Senator SIEWERT (Western Australia—Australian Greens Whip) (09:31): I am very pleased that this chamber is finally able to debate the Low Aromatic Fuel Bill 2012, because unfortunately, despite the very serious and sustained efforts to end it, petrol sniffing is still persistent in some areas of Australia.

Over the past 20 years it has been the subject of reports, coronial and other inquiries and research projects. The impact of petrol sniffing on Aboriginal and Torres Strait Islander individuals and communities is very well documented and well known. The petrol-sniffing inquiry, in fact, was one of the first committee inquiries that I participated in in this place back in 2005-2006. The committee recognised that the situation with petrol sniffing in Australia was dire, and since that inquiry I am very pleased that there has been considerable movement on this issue.

We do now have a petrol-sniffing strategy and we have seen great progress all over Central Australia in dealing with this problem. There are very good programs that are supporting communities in their goal to eradicate petrol sniffing. Most fuel stations in the targeted areas have switched to low-aromatic, non-sniffable fuel or, as it is known, Opal fuel, resulting in a 94 per cent drop in petrol sniffing. That is according to the government's assessment of the success of the program.

But, unfortunately, there is still petrol sniffing occurring, and there are recurring outbreaks. One example that CAYLUS, which is the Central Australian Youth Link Up Service, spoke to Lateline about when they were presenting submissions and evidence to the latest inquiry, the inquiry into this bill, is:

There was one outbreak that sort of spread like wildfire through the Western Desert, which was 12-year-olds, the average age was 11 or 12. A kid came in and showed other kids how to do it and off it took.

When it was managed to be stopped in one community, one of the kids went to the next community and started it up there, and there were another 12 kids sniffing there. It took a couple of months of serious work by a lot of people to bring that one back under control.

As I said, that was some of the evidence that CAYLUS gave to the inquiry.

This occurred because, unfortunately, sniffable fuel is still readily available in some places. These outbreaks are very closely linked to gaps in the rollout of a non-sniffable fuel. These gaps exist because up until now we have relied on suppliers signing up to this process voluntarily. Currently, the government designates target areas under the strategy for non-sniffable fuel use, and then works and lobbies petrol station owners to have Opal or non-sniffable fuel replace regular unleaded fuel. Of course communities and service stations can also receive Opal on request, and this is part of the strategy for rolling it out. However, where petrol suppliers fail or refuse to collaborate, the problem of petrol sniffing and its associated horrors is more likely to occur; in communities close to those petrol stations that refuse to engage with supplying Opal fuel, you can track outbreaks.

CAYLUS provided an example from my home state of Western Australia where, up until the rollout of Opal in Laverton, the owner of one particular service station there had been refusing to stock Opal for a number of years. Fortunately, there was a change of ownership and the new owners agreed to stock Opal. That has had a dramatic impact in reducing the number of sniffers. The association between dealing with petrol sniffing and the rolling out of Opal is very clear.

We have been gathering evidence on this for quite some time. The Senate Community Affairs Legislation Committee inquiry into this bill has clearly documented the success of the rollout of the Opal fuel program. But it has also shown firsthand that the categorical rejection of Opal fuel by a small minority, with what some witnesses called a 'pig-headed response', is where we have been struggling. As I have articulated, that is where we have the gaps. This is why we believe that it is very important that the government have the power to mandate the use of low-aromatic fuel. We believe it is essential, because we absolutely need that power to be able to plug these gaps in the sniffing strategy.

As of February this year, there were at least eight, and possibly more, retailers who have consistently refused to stock low-aromatic fuel. Evidence collected by CAYLUS suggests that these refusals have resulted in further sniffing incidents. We heard about those during the Senate inquiry.

According to CAYLUS, there have been areas of concern in Papunya, Lake Nash, Titjikala, Alice Springs, Kintore, Ti Tree, Canting Creek and a number of other places. These are the current places where we understand—the evidence has come in over the last six months—that there have been sniffing outbreaks. For example, Lake Nash is very close to a pub over the border in Queensland, Urandangi, which stocks sniffable fuel. That is, sniffable fuel is run into Lake Nash, which is trying really hard to deal with issues around petrol sniffing. Because cars can carry it across the border, it is really easy to bring it into Lake Nash. Because petrol sniffing does not contain itself within state borders, there needs to be a national approach to mandating fuel supply in designated zones rather than leaving it up to individual states and territories, as the federal government has previously proposed. We believe that it is essential to have a nationally coordinated response.

The Senate inquiry heard evidence to this effect from the Warlpiri Youth Development Aboriginal Corporation, who said:

Warlpiri families come and go across state borders so, for maximum impact, we would like to see this legislation applied to Western Australia, Queensland and South Australia as well as the Northern Territory. We know that Opal fuel has proven effective but, unless the sale of Opal is mandated, and across the broader region, there is a real danger of sniffing outbreaks and devastating consequences.

