from classification if they are of a community or cultural type. There is also a film festival exemption scheme that allows festivals to screen unclassified films under certain conditions, however, exemptions are generally granted under the condition that each film is to be screened a maximum of four times during the course of a film festival/event and that audiences are restricted to age 18+.

The ALRC made a recommendation about exempting from classification films and computer games screened or demonstrated by certain entities including cultural institutions, namely Recommendation 6-3.

The ALRC also recommended that, under the proposed new NCS, the Classification Review Board cease to operate (Recommendation 7-9).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

See also response to Recommendation 7.

Recommendation 10

The committee recommends that the Australian Government take a leadership role through the Standing Committee of Attorneys-General in requesting the referral of relevant powers by states and territories to the Australian Government to enable it to legislate for a truly national classification scheme.

Government Response – noted

The ALRC made the following relevant recommendations:

The Classification of Media Content Act should be enacted pursuant to the legislative powers of the Parliament of Australia (Recommendation 15-1).

The Classification of Media Content Act should express an intention that it cover the field, so that any state legislation operating in the same field ceases to operate, pursuant to s 109 of the Constitution (Recommendation 15-2).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 11

In the event that a satisfactory transfer of powers by all states and territories is not able to be negotiated within the next 12 months, the committee recommends that the Australian Government prepare options for the expansion of the Australian Government's power to legislate for a new national classification scheme.

Government Response – noted

See response to Recommendation 10.

Recommendation 12

The committee recommends that, as a matter of priority, the Standing Committee of Attorneys-General should consider the development of uniform standards for the display and sale of material with a Restricted classification.

Government Response – noted

Consistency across jurisdiction is desirable for the consumer, industry and for compliance monitoring.

The ALRC made recommendations that are relevant to sale, display and restriction of access to content, in particular: recommendations 5-2, 8-5, 10-1 to 10-4 and 13-2. Consistency of laws and classification obligations nationally was also a key consideration for the ALRC in making recommendations 15-1 and 15-2 for a Commonwealth-only NCS.

The ALRC also recommended renaming the 'Refused Classification' category of content 'Prohibited' (Recommendation 11-1).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 13

The committee recommends that:

Category 1 and 2 Restricted publications, and R18+ films, where displayed and sold in general retail outlets, should only be available in a separate, secure area which cannot be accessed by children; and

the exhibition, sale, possession and supply of X18+ films should be prohibited in all Australian jurisdictions.

Government response – noted

In relation to the first bullet point of this recommendation, see response to Recommendation 12.

In relation to the second bullet point of this recommendation, the ALRC made the following recommendations:

The Classification of Media Content Act should provide that content providers should take reasonable steps to restrict access to adult content that is sold, screened, provided online or otherwise distributed to the Australian public. Adult content is:

(a) content that has been classified R 18+ or X 18+; or

(b) unclassified content that, if classified, would be likely to be classified R 18+ or X 18+.

The Classification of Media Content Act should not mandate that all adult content must be classified (Recommendation 10-1)

The Classification of Media Content Act should provide the Regulator with the power to issue 'restrict access notices' to providers of adult content. For the purpose of issuing these notices, the Regulator should be empowered to determine whether the content is adult content (Recommendation 10-2).

The Classification of Media Content Act should provide that the reasonable steps that content providers must take to restrict access to adult content may be set out in:

(a) industry codes, approved and enforced by the Regulator; and

(b) standards, issued and enforced by the Regulator.

These codes and declarations may be developed for different types of content, content providers and industries, but could include:

(a) how and where to advertise, package and display hardcopy adult content;

(b) the promotion of parental locks and user-based computer filters;

(c) how to confirm the age of persons accessing adult content online; and

(d) how to provide warnings online (Recommendation 10-3).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 14

The committee recommends that, as a matter of priority, the Commonwealth and the states and territories should establish a centralised database to provide for information-sharing on classification enforcement actions.

Government Response – noted

In February 2011, the then Minister for Justice wrote to Police Ministers and the Minister for Employment and Economic Development in Queensland requesting bi-annual reports on compliance and enforcement action taken in relation to classification laws. This initiative was agreed to by the Commonwealth, States and Territories at the Classification Enforcement Contacts Forum 2010.

These reports are now being compiled by the Classification Liaison Scheme (CLS) which is administered by the Commonwealth Attorney-General's Department and is responsible for collating and sharing the information received.

The Government will consider the Committee's recommendation in developing the response to the ALRC recommendations and, in particular, in relation to the role of the states and territories under a new NCS.

Recommendation 15

The committee recommends that the Classification Liaison Scheme should substantially increase its compliance and audit-checking activities in relation to, for example, compliance with serial classification declaration requirements.

Government Response – noted

The Classification Board currently has responsibility for conducting audits of serial declarations. All serial declarations are audited during the term of the declaration.

CLS compliance checks have increased from 701 in 2007/08 to 917 in 2010/11.

The Government will consider the Committee's recommendation in developing the response to the ALRC recommendations and, in particular, in relation to the role and size of the CLS under a new NCS.

Recommendation 16

The committee recommends that the Classification Liaison Scheme should have at least one representative in each state and territory.

Government response – noted

The ALRC envisages a new approach to compliance and enforcement in relation to classification matters. In particular it makes the following recommendations:

The Classification of Media Content Act should provide for enforcement of classification laws under Commonwealth law. (Recommendation 16-1)

The Classification of Media Content Act should provide a flexible range of compliance and enforcement mechanisms allowing the Regulator, depending on the circumstances, to:

(a) issue notices to comply with provisions of the Act, industry codes or standards;

(b) accept enforceable undertakings;

(c) pursue civil penalty orders;

(d) refer matters for criminal prosecution; and

(e) issue infringement notices. (Recommendation 16-2)

The Classification of Media Content Act should provide for the imposition of criminal, civil and administrative penalties in relation to failing to comply with:

(a) notices of the Regulator;

(b) an industry code or standard;

(c) restrictions on the sale, screening, online provision and distribution of media content;

(d) statutory obligations to restrict access to media content; and

(e) statutory obligations to classify and mark media content. (Recommendation 16-3)

The Classification of Media Content Act should require the Regulator to issue enforcement guidelines outlining the factors it will take into account and the principles it will apply in exercising its enforcement powers. (Recommendation 16-4)

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 17

The committee recommends that the Classification Liaison Scheme should be charged with responsibility for establishing and maintaining the centralised database to provide for information-sharing on classification enforcement actions, as proposed in Recommendation 14.

Government Response – noted

See response to Recommendations 14 and 16.

Recommendation 18

The committee recommends that the Classification Liaison Scheme should provide assistance to state and territory law enforcement agencies in relation to enforcement actions for failure to respond to call-in notices issued by the Director of the Classification Board.

Government Response – agree

This recommendation is already implemented. CLS officers currently provide assistance to law enforcement agencies in relation to referrals from the Director of the Classification Board of non-compliance with a call-in notice, or any other classification matter. Currently, CLS officers request the relevant State and Territory police to enforce breaches of call-in notices. All of the evidence establishing an offence will be presented by CLS. Such CLS assistance is prioritised and can also include presentations on content, offences and evidentiary certificates, as well as provision of witness statements, on site assistance and any other help requested.

Generally, CLS Officers meet with the nominated Classification Enforcement Contact in each law enforcement agency when conducting compliance checks in their jurisdiction.

Recommendation 19

The committee recommends that more detailed information should be included in the Attorney-General's annual report about the operations of the Classification Liaison Scheme.

Government Response – agree

Currently the annual report of the Attorney-General's Department provides information about the number of compliance checks conducted by CLS Officers.

It would be possible to include more detailed information about CLS. Further information about the activities undertaken by CLS can be included such as presentations delivered, meetings held and referrals. This will be included in future annual reports.Recommendation 20

The committee recommends that the Australian Government should increase the size of, and commensurate funding to, the Classification Liaison Scheme as a matter of priority.

Government Response – noted

See response to Recommendation 16.

Recommendation 21

The committee recommends that the Australian Government should, through the Standing Committee of Attorneys-General, signal its intention to make enforcement actions for failing to respond to call-in notices a matter of priority.

Government Response – agree

Under the current Scheme, each individual jurisdiction determines its own enforcement priorities. Enforcement of failure to comply with a call-in is not a matter for the Commonwealth but is a matter for States and Territories. The Commonwealth refers any non-compliance to States and Territories as a matter of course.

The then Minister for Justice wrote to States and Territories in February 2009 seeking their cooperation in addressing the low levels of compliance with classification enforcement laws.

The Government will raise this issue through the Standing Council on Law and Justice.

See also response to Recommendation 16.

Recommendation 22

The committee recommends that, to the extent possible, the National Classification Scheme should apply equally to all content, regardless of the medium of delivery.

Government Response – agree

The ALRC and the Convergence Reviews have considered these issues as central to future regulation of media content. In particular, recommendation 5-1 and 5-2 of the ALRC Report and recommendation 1(a) of the Convergence Review which states:

1 a) Parliament should avoid enacting legislation that either favours or disadvantages any particular communications technology, business model or delivery method for content services.

The Government agrees in principle but will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 23

The committee recommends that industry codes of practice under current self-regulatory and co-regulatory schemes, including those under the Broadcasting Services Act 1992, the ARIA/AMRA Labelling Code and the advertising industry, should be required to incorporate the classification principles, categories, content, labelling, markings and warnings of the National Classification Scheme. The adoption of these measures by industry should be legally enforceable and subject to sanctions.

Government Response - noted

In chapter 6 of the report on the review of the NCS, the ALRC makes recommendations about the content (irrespective of its method of deliver or access) that should be classified under a new NCS as follows:

The Classification of Media Content Act should provide that feature films and television programs that are:

(a) likely to have a significant Australian audience, and

(b) made and distributed on a commercial basis,

should be classified before content providers sell, screen, provide online, or otherwise distribute them to the Australian public. The Act should provide for platform-neutral definitions of 'feature film' and 'television program' and illustrative examples. Examples of television programs may include situation comedies, documentaries, children's programs, drama and factual content. (Recommendation 6–1)

The Classification of Media Content Act should provide that computer games that are:

(a) likely to be classified MA 15+ or higher; and

(b) likely to have a significant Australian audience; and

(c) made and distributed on a commercial basis,

should be classified before content providers sell, screen, provide online, or otherwise distribute them to the Australian public.

The Act should provide for platform-neutral definitions of 'computer game' and illustrative examples. (Recommendation 6–2)

In chapter 8 of its report on the review of the NCS, the ALRC discusses advertising and concludes that advertising should not be brought within the scope of the NCS. It makes a specific recommendation for advertisements for classifiable content to be managed under the existing self-regulatory arrangements for advertising and amendments to advertising codes.

Beyond these recommendations, the ALRC does not specifically recommend that self-regulated media content be required to adopt the classification and other related obligations of the NCS.

Instead, the ALRC made the following suggestion:

The Classification of Media Content Act should enable the Regulator to approve industry codes that provide for the voluntary classification and marking of content that is not required to be classified. The Regulator should encourage the development of such codes for:

(a) computer games likely to be classified below MA 15+;

(b) magazines likely to be classified R 18+ or X 18+; and

(c) music with a strong impact. (Recommendation 6–4)

Chapter 13 of the ALRC Report further deals with possible industry Codes of Practice making the following recommendations:

The Classification of Media Content Act should provide for the development of industry classification codes by sections of industry or persons involved in the production and distribution of media content; and for the Regulator to request that a body or association representing a particular section of industry develop a code. (Recommendation 13-1)

Industry classification codes may include provisions relating to:

(a) methods of restricting access to certain content;

(b) the use of classification markings;

(c) methods of classifying media content, including by authorised industry classifiers;

(d) guidance on the application of statutory classification criteria;

(e) maintaining records, reporting classification decisions and quality assurance;

(f) protecting children from certain content;

(g) providing consumer information in a timely and clear manner;

(h) providing a responsive and effective means of addressing community concerns, including complaints handling; and

(i) reporting to the Regulator on the administration of the code. (Recommendation 13-2)

The Classification of Media Content Act should enable the Regulator to approve an industry classification code if satisfied that:

(a) the code is consistent with statutory obligations to classify and restrict access to media content and statutory classification categories and criteria;

(b) the body or association developing the code represents a particular section of the media content industry; and

(c) there has been adequate public and industry consultation on the code. (Recommendation 13-3)

The Classification of Media Content Act should enable the Regulator to determine an industry standard if:

(a) there is no appropriate body or association representing a relevant section of industry; or

(b) a request to develop an industry code is not complied with. (Recommendation 13-4)

The Classification of Media Content Act should enable the Regulator to enforce compliance with a code against any participant in the relevant section of the media content industry, where an industry classification code relates to media content that must be classified or to which access must be restricted. (Recommendation 13-5)

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 24

The committee recommends that industry bodies wishing to exercise classification decision-making functions should be required to be accredited by the Australian Government.

Government Response – noted

In the ALRC Report, the following recommendations are relevant to the Committee's recommendation:

The Classification of Media Content Act should enable the Regulator to determine, of the content that must be classified, what content must be classified by the Classification Board. The determination should be set out in a legislative instrument. (Recommendation 7-1)

The Classification of Media Content Act should provide that, other than media content that must be classified by the Classification Board, media content may be:

(a) classified by the Classification Board;

(b) classified by an authorised industry classifier; or

(c) deemed to be classified because it has been classified under an authorised classification system. (Recommendation 7-4)

The Classification of Media Content Act should provide that industry classifiers must have completed training approved by the Regulator and be authorised by the Regulator to classify media content. (Recommendation 7-5)

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 25

The committee recommends that the Classification Board should be responsible for the development of a content assessor's accreditation, including formalised training courses for all industries covered under the National Classification Scheme.

Government Response – agree

The Classification Act already provides that the Director of the Classification Board may authorise individuals to assess and make recommendations on the classification and consumer advice for certain material. This includes the additional content for a previously classified film or exempt film (s 22D); television series and series related content (s14B); and computer games (s17 (3-5)). These are known as the Additional Content Assessor scheme (ACA); the Authorised Television Series Assessor scheme (ATSA); and the Authorised Assessor Computer Games scheme (AACG). Section 31(3)(a) of the Act provides that the Director of the Classification Board may authorise a person to make assessments of the likely classification of unclassified films or computer games for advertising purposes. This is the Authorised Advertising Assessor (AAA) scheme.

In order to become an authorised assessor, a person must complete the relevant training course. Courses are devised by the Attorney-General's Department in consultation with the Classification Board and must be approved by the Director. Courses are conducted by training officers from the Attorney-General's Department experienced in assessing material and making classification recommendations to the Classification Board.

Once training has been satisfactorily completed, trainees receive a certificate signed by the Director granting them Authorised Assessor status.

The Department also runs courses for distributors of telecommunications media to become Trained Content Assessors as provided for under Schedule 7 of the Broadcasting Services Act 1992.

ALRC Recommendation 7-5 is also relevant here.

Although the Committee's recommendation is already implemented, the Government will consider the underlying policy considerations when developing the Government response to the ALRC recommendations.

Recommendation 26

The committee recommends that the accreditation of content assessors should be subject to disqualification as a result of poor performance.

Government Response – agree

Under the current authorised assessor schemes, individuals can have their authorisation revoked. For example, under s 5 of the Classification (Authorised Television Series Assessor Scheme) Determination 2008, the Director may revoke an authorisation of a person as an

ATSA if that person submits an assessment that is misleading, incorrect or grossly inadequate.

The ALRC recommends that the Regulator should be enabled to, amongst other things, revoke the authorisation of industry classifiers (Recommendation 7-12).

Although the Committee's recommendation is already implemented, the Government will consider the underlying policy considerations when developing the Government response to the ALRC recommendations.

Recommendation 27

The committee recommends that transgressions of classification requirements within codes of practice by industry participants should, if verified by the Classification Board, be punishable by substantial monetary fines.

Government Response – noted

See response to Recommendation 16.

Recommendation 28

The committee recommends that the terms of appointment for members of the Classification Board and the Classification Review Board should be for a maximum period of five years, with no option for reappointment.

Government Response – noted

Appointments to the Classification Board are currently made on the basis of a broad cross-section of community representation. This must be balanced with the needs of industry by ensuring consistent standards are maintained irrespective of the makeup of the Board. The 1991 ALRC Review of the classification scheme recommended that Classification Board member terms be limited to a maximum of 7 years.

The ALRC has recommended the retention of an independent classification board but is silent about the appropriate length of term for members.

The ALRC makes a number of recommendations about the role of the Classification Board in relation to decision-making and benchmarking (for example, Recommendations 7-2 and 7-3). It also recommends that the Classification Review Board cease to operate in the new NCS (Recommendation 7-9).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 29

The committee recommends that the Australian Government should establish a 'Classification Complaints' clearinghouse where complaints in relation to matters of classification can be directed. The clearinghouse would be responsible for:

• receiving complaints and forwarding them to the appropriate body for consideration;

• advising complainants that their complaint has been forwarded to a particular organisation for consideration; and

• giving complainants direct contact details and an outline of the processes of the organisation to which the complaint has been forwarded.

Government Response – noted

Recommendations 13-2, 14-1 and 14-2 of the ALRC Report are relevant to this recommendation.

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 30

The committee recommends that the Attorney-General should specifically direct the ALRC to consider, as part of its current review of the National Classification Scheme, all the findings, proposals and recommendations put forward in this report.

Government Response – agree

This was done by the then Minister for Justice on 12 September 2011, and the Committee was advised at this time.

Australian Government Response to the Joint Committee of Public Accounts and Audit Report No. 427 Inquiry into National Funding Agreements

August 2012

General Comments

The Australian Government agrees with the broad thrust of the report. The Intergovernmental Agreement on Federal Financial Relations (IGA FFR), which commenced in 2009 and establishes the framework for the Commonwealth's financial relations with the States and Territories (the States), represents the single most significant shift in Commonwealth-State financial arrangements in decades.

Previously, federal financial relations were characterised by the Commonwealth placing a high degree of prescription on a large number of payments to the States, which constrained flexibility and innovation in service delivery. The new federal financial relations framework (FFR framework) provides States with flexibility to deliver quality services where they are most needed. It also increases governments' accountability to the public through a focus on the achievement of outcomes, clearer specification of roles and responsibilities, and enhanced public performance reporting. The Council of Australian Governments (COAG) Reform Council's 2011 report on the progress of the COAG reform agenda found that governments have made significant progress in realising many of the institutional features of the IGA FFR.

The Commonwealth has taken a range of steps to support the realisation of the IGA FFR. In 2010 the Commonwealth led, in conjunction with the States, a major review of agreements under the IGA FFR (the 'Heads of Treasuries Review'). Following the review, the Commonwealth has led work to improve performance frameworks in the National Agreements, to ensure that progress is measured and all jurisdictions are clearly accountable to the public and COAG for their efforts. To ensure the necessary cultural change to embed the FFR framework occurs across Commonwealth agencies, Commonwealth central agencies developed comprehensive guidance material (the 'Drafters' Toolkit') to assist portfolio agencies in drafting new agreements under the IGA FFR.

Further information is provided in response to the recommendations.

Response to the Recommendations

Recommendation No. 1

The Committee recommends that the Department of Finance and Deregulation examine the interaction between the new grants framework and grant payments delivered under the Intergovernmental Agreement on Federal Financial Relations. The report should propose options to remove inconsistencies and improve governance arrangements for all grants provided to States and Territories (States).

A copy of the report should be provided to the Joint Committee of Public Accounts and Audit (JCPAA), with the Government's Response to this recommendation—and both should be made publicly available.

Response

The Government disagrees with the recommendation. The interaction between the Financial Management and Accountability Act 1997 (FMA Act) and the IGA FFR has already been examined as part of the Heads of Treasuries (HoTs) Review, in consultation with the Australian National Audit Office (ANAO) and the Department of Finance and Deregulation. The Treasury has used this Review to develop and disseminate new guidance to Commonwealth line agencies.

Both frameworks contain accountability requirements which reflect the nature of the funding provided. The IGA FFR framework is focussed on giving the States flexibility in the achievement of outcomes for which funding is provided by the Commonwealth. On the other hand, the range of programs that fall under the Commonwealth grants framework is diverse and their administration requires the careful exercise of judgement in applying the key principles for grants administration, as articulated in the Commonwealth Grant Guidelines (CGGs). This results in different accountability requirements depending on the nature, size and purpose of the granting activity.

The Commonwealth grants policy framework is underpinned by the CGGs, which were introduced from 1 July 2009. The CGGs contain mandatory requirements and better practice guidance designed to promote transparency and establish a robust accountability framework around grants administration in the Commonwealth. Payments made under the IGA FFR have been specifically excluded from the definition of "grant" under the Financial Management and Accountability Regulations 1997 and, as a result, from the CGGs, on the basis that separate accountability mechanisms exist under that framework to manage those payments effectively in the context of Commonwealth-State relations.

Where States obtain Commonwealth grant funding through programs that are not covered by the IGA FFR, for example, through competitive or targeted grant processes, it is appropriate that they are subject to the same accountability requirements as other grant recipients. While this may result in different accountability requirements for the States depending on whether funding is received through the IGA FFR process or from grant programs covered by the CGGs, this appropriately reflects the different nature of program funding and the level of autonomy and discretion involved.

The Department of Finance and Deregulation is currently undertaking the Commonwealth Financial Accountability Review (CFAR), a multi-year review of the operation of the Commonwealth's financial framework from first principles. A discussion paper was released publicly on 27 March 2012 and is available at http://cfar.finance.gov.au. The objective of the discussion paper was to facilitate consultation and broad public discussion on the Commonwealth financial framework. The discussion paper noted the interaction of the CGGs with the Federal Financial Relations Act 2009 and sought feedback from stakeholders to assist in determining what reforms might be considered when the Department of Finance and Deregulation puts forward options to the Government later in 2012.

Recommendation No. 2

The Committee recommends that the Commonwealth Government makes the recommendations and a summary of the findings of the Heads of Treasuries Review public, along with the associated Government response and implementation strategies.

Response

The Government notes the recommendation.

The Government also notes that in response to the review, COAG established in February 2011 a steering group, led by Senior Officials from First Ministers' and Treasury agencies, to take forward the key and related recommendations arising from the HoTs Review, to consider improvements to the governance and performance reporting framework and to tackle deficiencies in the design of current agreements identified by the HoTs Review and reports of the COAG Reform Council (CRC), to reinforce COAG's commitment to performance and public accountability.

As part of this process, the performance frameworks of each of the six National Agreements (NAs) and select National Partnership (NP) Agreements were reviewed to ensure that progress is being measured and that all jurisdictions are clearly accountable to the public and COAG for their efforts. The reviews were conducted by working groups comprising officials from Commonwealth, State and Territory treasuries, First Ministers' departments and portfolio agencies. The reviews were conducted in consultation with Standing Council data groups, the CRC and the Secretariat to the Steering Committee for the Review of Government Service Provision.

The reviews addressed aspects of the performance reporting frameworks identified as requiring attention in the HoTs Review and in reports by the CRC and the Steering Committee for the Review of Government Service Provision. The outcomes of the reviews provided the basis of recommendations to COAG on improvements to each agreement's performance framework. All reviews have now been completed. COAG agreed on 13 April 2012 to a revised National Agreement on Skills and Workforce Development and a revised NP on Homelessness. COAG also endorsed a report on the completion of improvements to the NP on Indigenous Economic Participation. On 25 July 2012, COAG agreed a revised National Disability Agreement (NDA), National Affordable Housing Agreement (NAHA), National Education Agreement and National Healthcare Agreement. COAG also agreed the review of the performance framework of the National Indigenous Reform Agreement out-of-session. These documents are available from the COAG website: www.coag.gov.au. Further work will be done in 2012 to develop provisional benchmarks with quantifiable targets for the NDA and NAHA.

Recommendation No. 3

The Committee recommends that the Department of the Prime Minister and Cabinet and central agencies investigate whether additional measures are needed to encourage and enforce the application of the Intergovernmental Agreement on Federal Financial Relations' principles and associated guidelines, and that the findings of the investigation be publicly released and provided to the Committee.

Response

The Government notes the recommendation. The Department of the Prime Minister and Cabinet and other central agencies continue to pursue a range of measures to promote the application of the IGA FFR principles and associated guidelines. This includes the development and promulgation of the Drafters' Toolkit which incorporates:

an updated Federal Finances Circular on Developing National Partnership (NP) Agreements under the FFR framework, and an updated NP template;

a new Federal Finances Circular on the Processes for drafting, negotiating and varying agreements, and related estimates and payments processes;

a new Federal Finances Circular on Developing Implementation Plans (IPs) for NPs, and an updated IP template;

a Conceptual Framework for performance reporting; and

two short guides: one on the IGA FFR and another on payments that fall within the FFR framework.

This information is available on the website of the Standing Council on Federal Financial Relations: www.federalfinancialrelations.gov.au

The Drafters' Toolkit and other aspects of HoTs Review implementation were the subject of correspondence from the Secretary of the Commonwealth Treasury to relevant portfolio agency secretaries on 23 December 2011, which was later copied to relevant departmental Chief Financial Officers.

Recommendation No. 4

The Committee recommends that the Department of the Prime Minister and Cabinet and central agencies, in consultation with appropriate experts, develop a set of agreed definitions for assurance requirements to be used in NAs, NPs and IPs.

Response

The Government notes the recommendation. The IGA FFR and the Drafters' Toolkit set out the requirements for NAs, NPs and IPs.

The IGA FFR specifies that NPs must focus on outcomes and outputs rather than inputs. Consequently, it provides for a reduction in Commonwealth prescriptions on service delivery by the States, and states that agreements will not include financial or other input controls, giving the States more flexibility in how services are provided to achieve the outcomes for which they are responsible.

Recommendation No. 5

The Committee recommends that a structured approach be developed and implemented by the Department of the Prime Minister and Cabinet and other central agencies to ensure relevant staff receive specific training to enhance understanding of the Intergovernmental Agreement on Federal Financial Relations and develop the skills required to meet outcomes focused performance reporting requirements.

Response

The Government agrees with the recommendation. In addition to the development and dissemination of the Drafters' Toolkit (see response to Recommendation 3), Commonwealth central agencies continue to pursue a range of measures to enhance understanding of the IGA FFR and develop the skills required to meet outcomes-focussed performance reporting requirements.