The evidence I have heard for over seven years now clearly shows that controlling access to sniffable fuel can have, and does have, a significant impact on the ability of communities to prevent harm coming to their young people. Organisations in Central Australia, health and drug services, and individuals from affected communities have all voiced their support for this particular legislative approach, and that was very clear through the inquiry process but also from sustained lobbying over a number of years. This has been on the cards for a long time because we know there have been significant gaps in the strategy.

I am not for one minute at all trying to run down what has been achieved so far. It has been an outstanding program of success. It is one of those programs where we can all stand really proudly and say that there has been multiparty support for this and it has been a success. So why not capitalise on that success? We are almost there in dealing with this problem of petrol sniffing.

Although we have had this comprehensive program provided, there are gaps. We know that Opal fuel on its own cannot achieve the stamping-out of petrol sniffing. We know that it has to be part of a comprehensive approach. It is absolutely crucial, because it buys time in order to get in with youth diversionary programs and the other support programs such as drug and alcohol support programs. We know that it is successful but we also know that, unless we deal with these areas of outbreak associated with sniffable fuel, we will continue to undermine that success.

As has been articulated to the Senate inquiry and to me personally, the gains achieved to date through the rollout of Opal fuel are critical and crucial, but they are also fragile. We currently have a generation of children in much of the region who have grown up free of a sniffing culture. However, due to what we believe are the irresponsible decisions of some retailers, the sniffing culture appears to be once again rearing its head in some sites. We know from hard experience that sniffing, once established in an affected community, can rapidly spread. It is an epidemic we do not wish to relive. Again, that was evidence from CAYLUS during the Senate inquiry.

Though the provision of low-aromatic fuel is not on its own a solution, it is absolutely critical to a holistic approach. CAYLUS has had long experience in the field—and I think senators who have had any dealings with CAYLUS will know that they are one of the most respected youth services in Central Australia and that they have played a critical role in dealing with the issue of petrol sniffing. As CAYLUS said:

We were doing this before Opal, and we would try all the other measures. You could start a youth program in a community and you would get a lot of the sniffers to stop but not all of them. But once you have Opal in a community the sniffing stops and then the youth programs can really go because they are not competing against people who are off their faces all the time.

The importance of Opal has been clearly demonstrated. All it has lacked is the final part to ensure that the petrol-sniffing strategy has the capacity to proceed in the face of consistent denial from the petrol station owners. As Andrew Stojanovski, who was awarded the Order of Australia Medal for his work at Yuendumu in setting up the Mount Theo Petrol Sniffing Prevention Program, told the committee:

Opal is a solution that governments and communities can readily implement. Its use in Central Australia has really taken the pressure off communities and provides a breathing space where community workers can actually focus on programs that address the personal and social issues underlying petrol sniffing. When sniffing is rife in a community it is near impossible to do this, the power, violence and dysfunction caused by sniffing is too overwhelming.

This is why I have introduced this bill as a private member's bill—because we have spent so long working in a collective effort to address the issues of petrol sniffing. This is the element that the communities have said is missing from the strategy. They have been lobbying for a long time for this. We have had three Senate inquiries. The Senate inquiry in 2009 found that the Opal program was overwhelmingly successful but it identified this gap and said that if retailers were refusing to stock Opal fuel or low-aromatic fuel the government should proceed to mandate the stocking of Opal fuel.

This is why I am bringing this bill to the chamber. The government has not brought it on. There is overwhelming support. I was lobbied very heavily by the communities in Central Australia, who need this vital element to make sure that they can control petrol sniffing in their communities. This is also a very powerful tool. The communities have also been lobbying heavily for this so that they can then implement their other youth programs, the diversionary programs, and work to really address the underlying causes of petrol sniffing.

This bill will give the minister the power to mandate low-aromatic fuel and make it an offence to supply regular fuel in these places. It will also give the minister the power to create fuel control areas by legislative instrument, which will give the minister the capacity to tailor the measures to the particular community—after consulting them.

Consultation and flexibility are at the heart of these measures because this bill is about helping communities affected by petrol sniffing by complementing the existing strategies and programs. Consultation has been a very big part of the development of this bill. I believe this has been an effective process. We developed the bill in consultation with and with feedback from communities. We made sure it got referred to a Senate inquiry. The overwhelming number of submissions to the Senate inquiry supported this bill and very strongly endorsed this approach. We have taken on board the feedback from the Senate inquiry and subsequently will amend the bill. We have consulted again on those measures. We have talked to as many of the stakeholders as we possibly can and, as I said, we have received overwhelming support for these measures.

I will discuss the purpose of the amendments in the committee stage, but I want to acknowledge the many people who participated in the Senate inquiry. We were pleased to see the proper process of consultation and committee inquiry work here—the idea being that, when you bring a bill to the Senate, it goes off to inquiry, you get feedback and you make amendments in response to that feedback. So, where a bill is not perfect, in response to very sensible review and comment you can make amendments that reflect the feedback from the community. I stress again: this bill has the strong support of Aboriginal organisations, health organisations, community organisations, individuals and communities. They want the minister to have the power to mandate the supply of low-aromatic fuel because it is absolutely critical to dealing with the scourge of petrol sniffing.

I have been in communities and seen for myself the impact that taking away sniffable fuel has. As CAYLUS said, it provides the window of opportunity for people to get in and deal with the other, underlying causes of petrol sniffing. During the committee inquiry, some of the concern was that, if you take away sniffable fuel, people will switch to other forms of substance abuse. The evidence in fact does not support that. The evidence supports the idea that this does provide a window of opportunity to give youth in particular another chance to address those underlying causes and have sufficient diversionary programs so that these youths can move completely away from substance abuse.

When petrol stations just pig-headedly refuse to stock Opal fuel, this bill gives the government or the minister, after they have carefully consulted, the capacity to say, 'You know what? You really need to stock non-sniffable fuel.' As the evidence to the committee inquiry overwhelmingly demonstrated, when people can get access to sniffable fuel and run that into communities, that is where you get petrol-sniffing outbreaks. Again, the evidence overwhelmingly shows that that is the case. Once somebody starts petrol sniffing in a community, it is very easy to get other kids sniffing, and then it moves on to other communities.

As I said, this bill has the overwhelming support of the community organisations that we have consulted. We have consulted them extensively and, under the bill, the minister will be required to consult as well. So it is not as if this is something that the minister can apply willy-nilly to the states and territories in Australia. The minister will need to consult under this bill. It is the missing piece to finally dealing with petrol sniffing, which can so devastate our communities. Petrol sniffing has largely occurred in Central Australia, but it does occur elsewhere and it is increasingly occurring in the north of the Northern Territory and in Western Australia around Warburton, Laverton, which I have already discussed, and in some places in the Kimberley. We need the minister to have the power of mandate where we see this sort of thing happening and where service stations are simply refusing to stock Opal. It is not good enough that these pig-headed service station owners can undermine the effectiveness of what is such a good program—where Australia can rightly hold its head up high and say, 'We took action to address this issue.'

Amendments will be circulated in the chamber and will be discussed in the committee stage. I very strongly commend this bill to the chamber. It is that final link in addressing the issues around petrol sniffing, and it has the overwhelming support of the community. I am absolutely and totally convinced of that.

Senator CROSSIN (Northern Territory) (09:50): I rise to add my contribution to this debate on the Low Aromatic Fuel Bill 2012. I recognise Senator Siewert's passion and endeavours in this area but might use my opportunity this morning to also correct some of her statements.

Petrol sniffing has been around in the Northern Territory for many, many decades. When I arrived at Yirrkala in 1981—and I have spoken about my experience in that community many times in this chamber—I saw firsthand the impact of petrol sniffing. That was over 30 years ago. In fact, in 1983 my husband specifically had a group of 15 post-primary boys in his class who were all petrol sniffers. It was a specific educational strategy that we designed at Yirrkala School to try and stop those boys from sniffing and to get them re-engaged in education. It was very difficult—extremely difficult—because there were no designated youth programs; there were no low-aromatic fuels back then. It was not until the 1990s that avgas was introduced across the Top End, specifically in Maningrida, I think. Chris Burns owes his doctorate to the research he did into avgas and its impact on petrol sniffing. Then, of course, it was not until 2005 that BP finally came up with the low-aromatic fuel that we now call Opal.

So a solution that would actually turn off the tap here has only been around since 2005, and that then led to the first Senate inquiry being initiated in 2006. Petrol sniffing is not just confined to Central Australia—not at all. I have lived with and am related to Indigenous families in north-east Arnhem who have watched their adolescent children diminish mentally, drastically, over the years to the point where they are chronically mentally ill. It saddens those families. It saddens me.

The other thing I want to say, Senator Siewert, is that this is not the last chapter in this book. This is not the last rung in the saga of petrol sniffing, because what we still need to do is have rehabilitation places right throughout Central Australia, the Top End and probably in Queensland and WA that cope with those adolescents and young adults who are mentally ill as a result of petrol sniffing. I know, for example, that the families at Yirrkala struggle because there is no rehabilitation facility in Gove and the ones in Darwin are completely inadequate. We know that in a place like Gove this bill will be very hard to implement because of the town and the situation there. At Jabiru we will have the same problems and similarly in Katherine. So there will be a need to embark on a lot of concentrated work and effort which goes to education, consultation and negotiation in order to get this bill implemented. There are still many years ahead of us to make sure that we do turn off the tap to regular unleaded petrol and just roll Opal out in remote communities.