Following COAG's agreement to the HoTs Review, Treasury held two forums to discuss the findings and recommendations of the review with officials of all relevant portfolio agencies. The Department of the Prime Minister and Cabinet holds regular meetings with other Commonwealth central agencies and relevant portfolio agencies to discuss COAG and IGA FFR related issues. Commonwealth central agencies also engage with relevant portfolio agencies on a routine basis, providing advice on IGA FFR matters and draft agreements, as well as overseeing formal clearance processes for the development and agreement of NPs, IPs and Project Agreements (PAs). The Department of the Prime Minister and Cabinet is also developing a presentation on the IGA FFR and how to develop agreements under the FFR framework. The presentation will be delivered jointly with Treasury to Commonwealth portfolio agencies on a targeted basis.

The Department of Finance and Deregulation is currently reviewing its financial management education strategy including the most effective way to meet education needs across the Commonwealth. This includes working with the Australian Public Service Commission (APSC) to develop and deliver base level financial management framework training to officers new to the Senior Executive Service. Commonwealth central agencies are exploring opportunities to leverage the Department of Finance and Deregulation's work in this area to develop and deliver education products to enhance the awareness and understanding of the requirements of the FFR framework.

Recommendation No. 6

The Committee recommends that the Department of the Prime Minister and Cabinet, in consultation with other central agencies, establish processes to ensure that there is clarity of the outcomes to be achieved and these are clearly reflected in national funding agreements. The committee asserts that to underpin the achievement of outcomes, mutual understanding of the end goal must drive the cultural change, the training and skill development, and the quality and timeliness of data collection and publication. At all times, outcomes should be the focus in the development of all NAs.

Response

The Government notes the recommendation. As outlined in the response to Recommendation 2, on 13 February 2011 COAG agreed, in response to the HoTs Review, to review the performance frameworks of each of the six NAs and select NPs to ensure that progress is being measured and that all jurisdictions are clearly accountable to the public and COAG for their efforts.

In addition to the work to implement the HoTs Review, the Department of the Prime Minister and Cabinet and the Treasury work continuously with relevant portfolio agencies to develop NPs and IPs under the IGA FFR that have a strong focus on specifying outcomes and identifying robust performance measures and data to assess progress in achieving outcomes over time.

Recommendation No. 7

The Committee recommends that the Department of the Prime Minister and Cabinet, in collaboration with agencies such as the Australian Public Service Commission, should lead a process to provide training across the broader Australian Public Service which incorporates information on the Intergovernmental Agreement on Federal Financial Relations to explain the importance of the Agreement and its principles.

Response

The Government agrees with the recommendation. As mentioned in response to Recommendation 3, guidance materials have been developed for relevant staff in affected agencies. The Department of the Prime Minister and Cabinet is developing a presentation on the IGA FFR and how to develop agreements under the FFR framework. The presentation will be delivered jointly with Treasury to Commonwealth portfolio agencies on a targeted basis. An improved COAG website has also been launched.

As mentioned in response to Recommendation 5, Commonwealth central agencies are also exploring opportunities to leverage the Department of Finance and Deregulation's work with the APSC, to develop and deliver education products to enhance the awareness and understanding of the requirements of the FFR framework.

Recommendation No. 8

The Committee recommends that the Commonwealth works through the Council of Australian Governments to ensure that States develop and implement a similarly structured approach to foster cultural change throughout departments and agencies and ensure all staff receive relevant training to enhance understanding of the framework and develop the skills required to meet outcomes focused performance reporting requirements.

Response

The Government notes the recommendation. The Drafters' Toolkit (see response to Recommendation 3) was developed and agreed in consultation with State and Territory central agencies. At their meeting of 9 December 2011, HoTs agreed to disseminate and promote the Drafters' Toolkit to its respective portfolio agency secretaries or equivalents. The Secretary of the Commonwealth Treasury wrote to relevant portfolio agency secretaries on 23 December 2011.

States have also undertaken a range of measures to foster cultural change to ensure all staff receive relevant training to understand the IGA FFR and to develop the skills required to meet outcomes-focussed performance reporting requirements. More information provided by the States is available at Attachment A.

Recommendation No. 9

The Committee recommends that the Department of the Prime Minister and Cabinet and central agencies report back to the Committee within six months on work undertaken to move towards the 'single report to multiple agencies' ideal and the potential to develop a set of standard data requirements for areas of national interest.

Response

The Government agrees with the recommendation. The Government supports streamlining reporting requirements and consolidating data collections wherever possible to reduce the reporting burden. This objective will always be balanced with the need to have data that are fit-for-purpose, timely and robust.

In response to the Committee's request to report back, significant progress has already been made to move towards the 'single report to multiple agencies' ideal. In particular, agencies like the Productivity Commission and the CRC already draw almost entirely on secondary information sources rather than approaching providers and States directly for the same information. There are several areas of work underway to consolidate data collections, including:

(a)   the development of National Minimum datasets to improve performance reporting against NAs and NPs;

(b)   the National Centre for Vocational Education Research (NCVER) data collations;

(c)   Australian Curriculum, Assessment and Reporting Authority (ACARA) and National Assessment Program – Literacy and Numeracy (NAPLAN) data collections; and

(d)   the Australian Bureau of Statistics 'Measuring Wellbeing' framework.

Additionally, METeOR, the Australian Institute for Health and Welfare's (AIHW's) Metadata Online Registry, is a repository for national metadata standards for health, housing and community services statistics and information. The catalogue of holdings of AIHW data is an online searchable catalogue of a selection of data held by the Institute for statistical purposes.

Recommendation No. 10

The Committee recommends that the Prime Minister through the Council of Australian Governments, take steps to respond to the reports and recommendations of the Council of Australian Governments' Reform Council within three months.

Response

The Government agrees with the recommendation. COAG has already undertaken to respond to CRC reports and recommendations within three months.

Recommendation No. 11

The Committee recommends that the Prime Minister table COAG Reform Council reports in the Commonwealth Parliament one month after submission to COAG, and that relevant Productivity Commission reports are tabled as soon as practical. Once tabled, these reports should be automatically referred to an appropriate Joint Standing Committee for review.

Response

The Government notes the recommendation. The CRC releases publicly its NA performance and NP assessment reports, and Productivity Commission reports are already tabled in Parliament within 25 sitting days of being received by the Treasurer. However, in some instances neither the CRC nor COAG release certain reports. This occurs, for example, when the contents are commercial-in-confidence. Consequently, COAG reserves the right to withhold certain reports if there is a compelling reason to do so.

Recommendation No. 12

The Committee recommends that signed National Partnerships are tabled in Parliament, along with a complementary Ministerial Statement.

Response

The Government disagrees with the recommendation. All agreements under the IGA FFR are available publicly on the website of the Standing Council on Federal Financial Relations.

Recommendation No. 13

The Committee recommends that the Prime Minister deliver an annual Statement to the House:

- outlining the Commonwealth Government's perspective on the contribution of national funding agreements to the improvement of the well-being of Australians; and

- summarising the number of current, new, upcoming and expired NAs and NPs.

Response

The Government notes the recommendation, but considers that the recommendation's objective is delivered through other existing avenues. COAG's contribution to the improved well-being of Australians is already canvassed by a range of agencies through a number of different reports by the CRC, the Productivity Commission and indirectly through the measures of Australia's wellbeing reported by the Australian Bureau of Statistics.

For example, the CRC produces an annual report, COAG Reform Agenda: Report on Progress, and a number of reports on progress under the NAs and certain NPs. Similarly, the Productivity Commission reports on the 'Impacts and Benefits of COAG reforms' and provides COAG with information on progress through its Report on Government Services. Finally, COAG itself reports on its progress through the communiqué published after each meeting and published on its website.

All NAs, NPs, IPs and PAs are available publicly on the SCFFR website which is updated regularly. Information on upcoming and expired agreements is published in Budget Paper 3 and Part 3, Attachment D of the Mid-Year Economic and Fiscal Outlook, which are public documents tabled in Parliament.

Recommendation No. 14

The Committee recommends that the Department of the Prime Minister and Cabinet and central agencies investigate steps so that Portfolio Budget Statements and annual reporting requirements provide a more comprehensive picture of the performance and outcomes of programs under National Partnerships across government.

Response

The Government notes the recommendation. The CRC already reports on progress against those NPs that support the objectives of an NA, much of which is summarised in its annual COAG Reform Agenda: Report on Progress and in its annual NA performance reports. The CRC also reports on whether performance benchmarks have been achieved in NPs with reward payments. For other NPs, Commonwealth agencies may publish progress or final program reports on their websites.

The Department of Finance and Deregulation is already taking steps to improve the guidance it provides to agencies on performance reporting in the Portfolio Budget Statements as part of its response to a recent ANAO Performance Audit Report (No.5) 2011-12: Development and Implementation of Key Performance Indicators to Support the Outcomes and Programs Framework. The Department is also considering the inclusion of further guidance on how to reference performance reporting for programs delivered through NAs.

States and Territories are responsible for delivering the majority of outcomes and outputs under NPs. The primary purpose of Commonwealth agency annual reports, on the other hand, is to report on the performance of the Commonwealth agency in relation to services provided.

Recommendation No. 15

The Committee recommends that, in light of the range of review activity currently underway, the Commonwealth Government take this opportunity to institute and deliver on the Intergovernmental Agreement on Federal Financial Relations' full potential. With these changes Australia will be well positioned to continue on the reform pathway in the coming decade.

Response

The Government agrees with the recommendation.

Attachment A

STATE AND TERRITORY ACTIVITIES TO FOSTER CULTURE CHANGE WITH RESPECT TO THE INTERGOVERNMENTAL AGREEMENT ON FEDERAL FINANCIAL RELATIONS

Senator BIRMINGHAM (South Australia) (15:35): I present two reports of the Joint Standing Committee on Treaties: report No. 127, Treaties tabled on 20 March and 8 May 2012; and report No. 128, Review of the Treaties Ratification Bill 2012. I seek leave to move a motion in relation to the report.

Leave granted.

Senator BIRMINGHAM: I move:

That the Senate take note of the reports.

I thank the Senate for the leave. In presenting these two reports I will touch briefly on some of the issues they canvass. First is report No. 127, which contains the committee's views on a series of treaties which were tabled on 20 March and 8 May 2012. One of the more important treaties covered in this report is the exchange of notes constituting the Agreement between Australia and the United States of America to Amend and Extend the Agreement on Cooperation in Defence Logistics Support. The exchange of notes will extend the Agreement on Cooperation in Defence Logistics Support for a period of 11 years and ensure that Australia's bilateral defence logistics cooperation with the United States remains on a sound footing.

The agreement's continued operation is important to the Australia-United States military relationship because it enables the reciprocal provision of logistical military support. It also provides for the establishment of maintenance programs which enhance industry capability and contribute to Australia's military preparedness and interoperability with US forces.

I hope that all members in this place recognise that Australia's defence relationship with the United States is our most important defence relationship. The ANZUS alliance, in effect for over 60 years, is the cornerstone of that relationship and subsequent agreements, such as this one, help to facilitate that defence relationship. Given the increased cooperation and activity between the US and Australian defence forces over the past decade, this exchange of notes is both logical and practical.

It will help to facilitate ongoing operations in Afghanistan as well as the deployment of the US Marines to the Northern Territory.

The Joint Standing Committee on Treaties did, however, note that this agreement is currently used infrequently and could perhaps better serve Australia's interests if some of the provisions within the logistical support agreement were more fully utilised, especially in the area of Australian access to US equipment and industry. From evidence the committee received, it appears as though the agreement's potential has perhaps not been explored as thoroughly as it could be, and we certainly urge those officials involved in Defence to look at how it could be enhanced to the benefit of Australia's defence industry.

The committee also approved an extension to the 1987 Regional Co-operative Agreement for Research, Development and Training Related to Nuclear Science and Technology. The regional co-operative agreement is a useful mechanism in providing a regional framework for initiating co-operative projects and co-ordinated research between international atomic energy agreement member states in the Asia-Pacific. Its continued operation over a 40-year period provides tangible evidence of its usefulness. Although the RCA's role in the nonproliferation architecture is limited, it does perform a role in promoting nonproliferation objectives. Furthermore, as part of a broader regulatory architecture for nuclear activities, it also plays a role in implementing improved standards following events such as those that occurred, tragically, at Fukushima. The committee strongly supported the continuation of our involvement in this agreement, which ensures that the peaceful use of nuclear science and technology is advanced throughout the region. The committee noted that there could have been opportunity to upgrade the agreement rather than, as such, simply roll it over, and the report suggests that Australia could and should in future look at taking the opportunity to strengthen the safety and nonproliferation aspects of this agreement, especially in light of the Fukushima disaster. Given the agreement is renewed every five years, this is an item we would expect to be taken into account at that time.

In relation to report No. 128, which contains the committee's views on the Treaties Ratification Bill 2012, I inform the Senate that the committee has recommended that this bill not proceed. The bill was introduced by the member for Kennedy into the House of Representatives in February this year to address what he perceives as the undemocratic nature of treaty negotiation and implementation. The member for Kennedy was concerned that the treaties Australia is entering into are economically damaging to Australian agriculture and manufacturing, and claimed that Australia's sovereignty is being eroded. Members of the committee do not necessarily agree with the member for Kennedy's summation.

The way in which trade treaties are negotiated continues at times to be a matter of controversy but, equally, I especially and the committee overall recognise the absolutely vital importance of free trade to Australia and of the continued negotiation by the Australian government of bilateral and multilateral free trade agreements and participation in those fora. There may be a popular perception in some places that Australia is being disadvantaged by these agreements; however, open markets to foreign products, services and investment are absolutely essential to Australia's future.

Senator Wong: You'd better tell Barnaby. Barnaby's got Tony's ear!

The DEPUTY PRESIDENT: Order! Senator Wong!

Senator BIRMINGHAM: I welcome Senator Wong's enthusiastic support for the findings of the committee. I suggest that Senator Wong take a look at some of the comments of the likes of the member for Hindmarsh on these topics. She might find that they are not in accordance with some of the strong views of the Minister for Trade or others.

The Treaties Committee considered these issues during its study of the Australia-Chile Free Trade Agreement in 2008. At the time, the committee recommended that there could be more thorough cost-benefit assessment of treaties provided by the government to ensure that there is a better understanding of the benefits that stem from these types of free trade agreements. The committee has reiterated this in this report in a broader sense, given that it covers more than just trade agreements, and recommended that, prior to commencing negotiations for any new agreements:

… the Government table in Parliament a document setting out its priorities and objectives, including the anticipated costs and benefits of the agreement.

This, we think, would provide greater transparency to the treaty-making process and allow the Treaties Committee to have the opportunity to engage with the government of the day on the treaty-making process before such treaty negotiations are finalised, which is an important point across all aspects of treaty making.

However, as I indicated, the member for Kennedy's bill is not, in the opinion of the committee, the solution to the concerns that it has indicated or to the concerns the committee may have about the lack of parliamentary involvement in the treaty-making process at its earlier stages. We see that the bill has a number of flaws and would be unworkable. The bill itself has only one substantive provision:

The Governor-General must not ratify a treaty unless both Houses of Parliament have, by resolution, approved the ratification.

The committee received a number of excellent submissions and heard evidence from well-informed witnesses at the public inquiry that was held into the bill. From this evidence, the committee concluded that it appears that the bill is likely to be constitutional. Section 61 of the Constitution places formal responsibility of treaty making with the executive rather than the parliament. The wording of the bill indicates that the parliament is not taking over the ratification function, however, but rather makes the executive's decision to ratify conditional upon the parliament's prior approval.

However, the bill would present a number of practical and political problems to both the parliament and the executive if passed as presented. The sheer number of treaties, many of them dealing with administrative matters, along with, indeed, the nature of the parliament, would at times have the potential to overwhelm the parliamentary process if all treaties were subject to this arrangement. The bill's lack of a provision for short-term emergency treaties would make the bill unworkable. For example, the Joint Standing Committee on Treaties has, on behalf of the parliament, reviewed over 600 treaty actions at an average of almost 40 treaties per year since it was established in 1996. If both houses of parliament had to, by resolution, approve the ratification of each treaty, as the bill demands, the parliament would certainly need to sit more often and would have little time, perhaps, to complete its other business.

Although other models exist overseas which may add a greater degree of parliamentary scrutiny to the treaties review process, the bill is a very brief document which allows little room for amendment without a comprehensive change of its intent.

That is why the committee has made the recommendation that I highlighted earlier; to give greater parliamentary oversight and involvement at an earlier stage of the negotiating process, which we believe would be a good step on the reforms that the Howard government instigated in establishing the Joint Standing Committee on Treaties originally.

I thank the committee secretariat for its work on both of these reports, and I commend both of the reports to the Senate.

Senator LUDLAM (Western Australia) (15:45): In rising to speak on the motion to take note of the reports of the Joint Standing Committee on Treaties, I would like to follow up on some of Senator Birmingham's comments from the point of view of the Australian Greens. I will focus mostly on the Fifth Agreement to Extend the 1987 Regional Co-operative Agreement for Research, Development and Training Related to Nuclear Science and Technology, which was signed up to by Australia on 15 April 2011.

Senator Birmingham pulled out one of the quotes, and I want to highlight it. It is extremely interesting that this was one that he chose to highlight. I have a great regard for Senator Birmingham and also for the work of the Treaties Committee and its secretariat. This is a diligent committee that performs an extraordinarily important role. Given that so much of treaty making between Australia and other countries is done by the executive and the parliament gets to find out about it after it is done, the role of the Treaties Committee in assessing and providing recommendations to the government and to the parliament before they are rubber stamped—if indeed they are—is tremendously important.

This is an opportunity missed. In recent times the Treaties Committee has done extremely important work, for example, on the proposal to sell uranium to Russia, which is presently assisting Iran in creating a domestic nuclear power capacity and potentially other things. In this report the committee noted, 'There may have been an opportunity missed to upgrade the agreement rather than simply rolling it over.' But, of course, that is precisely what the committee enables and facilitates. We give it the rubber stamp and we say, 'Yes, this should simply be rolled over for another couple of years'—and miss an enormous opportunity to assess what has just happened in the nuclear industry.

One of the things that I hope to speak about in a bit more detail some time later in this session is the visit that I was very fortunate to take over the break to Tokyo and Fukushima. I spent some days in the areas surrounding the destroyed reactor complex that was wrecked after the earthquake and then the tsunami last 11 March, which depopulated a large stretch of not only the Fukishima Prefecture but also areas a long way to the north and the west of the reactor plant—which actually caused the Prime Minister of Japan to briefed by officials on the evacuation of Tokyo, which has a population of roughly 30 million people. If Tepco had walked away from that reactor complex and they had gone into full meltdown and had lost all four of the plants plus the spent fuel ponds they would have had to evacuate the northern half of Japan, including greater Tokyo. That was from one accident at one power station.

It is remarkable then to return from that trip—which I will speak of at greater length when I have the opportunity—to see the tabling of this report that says: 'This is fine; she's right. We can just carry this on and roll it over.' Everything has changed in this particular industry. In fact, everything changed after Chernobyl. The industry simply went into a flat line in many countries, apart from China. And let us not dismiss their extremely ambitious nuclear build—and this is a country that does what it says it is going to do in this kind of area. Apart from that, all of the news is negative for the nuclear sector; all of the indicators are backwards.

Since the disaster, three countries—Germany, Belgium and Switzerland—have announced a nuclear phase-out. Only two units are currently online in Japan, and the mood in that country at the moment is strongly against the restarts. So Japan are now scrambling for alternate sources of supply, including gas from Australia, and they are on quite an aggressive energy efficiency mechanism. People in Japan are saying: 'You sold us out and betrayed us twice. Firstly, you told us that these plants were safe and that this could never happen and, secondly, you told us that these plants were essential and that we needed them all. Neither of those things is true.' Trust on behalf of the Japanese people in a government that led them into this extraordinary disaster is gone, patience has snapped and the situation has turned. For the Australian government to then document its total ignorance of that fact is, I think, something more than an 'opportunity missed'.

It is having consequences in the industry. So maybe this reality has not yet washed through the parliament, where this strange kind of pro-nuclear delusion that everything is great and will continue to be great still prevails. In industry, the mood has changed as well. BHP Billiton appears to have put off its decision about the expansion of the Olympic Dam project for two years. Obviously that is a big copper venture as well. It would also be the world's largest uranium mine and the world's largest excavation—hole in the ground—if it goes ahead. They have parked it for the time being. The proponents of the Kintyre uranium mine in the western desert of Western Australia, Cameco and Mitsubishi—not niche players but the largest uranium miner in the world and one of the largest industrial combines in the world—have backed away from Kintyre. BHP has also backed away from the O'Leary project in Western Australia. Toro, who really are a two-bit player, who have this nasty little project in the Lake Way Basin, not too far from Wiluna in Western Australia, have not told the market yet but they are going to need to back away from that project as well because it is utterly sub-economic.

One of the reasons it is sub-economic is that the world uranium price will not be recovering because customer countries do not want what we are selling any more. Yes, it will take time to back out of some of the disastrous investment decisions that have been made, not just in Japan but in all the countries that took up this technology—and thank goodness we never took the bait here in Australia—but the market for this poisonous product that we insist on selling is disappearing fast. It would have been nice to have seen some recognition of that fact in this report.

The balance sheet of Tepco, the utility that operated the Fukishima plant, has been annihilated. It is worth much less than nothing. It is now a colossal uncapped, unknown liability on the taxpayers of Japan. It has lost 90 per cent of its share value since 2007. The French state utility—where there have not been any catastrophic accidents in the last year or two, that we know of—lost 82 per cent of its value. The share price of the French state company AREVA—which we are in the process of kicking out of Kakadu, which is superb news, and I applaud the government for that—has fallen by 88 per cent. Siemens, the big German industrial group, has announced that it will entirely withdraw from the nuclear industry because that would free up funds that Siemens can redeploy in businesses with better visibility. What better visibility could you ask for than an industrial accident that depopulates a region, destroys a fishing industry, destroys agriculture and horticulture, forces the evacuation of 150,000 people and laces an entire region with iodine and radiocesium? That is the kind of visibility that Siemens has decided it can do without.

In Fukushima—and I will speak about this at greater length—36 per cent of children screened were found to have abnormal growth—cysts or nodules—on their thyroid glands. Radioiodine has quite a short half-life. It is an aggressive isotope and the body reads it as normal iodine and parks it in the thyroid gland. Thirty-six per cent of kids in the contaminated zone were found to be affected, post-evacuation. This is a trade that Australia can do without. They can certainly do without it in Tohoku and in the regions that were showered with radiocesium—radiocesium that originated in Kakadu and central South Australia.

The Australian Prime Minister said some time ago—it was some time ago so perhaps she would consider rethinking this—that Fukushima 'doesn't have any impact on my thinking about uranium exports.' It has had an impact on thinking in Japan, one of our biggest customer countries. It has had an impact in Germany. It has had an impact in China, where they have put some of their proposed reactors on ice and they have backed away from the really aggressive expansion plans. They are still building those plants; I will not pretend that they will not complete some of them. But I find baffling the idea that it does not have any impact on the Prime Minister's thinking about uranium exports. Prime Minister Gillard paid the Japanese Prime Minister the courtesy of visiting some of the areas shattered by the tsunami, as I was able to do 16 or 17 months on. So she has seen the destruction. She knows of the areas that have been evacuated, but I invite her to spend a couple of days in and around the contaminated area, where the farmers are now being told that their food is poisonous and the fishing industry has collapsed. There is nobody in the chamber from the National Party, but for people representing agricultural communities, farming communities, and all of us in this chamber, for a farmer to be told that the food they produce will cause cancer is shattering. But when you read the JSCOT report, there is simply no reflection; there is blissful ignorance. It is as if this has not happened.

Industry is starting to wake up. The Japanese people and the people of other countries—client countries, of this toxic, unnecessary and obsolete trade—are waking up. I call on the Australian government to take another look at this one. This is an industry that we can do without.

Question agreed to.

Senator McEWEN (South Australia—Government Whip in the Senate) (15:55): On behalf of the Joint Standing Committee on Electoral Matters, I present the advisory report of the committee on the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012.

Senator RYAN (Victoria) (15:55): by leave—I move :

That the Senate take note of the report.

Apart from one particular change, the bill proposed by the government has the support of the opposition. There are a couple of issues I would like to highlight, because the committee report proposes a change to the legislation introduced by the minister in the other place. That change is to the terminology that is used to exclude people from voting. The current terminology excludes people who are of 'unsound mind'—as defined by a medical practitioner—from voting. The proposal is to change that to what one might call more modern terminology. The committee received some evidence from community groups, essentially complaining that the term has a pejorative meaning. But the committee—and this is a very important point—rejected those particular concerns, for several reasons.

Firstly, it is proposed in the bill that the wording be changed to use the definition of a 'qualified person' that is in the Freedom of Information Act. I believe that would inadvertently result in a wider exclusion of people from voting. The legal terminology around the term 'unsound mind' and a certificate being provided only by a qualified medical practitioner is about as narrow as we can get. It has an established legal meaning, there is an established process and, while there are some concerns about some doctors signing such a certificate—and there were complaints about that—changing the wording as proposed in the legislation would widen the definition and potentially exclude many more people from voting.

Secondly, it was also a concern of the opposition that the definition of a 'qualified person' as contained in the bill was too wide. I do not mean this in a pejorative way, but I would not want someone who is not qualified in medicine—someone who might be a social worker of some variety as opposed to a medical practitioner—to determine whether or not someone had the right to vote. Generally in Australia we like to expand the franchise and encourage as many people as possible to vote; in fact, we make it compulsory. We make enrolment as easy as possible. I believe that the wording proposed by the government could have inadvertently excluded more people.

The other contentious issue in this bill was the substantial increase in nomination requirements, particularly for this chamber, in terms of the number of nominators required, the number of nominators required for people who want to run on a group ticket and avail voters of above-the-line voting, and also nomination fees. There were some concerns that this would restrict the right of people to be candidates. It is important to put this in historical context. A couple of thousand dollars as a nomination fee may seem steep, but the nomination fee for the first federal election in one of our states was £25—which was a hell of a lot more money in 1900 than $2,000 is today. It still represents a substantial reduction in the nomination fee in real terms from our first federal election.