The other rung that we will need to look at is extending the youth programs. If I had 20 minutes I could spend my whole time singing the praises of the Central Australian Youth Link Up Service and the fantastic work that people like Blair McFarland, Tristan Ray and their co-workers have done in highlighting the impact of youth services, combined with diminishing the reliance and dependence of youth on petrol for sniffing. That is a fantastic youth service and they work really well with people like the Mount Theo mob and Susie Low, but they are also confined to Central Australia. It would be my dream to give CAYLUS enough funding for them to become the Northern Territory youth link-up service, not just the Central Australian Youth Link Up Service, because I think they have the capacity to extend the work they do right up the Stuart Highway and right across the length and breadth of the Northern Territory.

I am surprised that there has not been a call to ensure that, as we mandate low-aromatic fuel in petrol stations, we also mandate the funding for an expansion of CAYLUS, so that as we turn off the tap and do not give young men, particularly, a reason to sniff this fuel we also provide them with the alternative. It is fine to have a bill in here for low-aromatic fuel to turn off that tap, but what I also want to see is the other side of the scales being balanced and the additional funding being provided so that an organisation can expand and provide these young people with an alternative.

There are a number of amendments that clearly need to be made to this bill in order for it to be passed. But let me be very clear that this Labor government has worked laboriously and closely with stakeholders to introduce voluntary compliance of suppliers with using low-aromatic fuels. Success in Indigenous health policy takes time, and the voluntary rollout of the low-aromatic fuel Opal over time has made a 70 per cent difference to the plight of petrol sniffers in Australian communities. So we know it works. This bill is about trying to take the next step.

We have worked hard to introduce Opal in areas around Australia. In 2005 the first Petrol Sniffing Strategy was announced; however, the plan was only partially implemented by the then coalition government. Since 2007, when we came into government, we have worked closely with the private sector, with governments at all levels and with NGOs to address those gaps and to achieve implementation of a successful Petrol Sniffing Strategy program. The manufacture and distribution of Opal in Central and Northern Australia has been a story of spectacular success. It has improved Indigenous health by curbing the detrimental curse of petrol sniffing across many of the communities, so in 2009 we expanded the supply and uptake of Opal fuel across the gulf region of Queensland, the East Kimberley and the Top End. Since then, the success has been echoed across many regions.

I do not have time to go through some of the evidence that was presented to the third and most recent inquiry conducted by the Senate Community Affairs Legislation Committee. I had been involved in the first two; I missed this one because I had other engagements in the Territory at the time. The inquiry on low-aromatic fuel took evidence from people like Donna Ah Chee at the Central Australian Aboriginal Congress, who said that the rollout of Opal fuel in Central Australia 'demonstrates what supply-side strategies can achieve'. There was also evidence from Susie Low at Mount Theo, from the NPY Women's Council, and from Andrew Stojanovski, whom Senator Siewert talked about. So there is clearly evidence about this strategy and how it works.

As of July this year, there are 123 sites receiving low-aromatic fuel throughout regional and remote Australia. And since July this year the Department of Health and Ageing have conducted a procurement process to establish increased production and storage of low-aromatic fuel in various places in remote Australia. So a lot of work has been done and is being done. The committee heard that the low-aromatic fuel storage and distribution facility in Darwin is expected to be completed before the end of 2013. That will ensure that there is ready access to supply to roll it out across the Top End, not just in Central Australia.

I am keen to try and wind up my remarks this morning, because I know we want to get through all of the speeches in the second reading debate, move the amendments and get this bill passed. But I clearly say in support of this legislation that I think it is time that we move on ensuring that distributors in the Northern Territory turn to Opal, and only to Opal. I think there is much discussion and there is much work still to be done. While the voluntary scheme is in place, we know that there is still a lot of work to be done to ensure that distributors switch to Opal and do it confidently and competently. We know that plenty of education work will need to be done to ensure that people have confidence in knowing what the difference between regular unleaded and Opal is. Of course, there is no difference except for the smell, but that education will need to occur. There will be a need to fund and extend those youth programs right around the Territory. My dream would be, as I said, that the Central Australian Youth Link Up Service becomes the Northern Territory youth link-up service.

So this is not the final chapter in the book; this is another chapter in addressing petrol sniffing. There is still a lot more work to be done. There are a lot more education programs to be rolled out, youth programs to be rolled out and work to be done with distributors. But it is another step along the way to ensuring that young Aboriginal lives are not destroyed because the only end of their day is to stick their nose in a can of petrol and sniff it. So we in this government need to play whatever part we can to prevent that occurring and to save one more person's life from spiralling dramatically downward to a tragic ending where they either become mentally ill or die, and this parliament needs to grasp any opportunity it has to prevent that from happening.