There is also a problem in access to the ballot paper. The New South Wales Senate ballot paper is now as big as can possibly be printed in the time allowed under the Electoral Act, and it is as big as can be printed on a flat-sheet printer. There is no bigger ballot paper available to be printed in the time the Electoral Act allows for ballot papers to be available for postal votes and pre-poll voting. The font size on the New South Wales Senate ballot paper is now down to 9 point. I do not mean to be too technical here but this is going to start impacting, particularly for senior Australians and those with eyesight problems, on the right to vote. We cannot make the ballot paper bigger. I believe the person who sits in front of me, Senator Fierravanti-Wells, whose name has a hyphen, has her name carried over to two lines on the ballot paper because the width cannot be fitted on the ballot paper with the sheer number of other candidates.

It is an important issue to restrict those candidates who some might say are not serious in running in order to maintain the ballot paper at a feasible size and not reach the tablecloth proportions that we did in the 1999 New South Wales Legislative Council election. We do not want to have multiple lines on the ballot paper because that could potentially impact on the fairness of the ballot. I put to the chamber and the people that a $2,000 nomination fee is not extraordinary in this modern era, especially given the historical context. Saying that, I seek leave to continue my remarks.

Senator CAROL BROWN (Tasmania—Deputy Government Whip in the Senate) (16:00): The Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012 amends postal voting arrangements, increases nomination deposits for Senate and House of Representatives candidates, increases the nominators required for unendorsed candidates in Senate groups, changes the unsound mind exemption from enrolment to voting, and covers minor and technical amendments to the Commonwealth Electoral Act.

The committee supports the changes to schedules 1 and 2 of the bill. However, it has some concerns about schedule 3's changes to the unsound mind provision and has recommended certain amendments. Schedule 3 proposes to change the unsound mind provision in subsection 93(8) of the electoral act. That section exempts a person from enrolling and voting if they are incapable of understanding the nature and significance of enrolment and voting. Thousands of people are using this provision every year. They may be facing temporary or ongoing mental health challenges that compromise their capacity to cast a vote. It is generally someone close to the affected person who will seek to have that person exempted under subsection 93(8). The Australian Electoral Commission cannot initiate a removal from the roll on these grounds.

The committee is sensitive to community concerns that the phrase 'unsound mind' is offensive and that the provision prevents people from voting. Given Australia's system of compulsory enrolment and voting, it is useful to have a mechanism to address this to protect the integrity of elections and to assist those who are unable to meet the enrolment and voting obligations. Based on the evidence received, the committee is not satisfied that there is any pressing need to remove or substitute the phrase 'unsound mind'. It is an established phrase with meaning in the law. The committee has recommended retaining the phrase 'unsound mind' in subsection 93(8). To remove it risks broadening the exemption and potentially disenfranchising electors.

The committee also supports keeping the current requirement for a certificate from a medical practitioner. With other professions such as psychiatrists and social workers making these determinations, it could fairly disenfranchise people if these additional qualified people are less stringent in judging a person's capacity to understand the significance of enrolment and voting.

I now turn to schedules 1 and 2 of the bill, relating to postal voting and nomination requirements. In referring the bill, the selection committee noted that the bill was ambiguous in relation to specific changes being made to processing postal vote applications. In its review of the bill, the committee found that a number of the changes relating to postal votes largely reflected existing AEC practices. These changes will simply ensure that the electoral act correctly outlines the processes that have evolved to help ensure efficient processing of postal vote applications (PVAs) and the distribution of postal vote packages (PVPs). Most PVAs are already processed centrally and PVPs distributed through the AEC central prints system—93 per cent for the 2010 federal election. At the next election there will also be the option to apply online. These online applications will be centrally processed.

The divisional returning office is no longer the main conduit for postal voting activities; however, the electoral commissioner will continue to delegate his power in relation to postal votes to the divisional returning officers (DROs) and other AEC officers. This change will not affect the way in which individuals and political parties interact with their DROs on postal voting matters. As is the current practice, political parties will still be able to distribute PVAs with campaigning material, receive completed PVAs and forward them to the relevant DRO.

In the case of issuing PVPs to a person rather than specifically to an elector, the AEC indicated that it already uses PVPs to unmatched applicants who are not found on the electoral roll. The returned ballot papers are then subject to further scrutiny and then admitted to the count only if the person is verified to be an elector. This is in keeping with the approach taken with declaration voters.

While having a variety of candidates is a feature of Australia's democracy, a large number of candidates means an expanded ballot paper and increases the complexity of the voting task for electors. Setting appropriate nomination requirements is one way to help ensure that prospective candidates appreciate the seriousness of their participation in the electoral process and that they can demonstrate some community support for their candidacy. Increasing the nomination deposit from $1,000 to $2,000 for Senate candidates and from $500 to $1,000 for House of Representatives candidates is reasonable and appropriate.

The increase from 50 to 100 nominators required for candidates not endorsed by a political party is reasonable. It is important that unendorsed candidates be able to demonstrate community support for their candidacy. Similarly, if unendorsed candidates wish to be grouped on a Senate ballot paper, it is appropriate that each member of a Senate group be able to demonstrate community support for the grouping. The bill will increase the nominators from 50 for the whole group to 100 per candidate, as the proposed new requirement is for unendorsed candidates to have 100 nominators. They should be able to draw on this support base to secure their Senate group box.

On behalf of the committee I thank the organisations and individuals who assisted the committee during the inquiry through submissions or participating at the roundtable discussion in Canberra. I also thank my colleagues on the committee for their work and contribution to this report and the secretariat for their work on this inquiry. I commend the report to the Senate and seek leave to continue my remarks.

Senator RHIANNON (New South Wales) (16:06): The Greens do not support some of the recommendations of the parliamentary committee inquiry into the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012. Those recommendations that increase nomination requirements for candidates are problematic. Schedule 1 to the bill will modernise postal voting provisions to facilitate the use of technology to improve the way in which postal vote applications are made and processed, directing all applications to either the Electoral Commissioner an assistant returning officer. We support these aspects of the recommendations. The Greens support those aspects of the bill except the Australian Electoral Commission's position that the legislation update existing laws to bring them into line with current practices. They certainly are important developments. However, we have serious concerns that the proposed increased nomination fees and the number of nominators required to nominate as a candidate are undemocratic, and will unfairly disadvantage small parties and candidates.

Doubling the nomination fee to $1,000 for a House of Representatives candidate and $2,000 for a Senate candidate, and the number of nominators for an unendorsed candidate from 50 to 100 nominators, creates an undue barrier to small parties seeking to participate in the electoral system. It actually creates an equity issue for small parties and people on low incomes. It also makes the cost of running a full ticket in the Senate close to prohibitive for small players. The Greens certainly acknowledge that with the size of the Senate ballot paper becoming very large, particularly in New South Wales, we have a problem. We need to find the balance here. So we can see why a higher threshold for nominating in the Senate has been considered. But a candidate should be able to demonstrate that they have a genuine pool of supporters.

The Greens very much believe that a foundation of democracy is to recognise the right of voters to run in elections. We see that these measures combine to create a difficult hurdle for small parties and candidates to clear, and could work to discourage participation in the electoral system. So the Greens will not be supporting this aspect of the bill and will move amendments to remove those aspects, and to restore a fairer system in terms of people who choose to run for office, when the bill comes before the Senate. I thank the Australian Electoral Commission for their advice, their evidence and their submissions that they provided when we were considering this bill, as well as all those who put in submissions and the other committee members. I always find these issues about how to improve our electoral system very interesting.

Debate adjourned.

Senator KIM CARR (Victoria—Minister for Human Services) (16:11):

These bills are being introduced together. After debate on the motion for the second reading has been adjourned, I shall move a motion to have the bills listed separately on the Notice Paper. 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 KIM CARR (Victoria—Minister for Human Services) (16:12): 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—

Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012

Introduction

Twelve months ago, the Government announced 'Streamlining Australia's anti-dumping system'—a policy document setting out the most significant reforms to Australia's anti-dumping system in over a decade.

I am pleased today to present the Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012—the fourth and final tranche of legislation to implement the reforms in the Streamlining policy.

As I foreshadowed in March, when I introduced the third tranche of legislation, this fourth bill implements reforms across three broad areas.

First, it will better align Australia's anti-dumping and countervailing system with those of our WTO counterparts.

Second, it introduces provisions designed to address the circumvention of trade measures. These important amendments establish, for the first time, a mechanism for Australian industry to apply to the Australian Customs and Border Protection Service for an inquiry into business practices which are designed to avoid the payment of dumping or countervailing duties.

Third, it strengthens our system's ability to address parties' non-cooperation during the investigation process.

It also makes a number of minor corrections to Part XVB of the Customs Act 1901 (Customs Act).

I will now step through each of these in more detail.

Aligning subsidies provisions with the World Trade Organization Agreement on Subsidies and Countervailing Measures

First, the bill amends the provisions dealing with countervailable subsidies to more accurately reflect the World Trade Organization Agreement on Subsidies and Countervailing Measures. In particular, this bill:

amends the definition of subsidy to more accurately reflect the language of Article 1 of the WTO agreement, clarifying that a financial contribution or income or price support is a subsidy even if it only indirectly confers a benefit in relation to the goods exported to Australia;

repeals the section of the Customs Act dealing with 'calculating whether a benefit has been conferred and the amount of the subsidy' and replaces it with a simplified section more in line with the approach of the WTO agreement;

introduces a new provision which clarifies that the amount of the countervailable subsidy is an amount determined by the Minister in writing and that the amount of countervailable subsidy should be worked out by reference to the units of those goods;

amends provisions relating to material injury to more effectively reflect the WTO agreement. In particular, this relates to requiring that material injury determinations be made based on facts and not allegations, conjecture or remote possibilities. It also ensures that consideration is given to the cumulative effects of those exportations in light of the competition of imported and like domestic goods; and

amends the provision relating to the termination of an investigation where subsidisation causes negligible injury. This will clarify that a countervailing duty investigation can immediately be terminated where the authorities determine that injury is negligible without having to prove that subsidisation is received.

Anti-circumvention inquiries

Second, this bill introduces a new division in Part XVB of the Customs Act, Division 5A—Anti-circumvention inquiries. This division will allow Australian industry, or the Minister, to initiate an anti-circumvention inquiry.

Circumvention is a trade strategy used by the exporters and importers of products to avoid the full payment of dumping or countervailing duties. Circumvention activities take various forms and exploit different aspects of the anti-dumping and countervailing system. For example:

an exporter of goods subject to dumping duty may make an arrangement to export its goods through a second exporter, who is not subject to dumping duty, in order to avoid the dumping duty imposed;

an importer of goods subject to dumping duty may import those goods in parts from the manufacturer and then assemble them in Australia in order to avoid the dumping duty imposed, because "parts" of the goods are ordinarily not subject to dumping duty; or

an importer of goods subject to dumping duty may import those goods via a third country, which is not subject to dumping duty, in order to have them considered as imports from that third country and avoid the dumping duty imposed.

Division 5A empowers the Chief Executive Officer of the Australian Customs and Border Protection Service to inquire into those circumvention activities and provide me with a report recommending whether the original notice should be altered or remain the same. As a result of these amendments, I will be able to extend the original notice imposing the anti-dumping measures to cover the circumvention activities of exporters or importers if I am satisfied that, as a result of the prescribed circumvention activity, the duties which would have otherwise been paid on imported goods have not been paid.

Stronger provisions to address non-cooperative parties

Third, this bill strengthens the provisions that deal with non-cooperation in sampling exercises in investigations, continuation inquiries or reviews under Division 5 of Part XVB of the Customs Act.

Sampling exercises are undertaken where the number of exporters who provide information is so large as to make a determination for each individual exporter impracticable. The Australian Customs and Border Protection Service will be able to limit the examination either to a reasonable number of exporters which are a statistically valid sample, or to the exporters who are responsible for the largest percentage of the volume of the exporters from the country in question which can reasonably be investigated.

Currently, an exporter of goods which are the subject of an investigation must have been either a selected exporter or a residual exporter. A residual exporter would generally receive a duty equal to the weighted average of the examined selected exporters' duty rate imposed by the measures. This would normally be more than the rate for an exporter who failed to cooperate in the investigation.

The Australian Customs and Border Protection Service's view has been that residual exporters only exist in cases where the sampling provisions were applied. In a recent Trade Measures Review Officer decision a loophole was identified which could lead to a counterproductive outcome that benefits non-cooperating exporters, that is, they may receive a more favourable rate than the rate provided under the current approach.

This amendment will prevent potential manipulation of this provision by creating three categories of exporters: cooperative, residual and uncooperative.

As a result, I will be able to determine:

individual rates of duty for all cooperative exporters and any uncooperative exporters for whom an individual export price and normal value were calculated. These exporters will be named in the notice;

a single rate of duty for all residual exporters. These are the cooperative exporters which were not examined; and

a single rate of duty for all other exporters not named in the notice. This will include non-cooperative exporters which are not covered by an individual rate, and new exporters.

This approach is consistent with the approach taken in a number of other jurisdictions.