Senator SCULLION (Northern Territory—Deputy Leader of The Nationals) (10:01): I rise to again contribute to the debate on the Low Aromatic Fuel Bill 2012, a private member's bill introduced by Senator Siewert. I will probably be somewhat critical of the government and of the Greens today, for a number of reasons that will become evident during my contribution, but I would like to start by saying that I would commend all sides of this place for their motivation. There is no question that the government is well motivated—I do not really understand the backflip of this morning—and I know that Senator Siewert is very well motivated in regard to the introduction of this legislation. I know that Senator Crossin, Senator Moore, Senator Siewert, I and others have been part of committees in the past that looked at this issue, before the committee that looked into this legislation, and we have all been very frustrated. We have had committee discussions. We made a recommendation after a committee inquiry in 2009 that someone act to introduce some legislation. I suspect that Senator Siewert's introduction of this legislation was a function of all of that frustration, but I think I should put on the record that I admire the motivation of all in this matter.

Of course, we are motivated by a very, very damaging substance. I can remember, as a very young bloke, hearing only a couple of times about people sniffing petrol, but it is really not a part of life for those who live conventionally in mainstream Australia. But it is just so damaging. I have been very fortunate, like Senator Crossin, to have spent some of my past living in remote parts of the Northern Territory and have viewed the damage that is caused by this otherwise innocuous substance that helps a car go. It is very damaging to communities and families, because the nature of the substance is that there are quite a spectrum of reactions when people are under the influence of petrol; it affects different people in different ways. Unlike with things like alcohol and other substances of abuse, where there is a general body weight indicator, for some reason—it is unknown, and not a lot of work has been done on it—some people hit this sort of psychotic state and you cannot speak to them or communicate with them. These are otherwise quite ordinary people. Yes, they have had some challenges and they are self-medicating; but, notwithstanding that, quite ordinary people behave in the most unexplainable ways, and it is just so destructive.

It covers a spectrum. At one end, they simply need petrol to sniff, so they will humbug, they will break things, they will hurt people or they will hurt themselves until you give them some more petrol or access to more petrol. That is extremely damaging to a community and to a family. The tragedy at the other end of the spectrum—I almost hesitate to remind the chamber—is shown by the circumstances where an 18-year-old petrol sniffer followed a group of young boys and girls, between the ages of six and nine, down to a billabong. He was in such a psychotic state that he waded into the billabong, grabbed an eight-year-old girl, and sodomised her and drowned her simultaneously. Imagine the psychotic state where that would happen. You can imagine the community's sense of grief and lack of understanding of how this could possibly happen in the community.

These are the sorts of events that we have, I think, managed to ameliorate substantially. It did not come because of some miracle in this place or legislation; it came through the miracle of technology—the miracle of Opal. I would have to commend the previous government and commend Tony Abbott for his leadership in saying to BP, 'We wish to develop a fuel that doesn't have the nasty bits that make you high—a non-aromatic or low-aromatic fuel.' That was done by BP, and I have to say that in my time in this area I have never seen such a change literally overnight. There were people whom I did not recognise. I knew they were sniffers; I would have vague conversations with them, but they were never going to make much sense. They changed into people whom I met for the first time—really wonderful people who had come out of the smog. I think it had a fantastic influence. It was expanded by the Howard government. I would also like to commend the current government, who have taken up that strategy and pursued that with the same vigour. I would also commend Warren Snowdon. He has certainly been very passionate about the continued rollout, and I know he shares the frustration of this place and the commitment to ensuring that we get it right.

The Central Australian Youth Link Up Service has been mentioned often in here, as it should be. If I could build on the other compliments that Tristan Ray and Blair McFarland have had, for me as a very practical person—and I know Tristan and Blair would understand—they provide minute feedback about what works and what does not. I know they run a great link-up service.

They are able to tell me forensically what is actually happening out there in the communities. They can say that to a person. They can say, 'There are eight people now, but four of them actually went last time in the football round that went over hundreds of kilometres. We now know as a consequence that there are another seven more. Four live here and three live here.' Such is the nature of their intelligence network on the ground that it gives us the capacity to be able to deal quite forensically with this issue which is so very important.

Despite the fantastic work of the previous government, this government, the innovation of BP and the rollout of Opal at a cost of between $23 million and $28 million over forward estimates over years, we are now, tragically, seeing substantial leaks in the system. We have reports now from CAYLUS on the spectrum of people engaging in petrol sniffing and the horror that comes with it. In an incident in the last couple of weeks, an 18-year-old petrol sniffer stabbed an eight-year-old boy in the head. It was not good. It was not just a poke. I do not want to go into the details, but this never would have happened otherwise. We have seen these communities rise up with people free of that stuff and it has now just started to come back. I share the frustration. We have to get this right.

One of the reasons that it has started to come back is the recalcitrance of a number of petrol stations. The government and the opposition have done all sorts of things. We have all worked together to support initiatives. One of the initiatives of the current government is to ensure that we provide a petrol station that only sells Opal across the road from one that does not. I wrote to the then Northern Territory Chief Minister and said, 'Don't let any Territory cars fuel up at this service station.' The Commonwealth agreed. We have gone to every possible length within the law to lever people who are not playing the game into doing so, but because there are leaks in the process that is always going to be the case. That is why it is absolutely essential that we get this right.