This reform will ensure that Australia's anti-dumping system effectively deals with parties that do not cooperate with investigations. This ensures that I have the power to impose tougher dumping margins for parties that refuse to provide necessary information within a reasonable period.

Conclusion

This bill completes the implementation of the legislative reforms outlined in the Government's Streamlining Australia's anti-dumping system.

The Streamlining reforms represent the most extensive improvements to the anti-dumping system in a decade and address long-standing systemic issues such as those identified in the Productivity Commission Inquiry Report No.48, Australia's Anti-dumping and Countervailing System.

But more can be done to ensure that the system can respond to new and emerging trends.

During consultations on the implementation of these reforms, the International Trade Remedies Forum highlighted a number of areas that need further improvement. These include:

establishing a Subsidies Working Group to examine possible improvements to Australia's countervailing provisions, and a Compliance Working Group to explore ways to ensure stronger compliance with the trade measures that are imposed;

closer examination of the WTO rules for using experts in exceptional circumstances for exporter visits; and

addressing sales at a loss that are aimed at avoiding the effect of our anti-dumping system.

I am looking at all of these areas and where legislative reform is required—we will bring forward further legislation for the Parliament's consideration.

There is still more to do. This bill is an important step—and I commend it to the House.

Customs Tariff Amendment (2012 Measures No. 1) Bill 2012

The Customs Tariff Amendment (2012 Measures No. 1) Bill 2012 contains several amendments to the Customs Tariff Act 1995 (the Customs Tariff).

Items 1 and 2 of the Schedule to the Bill provide for the listing of Serbia as a Developing Country for the purposes of the Australian System of Tariff Preferences, with effect from 1 March 2012.

This listing accords Serbia a reduction in customs duty on a defined range of goods imported into Australia.

This action is consistent with Australia's approach to other states which were formerly part of Yugoslavia.

Item 7 of the Schedule to the Bill re-inserts subheading 5308.10.00, applicable to coir yarn, in the Customs Tariff. This subheading was incorrectly omitted from the Customs Tariff in the Customs Tariff Amendment (2012 Harmonized System Changes) Act 2011.

Those amendments were previously given effect through the tabling of Customs Tariff Proposal (No. 1) 2012 in the House of Representatives on 16 February 2012.

The remaining amendments in the Bill correct a number of technical errors that have occurred in the Customs Tariff.

These corrections maintain the quality of the text of the Customs Tariff and ensure that Australia's Customs Tariff is correctly aligned with the International Convention on the Harmonized Commodity Description and Coding System that forms the basis of the Customs Tariff.

These corrections do not affect the classification of goods or customs duty payable.

Maritime Legislation Amendment Bill 2012

In the past month the Government has introduced into this Parliament a suite of bills that represents the most significant overhaul of Australia's maritime industry since its establishment in 1912.

We have introduced the National Law Bill to establish a single National Marine Safety Regulator in Australia and the Navigation Bill that modernises the 100 year old Navigation Act.

I also had the great pleasure to introduce the Government's Stronger Shipping for a Stronger Economy legislative reforms.

These reforms became law last Thursday and from 1 July commence the vital work of revitalising Australia's shipping industry.

This Government has also amassed a substantial body of work in the protecting Australia's precious marine environment.

In this Parliament alone, we have increased penalties for the discharge of oil or oil residues by ships in Australian waters from $220,000 to $11 million; banned the carriage or use of heavy grade oils on ships in the Antarctic Area, legislated practices for ship to ship transfers of oil carried as cargo and implemented incremental changes to the maximum sulphur level of marine fuel oil.

This bill continues the Government's commitment to our marine environments.

The Maritime Legislation Amendment Bill 2012 amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 to strengthen Australia's comprehensive marine pollution prevention regime.

As a Government, it is our duty to ensure that our laws for prevention of marine pollution are adequate, up to date and consistent with international law.

The International Maritime Organization has adopted a number of Conventions which are intended to reduce pollution by ships.

The most important of these Conventions is the International Convention for the Prevention of Pollution from Ships which is generally referred to as MARPOL.

MARPOL has six technical Annexes which deal with different aspects of marine pollution.

These are pollution by oil, noxious liquid substances in bulk, harmful substances carried by sea in packaged form, sewage, garbage and air pollution.

About 150 countries have adopted at least some of these Annexes.

Australia has adopted all six.

In July 2011 the Marine Environment Protection Committee of the International Maritime Organization adopted amendments to Annex IV, V and VI of MARPOL.

The main purpose of this bill is to implement those amendments in Australia.

The amendments to MARPOL, which will enter into force internationally on 1 January 2013, will:

restrict the discharge of sewage from passenger ships in special areas;

revise requirements relating to the disposal of garbage at sea; and

make mandatory the Energy Efficiency Design Index for new ships of 400 gross tonnage and above built on or after 1 January 2013 for international trade, and

make mandatory the Ship Energy Efficiency Management Plan from that date for all ships of 400 gross tonnage and above that are engaged in international trade.

This bill will also clarify the application of roll back provisions in Australia's territorial sea to clarify application of offences committed outside the three nautical mile limit.

In addition, the bill will repeal the Stevedoring Levy (Imposition) Act 1998 and the Stevedoring Levy (Collection) Act 1998 which relate to the former stevedoring levy.

Payment of the stevedoring levy in accordance with the two Acts ceased in May 2006 and the two Acts are no longer of any effect.

Since coming to power in 2007 this Government has significantly improved the protection of Australia's marine environment.

This bill continues that work.

Transport Safety Investigation Amendment Bill 2012

The Gillard Government is driving historic reforms in infrastructure and transport in Australia.

From 2013, maritime safety, rail safety and heavy vehicles will, for the first time, have nationally consistent laws.

This will cut the number of transport regulators operating across Australia from 23 to 3.

This reform will improve safety, simplify the compliance task for transport operators and boost national income.

The Transport Safety Investigation Amendment Bill 2012 supports the creation of a National Rail Safety Regulator by empowering the Australian Transport Safety Bureau (ATSB) to conduct investigations in all jurisdictions; including, importantly, extending its rail investigation function to metropolitan railway lines.

This bill and the Rail Safety National Law passed by the South Australian Parliament in May this year, replaces seven separate regulatory authorities, 46 pieces of State/Territory and Commonwealth legislation including seven rail safety Acts, nine occupational health and safety Acts, and seven dangerous goods Acts.

In 2009 the Council of Australian Governments (COAG) agreed to a national approach in regulating the safety of rail.

Three years of hard work, by all jurisdictions and industry stakeholders has delivered this historic reform.

By 1 January 2013 the National Rail Safety Regulator will be in place, established through complementary State and Territory legislation, and the ATSB's existing investigation coverage will extend to match that of the regulator.

Rail reform fixes the history of inconsistent regulatory and investigation practices between the states and territories that has constrained productivity in rail transport across jurisdictional borders.

Since 2003 the ATSB has had rail safety investigation functions and powers under the Transport Safety Investigation Act 2003.

However, until now the ATSB has been confined to investigating occurrences involving interstate rail travel.

The ATSB has limited the use of its powers on an understanding reached with the States.

This bill changes that.

For the first time, the ATSB will have responsibility for investigations on the critical metropolitan passenger and freight rail networks.

There will be more investigations across a greater range of safety matters.

In carrying out its function, the ATSB's statutory independence from the regulator and industry will be preserved.

The ATSB's focus will continue to be on improving safety rather than on apportioning blame or providing the means to determine liability.

No amendments are required to the Transport Safety Investigation Act to broaden the ATSB's role.

However, the bill will clarify the Act's reliance on the territories power in the Constitution for the purpose of the ATSB conducting investigations within the territories.

The bill also contains an amendment to enable state and territory Ministers with a responsibility for rail transport to request the ATSB to conduct an investigation in their jurisdiction.

This recognises that the states and territories are significant stakeholders in rail safety.

COAG has agreed criteria for the ATSB automatically commencing an investigation, including where there has been a death or significant mainline derailment or collision.

Further, through assessing data available from all accident and incident notifications, the ATSB will determine whether other occurrences require investigation in order to address emerging hazards and risks.

With the ATSB to assume a national jurisdiction for rail safety investigations, the ATSB will be better positioned to examine other emerging safety trends of importance to the entire industry.

The final amendment in the bill clarifies that some information the ATSB obtains and generates may be disclosed in accordance with regulations made under the Act.

While this amendment will have effect with respect to the ATSB's general investigation functions and powers, it will have immediate importance for the establishment of a confidential reporting scheme.

The scheme will cover the aviation, maritime and rail industries.

For rail it will mean the industry will, for the first time, have a national confidential reporting scheme.

This will be another important component of the national rail safety system.

This bill, along with the broader reforms being undertaken by this Government and the states and territories assures the public and all parts of the Australian rail industry, that the safety of rail operations in this country is an absolute priority.

Debate adjourned.

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

Senator LUDLAM (Western Australia) (16:13): Prior to question time, I had been speaking on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. In closing, I have some comments to add by way of context. We get so rapidly lost in this debate and it has been chased down into a dark corner. Once in a while it is worth pulling back to take a look at what is happening in the world that we are part of. In 2010, the number of asylum seekers arriving in Australian waters by boat was about 6½ thousand. But that very same year, the UNHCR estimates that there were 43.7 million forcibly displaced people in the world. That includes refugees but also internally displaced persons—those in camps or those on the move. I repeat: 43.7 million people are forcibly displaced in the world. So 0.014 per cent of them came to Australia by boat. After visiting Australia this February, the UN High Commissioner for Refugees, Antonio Guterres, urged Australians to appreciate the scale of the humanitarian crisis that they are trying to contend with and the very small—not inconsequential but, on a global scale, small—nature of our role in it. Against the setting of 57,000 people reaching Malta and Italy by boat in 2011 and another 100,000 asylum seekers reaching Yemen by boat, Mr Guterres said:

It is very difficult for me as High Commissioner, who has to deal with the whole world, to be convinced that 6000 is a very important problem.

I understand that in the psychology of Australia, the collective psychology, this is an important problem … but you need to understand also the global perspective.

He called for moral leadership and he said the risk of a populist approach by politicians was that vastly exaggerated fears 'all too easily manifest into statements and acts of xenophobia against foreigners—be they refugees, migrants or others'. That sounds familiar, doesn't it?

It is not to say that for these 6,000 people the high commissioner referred we are not primarily responsible, once they start making their way here, to make sure that they are protected, to make sure that they are not risking their lives. And if they have set out on these voyages in unseaworthy vessels with crews who are not always competent to pilot the boats in the first place, it is a primary responsibility to make sure that they are not abandoned, that distress calls are relayed immediately to emergency services, in this case the naval personnel, both here and in international waters and the Indonesian authorities. That is our responsibility. We have put a number of propositions forward. Senators Milne and Hanson-Young have detailed exhaustively what we believe should happen now without recourse to this parliament, without even being involved in how degraded this debate has become, because these things do not require legislative effect to happen now and we can be providing much safer pathways for people who do make these voyages.

While the government jumps on implementing the findings of the Houston report, or the very narrow interpretation of what those findings were, I want to recall that six months ago the inquiry into the immigration detention system made a number of findings that have simply been ignored and set aside. Just in March this year, that inquiry recommended that asylum seekers be detained for no longer than 90 days. And a majority of the joint committee found that asylum seekers who pass initial health, character and security checks should immediately get a bridging visa or be moved into community detention. One of the reasons for those findings is that indefinite detention is damaging to mental health. People are killing themselves in our immigration detention system; they are self-harming; they are sewing their lips together. They have nowhere to go, they have no idea when they are going to be released, and it is making them mentally ill. This is now a very well understood, if we are concerned about saving lives. I will not throw accusations across the chamber that members on this side do not care. Everybody cares. Nobody wants to see people drowning. I think one of the things we should have done a long time to ago was to turn down the temperature in here. Nobody wants people to die, but nor do I think anybody in their right mind wants people to go out of their minds in indefinite detention behind barbed wire, for no crime, for undetermined periods of time—and it could be forever—as a deterrent effect for those left behind. It is not only morally bankrupt, but the logic is not there. It is not going to work.

The question that I will rest my contribution on is: what happens in six or eight months time when we have got people behind cages in Nauru, on Manus and around the region, and the boats keep coming? What is going to happen when the bumper sticker that Mr Abbott has been trading under falls off the bumper? We will then realise that we have been having the wrong debate. We must protect people who try and make these voyages. We must remember why they make them in the first place. Most of all, we have to lose this delusion that locking people up is going to be more of a deterrent than the things that they are fleeing.

This debate will have to be reopened, it will have to be resumed, if this bill does not fix anything. We have stumbled down a very dark rabbit hole on a false premise that border security is somehow related to how we treat desperate people fleeing desperate circumstances. It is not just about upholding international legal obligations, although of course that is very important. But if it is not going to work then why are we doing it? If it is just a headline for today or tomorrow then not only are we selling out and doing an enormous disservice to the people who come here but it is doing damage to how we perceive ourselves as a country. We are better than this. I will be voting against this bill when we put it to the vote later this afternoon.