We have had a careful look at this legislation. I approached Senator Siewert and said we would support her in a bill that did pretty much what this bill is doing. Sadly, for whatever reason, Senator Siewert decided pretty shortly afterwards that the Greens would move it on their own. I had a private meeting with Minister Snowdon. He was frustrated. He believed that the way forward was, in fact, for the states and territories to legislate because it was more effective legislation and we need it to be part of a national framework. I was convinced that was probably the way to go. He had some frustrations. The flavour of government changes. We have the coalition in power in the Northern Territory, Western Australia and Queensland, while South Australia is Labor—but that might have been a bit of challenge. Certainly, in terms of this particular legislation, I think there has to be a better way.

This legislation came through a very comprehensive committee process, and once again I would like to commend the wonderful Senator Moore for traipsing around the countryside and taking evidence in all sorts of places from all sorts of people and for a wonderful report. A significant part of that report was recommendation 6, which, in light of the preceding five other recommendations, recommended that the current bill not proceed.

I know we will hear from the other side about it being all workable or whatever it is going to be. We will be listening carefully to that, but we certainly will not be supporting this legislation for a couple of pretty significant reasons. We do not think it is going to work. It will not work because it effectively relies on corporation powers. I can tell you right now, without naming any players—and I know Senator Siewert indicated this in her report—that, whilst there was no evidence given that they were not all covered by the Corporations Act, there is in fact a place that is a partnership and not a corporation power that would not be caught under this. I also got some legal advice about how convoluted but easy it would be for an organisation to change status to escape those sorts of processes. Whether you become a sole trader or a partnership, you are simply not going to be caught under this legislation. So there will still be leakage.

There has to be a better way, and I think the better way is through framework legislation. There is legislation in the Northern Territory. It was put in by the previous Labor government, and I commend the government. A lot of work went into it. It not only deals with petrol but with all volatile substances. That is the Volatile Substance Abuse Prevention Act 2005. When the new Northern Territory government came into power, I had better access so I said, 'We have had this piece of legislation, but in the context of petrol it has not been used.' I will not go into the intricacies of it—there is no mischief. There are further amendments required. I have spoken to the new minister. They have sought advice on a new amendment and I understand that new amendment is going to be introduced to enable these things. This is an act that does not rely on the corporations powers. This is an act that enables us to forensically take a lease on a petrol station. I am not sure you can draw a moving line around one person, but this is the closest piece of legislation to doing that. It is ultimately as flexible as you can get it. We can actually effectively prohibit the sale of a particular product in a particular area for a particular amount of time. Nobody wants legislation smashed for a long time. I very much commend this legislation to this place.

There is another matter, and it is not my word you have to take on this. Sadly, as I have indicated, there have been a number of deaths associated with volatile substances. The coroner at a West Australian coronial inquest said:

The Volatile Substance Abuse Prevention Act of 2005 (NT) has been an effective tool in the NT for ensuring that chronic solvent users who are at risk of severe harm undergo suitable treatment at appropriate facilities.

The coroner went on to recommend that.

In similar circumstances, a South Australian inquest recommendation was that the South Australian minister for health consider introducing legislation before the South Australian parliament similar to that encompassed with the Northern Territory Volatile Substance Abuse Prevention Act 2005.

For those who are concerned about moving forward on this, I can provide some hope to this place. I know we are in opposition but, because this is such a bipartisan issue, I spoke yesterday to the Labor minister in South Australia, and they are engaged in assisting me and others in having a look at this framework in the Northern Territory. If they have any amendments to it, we will seek to provide that information to the Northern Territory government, and they could include those in their amendments. I have spoken to the office in Queensland and they are also engaged in ensuring that they can provide some feedback on the framework. Sadly, I missed a call from WA's Peter Collier last night, but I spoke to his adviser on this matter and hopefully we will be speaking today. Substantially this is not just a matter for the Northern Territory. I think it is a good framework that will work. The reason I was talking to them today was not because I needed to tell you all that today. I actually thought I would be coming in today and saying: 'Sorry, Rachel, but, as I have already indicated to you, we are not supporting this. We think there are some flaws in it. But we are not giving up. We're off and working. We're off doing some practical things, talking to people and getting some things done.' But, sadly, we have come in here this morning and heard this. I heard about it at 20 past eight when Minister Snowdon rang me. I am not saying he was tardy about that, as I understand that must have been pretty much when either he heard or he changed his mind. It was hard to know from our conversation.