Senator IAN MACDONALD (Queensland) (16:20): I get sick and tired of feigned emotion like that exhibited by the lead speaker for the Greens and of the illogical arguments of the Greens and, prior to today, of the Labor Party as well. While there are some Greens senators here, can I ask them a question. We take in a certain number of refugees. We can argue all day about whether it should be 13,000 or 20,000 or 27,000 or five million, but whatever it is we have an upward figure. The question is: what do you say to one of the 250,000 refugees living in a squalid refugee camp in Breidjing in Chad when they are next on the list? They are following the UNHCR rules, they have been determined to be refugees by the UNHCR and they are sitting in that squalid camp awaiting their turn, but every time some wealthy person who can pay $10,000 a head—the sort of money people in a refugee camp in Chad could not even dream of—comes out of the system and lands illegally in Australia, that person languishing in the squalid camp in Chad has to wait another year.

Senator Ludlam was talking about a fair go, that Australia is recognised for a fair go. What is fair to those living in those squalid refugee camps in Chad if every time someone comes here ignoring the system, jumping the queue—and I will say it and say it again—then someone else suffers? That is why I have always said—and I have said this many a time before—we have to discourage those who would enter Australia illegally, jumping the queue, and be fair to all of those who have been determined to be genuine refugees. These people coming by boats are not refugees; they are asylum seekers. Their determination, their status, has yet to be determined by either Australia or the UNHCR. But there are people who have been determined as being genuine refugees living in squalid camps all over the world, waiting their turn to get to the promised land of Australia or New Zealand or Canada or Britain or the United States. But every time we take someone out of the system then they have to wait longer.

I want someone from the Greens to tell me how that is fair, how that is humane. You have certain rules and everybody follows them, and I can tell you that every one of those people in the refugee camps in Chad would be barracking for us. In fact I have to say that at the Brisbane show on the weekend when I was at the LNP booth there, I actually had some of those refugees come up to me and finger-chest me and said, 'You tell Tony Abbott he is right. We had to wait our turn. Everybody should follow the rules.' So that it is why I am here. Please get someone from the Greens. Get Senator Hanson-Young back and let her tell me what is fair about a system where those who have been waiting for five, six and 10 years in squalid camps should be put back because someone has decided to pay a criminal to get them to the top of the queue.

There are around 11 million refugees in Australia and the figures change each year. What do the Greens want us to do? Do they want us to look after them all, to take in 11 million? That would be great. I would love to be able to do it. But Australia cannot afford it. This government is going very close to breaking our country already just as the Labor government did in Queensland. It is going to be an even longer time before we can be more generous. I would like to see the Australia's refugee intake go up beyond the 13,000-odd that it currently is, but it does cost money. I know that under the Gillard government we have been wasting money by the bucketload in any number of ways. One of them is in preparing Christmas Island and a dozen other places around Australia as detention camps and employing all of these guards and people to look after them. The budget has already blown out and it would be better, I suggest, put into getting genuine refugees into the system and allowing us to put up the 13,000-odd number. But they have to be paid for and Australia has to be able to afford it. Per capita, Australia does pretty well with its refugee intake.

There is a lot more I would like to say on this bill but we are keen to get at least this small step forward through the parliament, so I and others have been asked to restrict our comment and I intend to do that. But I did want to speak to associate myself with the comments made by all of my colleagues on this side. This is not the solution. It is one-third of the solution, one part of three that have been proved to work. The first is offshore processing, which this bill will do, so we support it. But the other two, the temporary protection visas and the turning the boats around where it is safe to do so, should be implemented. I do not think this is going to be as effective as it should be.

One thing I do agree with Senator Ludlam on is that we will be back debating this. The Labor Party took six years to admit they were wrong, a humiliating backdown, but at least they are going in the right direction now and that is good. But we will be back here, because it will not work without the other two legs of the three-legged approach to stopping it. I do not have time, but I do not think that it needs me to explain how those three elements actually stopped the flow of illegal immigrants to Australia all those years ago. It worked. Why Ms Gillard was persuaded by the Greens to that policy is distressing—I know why: because she needs their support. To dump that policy that was proved to work just distresses me. We are going back to the Howard years, thankfully, but we are only one-third of the way. We need to do the other two parts and I look forward to the day when we can do that so it does provide a fair go for all of the refugees who unfortunately exist on our planet.

Senator XENOPHON (South Australia) (16:28): The subject matter of the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012—people-smuggling, asylum seekers, their humane and fair treatment, the loss of life at sea—presents a complex and diabolical problem. This is not an easy decision to make. I have always preferred the idea of onshore processing. I believe that when people come to our country seeking asylum, we take on the responsibility for their welfare while they are processed. But since late 2001, at least 964 asylum seekers have perished at sea. They are the ones we know about. It is the ultimate tragedy that people who are so desperate have risked everything and lost their lives. We all do not want to see another life lost in this way. If this legislation will go some way towards achieving that aim, then I cannot in good conscience oppose it.

What is proposed is far from the ideal option, but it is the one that is before us today. It is a classic Hobson's choice. Right now we have to decide to take it or leave it. The asylum-seeker debate is one fraught with passion and angst. While many of us in this place may have drastically different opinions, I do not believe for a second that any of us do not realise the heavy responsibility that we face today with this legislation. Not one of us wants to see desperate people hurt or abused or damaged further. I will be moving a second reading amendment calling on the government to commission a further report by the expert panel on asylum seekers within 12 months of the commencement of this bill.

The ACTING DEPUTY PRESIDENT ( Senator Cameron ): Senator Xenophon, we already have one amendment before the chair. You can foreshadow your amendment and when Senator Abetz's amendment has been dealt with you will have an opportunity to move your amendment.

Senator XENOPHON: Mr Acting Deputy President, I am very grateful for your procedural guidance and I will do so

The report that is proposed in the second reading amendment will look at any human rights or other issues that have arisen from this legislation, as well as considering whether it has been successful in reducing the number of people attempting to reach Australia by boat. The government will also be required to release and publish the report within 14 days of its receipt.

My intention with this amendment is to put in place some sort of safeguard to make sure we are on the right track and that this legislation is achieving its aims. It will also ensure that there is further debate on these issues and that this legislation needs to be constantly monitored to be scrutinised properly. Many would say this is only the first step, because we need to make sure that appropriate regional cooperation is in place to make sure that this proposal operates properly.

Human rights issues are, of course, vitally important. Australia still has a moral and ethical responsibility for the people who are moved offshore under Australian legislation. We must take every step to ensure that people are treated fairly and humanely and with dignity and respect. A further review of this legislation is also necessary to make sure it is acting as an appropriate deterrent for people smugglers and those desperate enough to try and reach Australia by boat. The ultimate aim we are trying to achieve is fewer people risking their lives in this dangerous crossing, and we need to know that this legislation is working.

I also want to make it clear that we should not consider the passing of this bill as the end of the issue. The government has already agreed to increase Australia's humanitarian intake from 13,000 to 20,000 places a year, rising to 27,000 within five years. I strongly support this. We are a big country with a big heart. We have the capacity to welcome more refugees and we should exercise that capacity.

Even if we succeed in reducing the number of people undertaking the dangerous journey to Australia by sea, we cannot forget that it does not reduce the number of refugees in the world or even in our region. We have a responsibility to do all we can for these people; we must make sure that this increase does not make us complacent, and that the knowledge of 'doing good' makes us forget those waiting in offshore in camps.

Last night on the ABC's 7.30 program, UN High Commissioner for refugees, Richard Towle, pointed out the known dangers of detaining people for long periods of time in remote camps. He said:

Clearly one of the lessons from the past experience under the Pacific Solution was that protracted, prolonged displacement in far-flung islands of the Pacific very rapidly causes serious and long-term psycho-social harm to people. We do not want to go back to those experiences.

But we can also only imagine the irreparable mental harm refugees suffer when they witness loved ones dying at sea.

The government has already stated that it will work with the high commissioner on the details of setting up regional processing centres, and that is a good thing. I support the government's position on this and I strongly encourage it to begin this consultation as soon as possible. I also want to note the comments of the 2010 Australian of the Year, Professor Patrick McGorry—an expert in mental health, and a person for whom I have a very high regard. Professor McGorry was not afraid to speak out against the government both during his time as Australian of the Year and more recently, and he, too, has very serious concerns about the mental health impacts of offshore processing. These are wise voices, and we can listen to them and learn from them.

We also cannot forget the many legal issues surrounding this debate. I acknowledge that the government is seeking to resolve some of these issues, including the treatment of minors. We also need to focus on appropriate sanctions for people smugglers—not so much the crews, who are often under duress, and we have seen evidence of that more recently—but the individuals, the masterminds who are operating these networks and who profit from human misery. These aspects are vital to the functioning of this legislation.

I support the steps that the government has taken so far, and I call on them to continue to be open and transparent with the Australian people as far as these difficult legal issues are concerned. This is a debate that has affected the entire country for many years. We all feel deeply about what should or should not happen, and now that we are working towards a possible solution we must recognise the personal stake many Australians have in this argument.

I would like to take this opportunity to recognise the work done by the expert panel on asylum seekers, comprising the former head of the defence forces, Angus Houston, refugee advocate, Paris Aristotle, and Professor Michael L'estrange, the former head of foreign affairs. I think it is a strong endorsement that Paris Aristotle has supported the recommendations of the report, given his long history of supporting refugees in Australia. I understand that this was a very difficult issue for him. Given his previous strong opposition to offshore processing, some have criticised him for changing his approach. But in reality he faced the same challenge we are facing today: weighing up the risks of more deaths at sea versus the need to support and accept those seeking asylum. In an article in the Sydney Morning Herald yesterday Mr Aristotle summed up the dilemma:

When you're confronted with that reality—

of deaths at sea—

… and you have the capacity to try and construct a different way that would prevent that but, at the same time, provide thousands more people with protection, and you decide not to do it for whatever reason, then I can't really live with myself on that basis.

I don't want to stay awake at night thinking about this issue and imagining how terrified a young kid or a woman would be in a violent ocean, slipping below the waterline with no one around to save them or protect them. The images of that are just too horrific.

He is right. It is just too horrific.

Mr Aristotle went on to stress the importance of a regional framework to replace the current chaos and to establish a better and more humane way of dealing with asylum seekers. I agree with him. We must not forget that this is only one stage of an incredibly complex issue and an incredibly complex process, and I hope that the current and any future governments will commit to seeing it through. But as Mr Aristotle said:

There are risks that we're going to have to monitor carefully, and work hard to ensure that they don't result in damaging people. But there are greater risks with doing nothing.

I believe the intentions of this legislation are, on balance, good, and that a further report by the expert panel will give us an indication of whether the bill can live up to that intention.

I want to emphasise that this is not the end of this debate there is more, much more to be done. Offshore processing must not be a case of 'out of sight, out of mind' because this is ultimately not about plans, or intentions, or numbers, or statistics, or pictures on a screen or political debates. This is about our fellow human beings, and it is our duty to do our best by them.

Senator BOB CARR (New South Wales—Minister for Foreign Affairs) (16:36): I am not closing the debate on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. Twelve years ago I had the honour of being Premier of New South Wales, charged with the responsibility for the Sydney Olympics. Together, with the support of all of the people of Australia, we helped present to the world what came to be called the spirit of Sydney 2000. It was that spirit—the spirit of the people of Sydney and the people of Australia—that brought the games to such glorious success. We were able, with good heart, to emphasise the welcoming and generous character of the people of Australia. We told the world of our pride in our diversity.

That spirit was based on a profound reality—the great changes that had transformed this nation as a result of the bipartisanship which had prevailed on all matters relating to immigration for more than 40 years, going back to the prime ministerships of Harold Holt, John Gorton and Gough Whitlam. Here let me recall how that bipartisanship prevailed even in the bitter period after 1975 when the Fraser government had to deal with the issue of the Vietnamese boat people. To the credit of all parties and to the enduring benefit of Australia, Australian humanity and the essential decency of the Australian people, those policies won over party politics. Could there be a finer example of where bipartisanship and true national interest went hand in hand? That is the first perspective I ask the Senate to take towards the legislation arising from the Houston report. When it comes to the response of the Australian people, when they make their considered and informed judgement, I will back the spirit of Sydney 2000 over the spirit of Tampa 2001 any day.

My second perspective is Australia's special position as a nation of immigrants. Nobody disputes the fact that it is for Australia and its government, parliament and people to decide who comes here. But our responsibility for decisions about immigration, including refugees, is only part of the story. The overwhelming majority of us belong to families whose members as individuals made the historic decision to come here—a quarter of us within this generation. Australia is made up of millions of individual stories, and some of the most inspiring of those Australian stories are told by refugees and the Australian children of refugees. Australia should be the last country in the world whose political leaders or media should seek to demonise or dehumanise refugees from any quarter.

The third perspective is Australia's international standing and reputation and, let me emphasise, our international obligations. We have accepted these obligations for more than half a century—binding obligations under the 1951 refugees convention and the 1961 Convention on the Reduction of Statelessness. We have solemnly accepted these obligations, and they cannot be treated as something optional, to be set aside when inconvenient. We are bound equally by international covenants such as the Law of the Sea. Through our domestic implementation, these are all laws of this Commonwealth as much as any other legislation passed in this parliament. In the context of international laws and covenants by which we are bound, when you have said, 'Stop the boats,' you have said nothing. As a significant maritime nation, this island continent depends more than any other country on the order and stability underwritten by the observance of international laws and covenants.