But, given the fact that the minister had told the Northern Territory government that they were not supporting the proposed act and asked me not to support the proposed act, I was very surprised to hear this morning from Minister Snowdon that the government was in fact supporting this proposed act and was not opposing it and moving in another direction. This backflip goes against the report recommendations, after the excellent work done by Senator Moore, Senator Crossin, Senator McKenzie and Senator Smith—who are in the chamber—and Senator Siewert. To me it really beggars belief that, on this very important issue on which we have had such a bipartisan approach, we have suddenly had a backflip. I am a bit cranky about it. I do not know the detail and I do not know what happened.

Senator Siewert may be able to throw some light on it when she makes her contribution in the committee stage. I know that our First Australians will be dying to hear what the issue was that they were traded off against. There is no other reason apart from such a deal that I would have got a phone call this morning—at 'two minutes to midnight'—telling me: 'Oh, by the way, we've just changed our mind completely on this. Come and get a briefing from someone,' someone who did not even know the Corporations Act seemed to appear in it. It was all pretty pathetic. So it is obvious to me that you have done a deal, and I think the Greens need to come clean. They have to put their hands up and say, 'This was part of the deal.'

We know—and I say this without mischief—that this is a second-class solution. We have a first-class solution, in the volatile substances act, and we should not offer a second-class solution to our First Australians because we have done some grubby deal about something. I do not know about it. Perhaps the Greens would let us know. Perhaps it is not grubby—some deal on Malaysia or tax—but who would know? But these circumstances cannot be interpreted in any way other than: 'We're going to do a backflip.' I have to say to those on the other side that you do have a bit of form on this. Perhaps that is the way of things. I have forgotten how long ago it was that I was in government, and I am not really sure, but perhaps that is the way. Scrapping immigration policy because it would be popular—but not necessarily in our national interest—might have been one of the things. Just the other day, we had the supertrawler issue. There was a bit of a Twitter go, so it was 'We'll just change our mind on that.' Poor old Joe over here, who just the day before had been saying, 'Absolutely not; we've got to protect good science,' had to roll up here and then say—

The ACTING DEPUTY PRESIDENT ( Senator Cameron ): Senator Scullion, you know that you should address—

Senator SCULLION: Sorry, Senator Ludwig—it was a term of affection. Of course, we have been stuck since then. We saw it again with the carbon tax. I am sure that the Prime Minister said, 'There will be no carbon tax under the government I lead,' because that was popular and that was what people wanted to hear. But, with what they delivered, again, it is the Greens corner that seems to have this commonality. Every time the government stroll into the Greens corner, they suit their own purposes of staying in power but they lose sight of looking after Australians.

In this case, this place has been pretty good. I am very proud of how we have all dealt with this matter in a bipartisan way, given the challenges that face our First Australians. I am very proud of the way we have gone about doing that. But, as has been shown historically, inevitably behaviour will out. Today we are faced with something upon which we could have had a first-class solution that everybody agreed to. In fact, the committee made this recommendation:

The committee recommends that the Australian Government continue to consult with the relevant state and territory governments on the possibility of national legislation …

That recommendation is before us now. But this legislation is only enabling legislation. You may believe that this legislation will make some changes tomorrow. It will not. But the thing that saddens me most, and it is a great sadness—and we have all been dragged into this reluctantly, I suspect, including the minister—is that for the first time we are definitely using the interests of our First Australians as currency in some grubby trade-off. I think the Greens should come clean and tell us exactly what that trade-off is.

Senator Milne: Mr Acting Deputy President, I rise on a point of order. I object to the use of the term 'grubby trade-off with our First Australians'. I think that is really an offensive way to discuss what is going on in the Senate.

The ACTING DEPUTY PRESIDENT: Senator Scullion, I think you are reflecting on the Greens and the senators in the Greens party. I think you should withdraw.

Senator SCULLION: I want to speak to the point of order, if I may.

The ACTING DEPUTY PRESIDENT: Sure.

Senator SCULLION: I was actually reflecting on the outcome. As I said, I think it is a grubby deal, the deal that was done. I was not saying that the Greens did a grubby deal.

The ACTING DEPUTY PRESIDENT: Senator Scullion, I do not accept that. You should withdraw.

Senator SCULLION: I withdraw. I believe the Greens should come forward and tell us what the deal was. Was it that uncharitable word I used? They need to come forward on this. We will not be supporting this legislation for two reasons: firstly, it will not work and, secondly, it is a part of a particularly unsavoury deal.

Senator MOORE (Queensland) (10:22): The one thing that keeps this chamber together is the consideration of the welfare of our community, and I object to what Senator Scullion said. Senator Scullion and this side of the chamber have worked very closely together in a shared commitment to ensure that our First Australians receive strong services in our community. We share that. In terms of the process around the Low Aromatic Fuel Bill 2012, this is not the first time that the Senate's community affairs committees have considered the issues around petrol sniffing. In fact, we have had three inquiries on the issue. Everybody acknowledged that there needed to be action. Everybody acknowledged that the use of Opal fuel was one of the key strategies that was going to make a genuine difference.