After the United States and Canada, Australia has the largest annual humanitarian intake. Last financial year our intake was nearly 13,750. Including this year's expected intake, over the past five year our intake amounts to nearly 68,000 people. In the last 65 years, Australia has resettled over three-quarters of a million people through our humanitarian intake. As the United Nations High Commissioner for Refugees, Antonio Guterres, said during his address to the Lowy Institute for International Policy this year:

Australia’s continued commitment to taking in thousands of refugees each year, often from some of the most protracted situations in Africa and Asia, is to be commended. On a per-capita basis, Australia is UNHCR’s biggest resettlement country.

In 2011, Australia was the eighth largest donor to UNHCR, providing a total of $49 million, and our contribution to it has been increasing annually. Last year our core contribution was up by 11 per cent. Next year our contribution will increase by 12.5 per cent.

At present there are 43.7 million displaced people around the world, almost twice the population of Australia. Of these, more than 10 million are refugees. Four point three million people were newly displaced last year. That is a record for forced displacement around the world. Push factors are very real. The changing nature of forced displacement is testing the whole international humanitarian system. The whole situation is growing in complexity. According to Mr Guterres:

Conflict and upheaval, the traditional drivers of displacement, are increasingly compounded … by a number of inter-related and mutually reinforcing global trends. These include population growth, urbanization, food and water scarcity, and, most dramatically, the effects of climate change.

Two point seven million people have fled Afghanistan, 1.4 million have fled Iraq and 1.1 million have left Somalia. More than a quarter of Somalia's population has been displaced by conflict, violence, drought and famine. The UNHCR estimates—this is a very current example—that one million people have already been internally displaced in Syria and 1.5 million people inside Syria are in need of assistance. A hundred and fifty thousand people have fled Syria. They are living in Jordan, Lebanon, Turkey and Iraq. Just consider this: close to a quarter of them are children. Closer to home we have seen pressures in the region. In Myanmar, for example, at the current time poverty and discrimination are leading to the movement of ethnic minorities through that country and beyond it.

Few refugees return to their country of origin. Last year, for example, out of an estimated global refugee population of 10.4 million, only around 532,000 were repatriated voluntarily. That was the third lowest number of voluntary returns of refugees in a decade. As Mr Guterres said in his speech on the 60th anniversary of the refugee convention in December last year:

Resettlement opportunities also still fall far short of requirements, with spaces available for only ten per cent of the nearly 800,000 refugees needing resettlement worldwide today.

A protracted refugee situation is one where at least 25,000 refugees have been in exile for more than five years. If you use that definition, nearly two-thirds of the world's refugees—over six million people—are in protracted refugee situations. The burden of this is falling on less developed countries with less capacity than Australia to shoulder such a burden. The largest refugee-hosting countries in the world last year were Pakistan, Iran and Syria. It is estimated that Pakistan, for example, hosts 1.7 million refugees.

The government has taken steps to pave the way for this bill. The Prime Minister spoke with the President of Nauru and Prime Minister of Papua New Guinea on Tuesday. We already have an MOU in place with PNG, and PNG's prime minister, Peter O'Neill, has confirmed with the Prime Minister that his government's position on this remains unchanged. I spoke with the PNG foreign minister on Tuesday, and he reaffirmed PNG's willingness to work with Australia in developing responses to this challenging regional problem, including the establishment of a regional offshore processing centre on Manus Island. On Tuesday I instructed officials from my department to proceed immediately to PNG and Nauru to discuss next steps with government officials on implementation. Our High Commissioner to Nauru has spoken to the President of Nauru, who is supportive of Nauru's involvement in offshore processing arrangements. A reconnaissance team of officials will also visit there later this week to discuss implementation of processing centres in these locations.

But let me be clear: this is part of a larger plan. Mr Aristotle, whose work is so appreciated and observations are so valuable on this matter, articulated this plan:

… we want to build a system and the centrepiece of this is not Nauru and Manus. Everybody has been focusing on those things because of the politics, but the centrepiece is all about creating a proper and fairer system in the region for people to apply to - one that would be safe and produce outcomes in a more timely way

He said that in the Age on Wednesday. This is exactly what this government has been doing. As co-chairs of the Bali process, we are already working closely with Indonesia through the recently established Bali Process Regional Support Office to develop initiatives for cooperation under the regional cooperation framework.

The Houston report offers a course of reason, compassion and integrity. The people of Australia rightly expect us to protect the integrity of our borders. They expect us to preserve the integrity of Australia's international reputation. They expect us to observe the integrity of our humanitarian obligations. They expect us to maintain the integrity of our Defence Forces and their proper role in the protection and integrity of our shores. It goes without saying that in such a complex matter there will be—there must be—compromise, revisions, changes and flexibility. But compromise along the lines of the Houston report and this legislation does not mean any loss of integrity in pursuit of our national, regional and international interests and objectives, nor do I for one deny the legitimate contest of the political parties in this or any other matter. It is the lifeblood of a parliamentary democracy. But I do believe that we shall best serve Australia and best help save lives if we return to the spirit which informed the debate and moulded policy during the last three decades of the 20th century. In this spirit I commend the bill.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (16:48): How often have we heard it said that the road to hell is paved with good intentions. That, I think, is what has characterised this debate, which tragically has waged now for four years and which tragically has cost an unknowable number of lives. But we do know that that number is in excess of 600. It may be many more.

I do not have any doubt about the good intentions of Senator Chris Evans when, I remember, he stood up in this chamber in August 2008, almost exactly four years ago, and said how proud he was to be announcing the abandonment of what he called the inhumane policies of the Howard government. I do not doubt his good intentions and I do not doubt his good faith.

But good intentions are not enough. If you are to govern, you have to make hard decisions; and, sadly, four years ago the government, then led by Mr Kevin Rudd, found itself incapable of making a hard decision. It made a self-indulgent decision. It decided in the name of a phony appeal to humanitarian values to abandon policies which demonstrably worked and to instate policies which I am bound to say the opposition warned at the time would imperil lives. And what is even worse and more culpable is the fact that with the passage of the years, as it has become clear beyond argument that a terrible policy error was made in August of 2008, that the warnings the opposition sounded in August 2008 had tragically turned out to be true, this government, under two successive prime ministers—Mr Rudd and Ms Gillard—adhered stubbornly to those failed policies as people were drowning and as Australia's borders came to be out of control.

Do you know, Mr Acting Deputy President, how many unlawful asylum seekers have come to Australia during the life of the Rudd and Gillard Labor governments? As of today, as best we can estimate, 22,718. And that does not include the more than 600 souls who perished at sea. The number of boats that have arrived since the election of the Labor government in the last less than five years is 389. In the six years during which the policies of the Howard government were in operation—the policies that Senator Evans was so proud, in the name of humanitarianism, to repeal—there were 16. That is fewer than three a year. Those figures are not in controversy; they are not in dispute. They are the empirical evidence of a catastrophic policy failure with unimaginable human consequences. Yet through four long years, under two prime ministers, this Labor government adhered stubbornly to that catastrophic policy failure.

I am glad that at least in respect of one of the three elements of Mr Howard's successful policies—that is, offshore processing and the reopening of the Nauru and Manus Island detention centres—the government has finally seen the light. I cannot begin to understand why the government still stubbornly refuses to adopt the other two of what has been called the three-legged stool of policies that as a suite, as a group of policies, worked—that is, temporary protection visas and turn-back of boats when it is safe to do so, as it sometimes though not commonly is. I do not understand why a government that admits that its policy has failed, admits it has to go back to the Howard government's policies, would adopt only one of the suite of three. But, nevertheless, the opposition supports this bill because it is some progress.

I do not want to rehash arguments that I made in this place when the matter was last debated before the winter recess, but I listened carefully and respectfully to Senator Bob Carr's contribution a moment ago and I could not help thinking to myself: 'Senator Carr, why didn't you say that seven weeks ago when the matter was last before the Senate? What has changed in seven weeks?' All that has happened is that the government at long last has realised that it was wrong, and yet it has lacked the grace to say so.

We as members of parliament are all fallible human beings. We all make mistakes. Governments of both political persuasions sometimes make mistakes. This was a particularly catastrophic mistake. It had unimaginably sad human consequences. But, having accepted that a mistake was made, having accepted the need to go back to at least one of the key Howard government policies after four years defiantly hurling every insult and all manner of abuse at the opposition for advancing the very argument the government now accepts, why wouldn't you at least have the grace to acknowledge to the Australian people that you got it wrong? I do not think people would think less of the government if they did that. I actually think they would think more of the government if they did that. But, in any event, we have had the same level of intellectual dishonesty after the backflip as we had for four years before the backflip.

The opposition welcomes the government's decision to restore one of the important elements of its successful policy. We hope it works. We have no confidence in the absence of the other two elements of what was a package of policies that it will work, but we hope it does. But we cannot, I am bound to say, have a great deal of respect for a government which, having embraced policies for four years in the face of all evidence and all reason, which it roundly and utterly condemned, now embraces that very policy and yet still decides to politicise this issue by attacking the opposition.

Senator LUNDY (Australian Capital Territory—Minister Assisting for Industry and Innovation, Minister for Multicultural Affairs and Minister for Sport) (16:58): I would like to thank all honourable senators for their contributions to the second reading debate on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill. I remind senators that this bill has two very clear purposes. The first purpose is to tackle people-smuggling and reduce the tragic loss of life at sea that is too often a consequence of people making the dangerous journey to Australia by boat. Secondly, these amendments will ensure that those people who arrive by boat will receive no advantage in their processing. The background to this bill is long and, in many ways, unfortunate. This bill was first introduced in the wake of a High Court decision that turned on its head the common understanding of the executive power to transfer offshore entry persons to third countries for processing of their claims. That decision belied past practice and belied the government's legal advice.

In response, the government moved immediately to legislate to restore to the executive the power that had previously been understood to exist. I remind senators that the rationale for these amendments was to tackle people smuggling, the distressing consequences of which we have seen repeatedly in the months since. The government believed, and believes, that arrangements such as the one struck with Malaysia are the best way of going about this. These arrangements ensure proper protections in the recipient country, provide more refugees in need with effective protection, and discharge Australia's moral and legal obligations.

However, the opposition sought to quibble with the Malaysia arrangement. So, instead of passing the government's previous bill, the coalition set about a course of obstructionism under the fig leaf of an amendment that Australia should only deal with countries that have signed the refugee convention. No matter that Nauru had not signed the convention when John Howard sent asylum seekers there from 2001; no matter that convention signatory countries include our largest source countries, Afghanistan and Iran, as well as countries such as Sudan and Somalia; no matter that the opposition's own policy is to tow asylum seeker boats back to Indonesia, which is not a signatory to the convention; and no matter that most of the countries in which most asylum seekers in our region wake up in the morning are not signatories to the convention. The government engaged in all manner of efforts to broker a compromise, in the same way that John Howard had enlisted Kim Beazley's cooperation in 2001 to permit the transfer of asylum seekers to Nauru.

I remind the Senate that, if Mr Beazley had not given the Howard government his support in 2001, there would have been no offshore processing at Nauru and no Pacific solution. The Senate needs to be reminded that, since January this year, the government, in the spirit of compromise, put offshore processing at Nauru on the table, as boats continued to arrive and lives were put at risk, and the current opposition continued to oppose in what has become a well-earned trademark of the word 'no'.

The opposition calculated that the national interest was secondary to political ambitions, to a desire to see boats arrive or not arrive for their own narrow interests. So the government sought a new approach; a fresh approach. We engaged a panel of undisputed experts to prepare a holistic report and provide recommendations on the best way forward. Former Chief of the Defence Force, Angus Houston, former secretary of the Department of Foreign Affairs and Trade and Liberal Party policy adviser, Michael L'Estrange, and a man who has made caring for refugees his life, Mr Paris Aristotle, worked intensively and single-mindedly on their report over the past six weeks. The government received their report on Monday and has given in principle support to all 22 recommendations.

As the Minister for Immigration and Citizenship summed up yesterday in the House, this key principle, which underpinned the Houston panel recommendations, means that those people who can afford to come or are inclined to come to Australia by boat are not given advantageous treatment over those who are waiting elsewhere for resettlement in Australia. I remind senators that this bill will achieve these objectives by giving effect to recommendation 7 of the Houston panel report, which recommended that:

… legislation to support the transfer of people to regional processing arrangements be introduced into the Australian Parliament as a matter of urgency.

The bill before the Senate today, passed by the House yesterday, is designed to enable the government to transfer asylum seekers arriving at excised offshore places to designated regional processing countries for the processing of their claims while ensuring their protection from refoulement.

These amendments will allow the government to lawfully work with regional partners to implement regional offshore processing. These amendments are one part of a regional solution and the government will pursue a holistic approach, as the Houston panel report makes clear, by measures such as progressing processing on PNG and Nauru, increasing the number of places under the humanitarian program and pursuing the introduction of the Malaysia agreement. With this holistic approach we will save people's lives and break the trade of people smuggling. I commend the bill, as amended by the government's amendments, to the Senate.

Senator HANSON-YOUNG (South Australia) (17:05): I seek that we put section (a) and section (b) separately.

The ACTING DEPUTY PRESIDENT ( Senator Pratt ): The question is that section (a) of Senator Abetz's amendment to the second reading motion be agreed to.