In 2006, the first inquiry looked at hope in our communities, and the stunning title of the report was, Beyond petrol sniffing: renewing hope for Indigenous communities. One of the recommendations from that committee inquiry was a call for people to work together to ensure that Opal fuel was available across the areas of need. We called on state and territory governments to work with the Commonwealth to ensure that Opal fuel was available and used so that those communities were protected.

In the limited time I have I am not going to talk about all the other recommendations that we have had from our inquiries year in, year out. I acknowledge the reverence with which Senator Scullion refers to our committee and refers to the recommendations that we make. But, as we in this chamber all know, we make lots of recommendations and they are not all acted upon. In terms of the work that we do in our committee, I think that we would have had strong policy if governments of all flavours had taken up every single recommendation of every single community affairs committee inquiry of which I have been a member but, to my sorrow, that has not happened. What happens is that committees work together. They look at issues and bring forward recommendations for governments of all flavours, and decisions are made and work continues around them.

In terms of petrol sniffing, in 2006 we said that there needed to be coordinated work into the future to look at the way that Opal fuel could be developed, distributed and used effectively in the communities. Then we move forward to 2009, when the committee again looked at the issue of petrol sniffing across Australia. There were very encouraging issues that came forward in 2009. I know other senators talked at length about the wide range of issues that work together, including the importance of community empowerment and diversionary programs, but the petrol-sniffing strategy in which Opal fuel is key continued to be a major plank of work across the parliament to ensure that petrol sniffing was addressed.

In 2009, our committee was so frustrated by the continued lack of clarity around what was happening with Opal fuel. In fact it was that committee that, in 2009, recommended that there should be a process across governments to look at mandating the use of Opal fuel. It is there in our recommendations—I believe it was recommendation 5. In 2009, to my disappointment, we did not get that recommendation taken up immediately. But the issue continued to be discussed, and all of us who are interested in this area continued to work with communities and community organisations. One of the things that was on the agenda the whole time was frustration that there continued to be so much misinformation perpetrated by a range of individuals. We have never been able to actually find someone to talk to who raises these issues about the damage that Opal fuel can do to cars and the fact that it would be difficult to have financial advantage if you used Opal fuel in communities. These things continued to happen. We noted that in 2009 and we said that there needed to be changes into the future.

Senator Siewert, in putting forward her bill, referred to the recommendations of the 2009 committee inquiry. She said that there had been a lack of action. She said that we know things have continued to happen but we need something to cut through to address the frustration that we all share about the fact that we have a tool that we know works. There is no debate about the fact that the use of Opal fuel reduces petrol sniffing in communities. No-one even argues that point. It is clear and it is documented; the evidence is there. The issue with which we continued to struggle is the fact that, seemingly, we could convince some people in the business community that the use of Opal fuel was something that should be part of their business model and that working in Aboriginal communities where there could be danger had with it in many ways a community responsibility to provide the services that would best suit their communities. That was something with which we were struggling.

As people have pointed out in this debate, there continues to be ongoing work with the federal and state governments to move towards getting responses to this process. That was the discussion we had throughout the recent inquiry which finalised in September this year. When we put forward our recommendations, we said that the work needed to continue. We accepted that a process needed to happen. We said that the bill put forward did not meet some of the legislative processes and that it needed to be amended. As you can see, there have been a number of amendments drafted to address the issues that we raised in the committee recommendations. If you look at the minority report from Senator Siewert, you can see that she picked that up. She acknowledged that there needed to be changes to the draft legislation that was put before us.

Now that work has been done and, again through due process, we have come back to this place to say that this is one step that can be taken. It will not solve all the problems. No-one pretends that one step will solve all the problems. But we have a process that we are putting before the parliament that says that, if you follow this act, a framework could be implemented, a trigger could be implemented that the minister could use to say, 'In this circumstance, we're going to step in.'

It is not to stop the other issues. It is not to stop the valuable work that continues to happen amongst governments to work towards agreements to ensure that they can maintain the positive steps that they have taken up till now. I think one of the reasons for putting this legislation forward is to give that a bit of impetus and to say, as we have to in many cases when governments need to work together: 'Get a move on. This needs to be done.' There needs to be an urgency about the process because, while we are waiting and discussing and reviewing, people continue to have the horror of petrol sniffing in their communities. That was the evidence we had before our committee, and no-one denies that.

Communities sat before us, telling us about the horrors of petrol sniffing—the fact that, with all the efforts that have happened up to now, there are still outbreaks of sniffing—and that people continue to have that awful virus that seems to spread so quickly and everyone has been struggling to find out what stimulates it and how it continues. As long as there is petrol available in the community, petrol that allows the sniffing to happen, sniffing will happen.

The legislation that is before us is not perfect. In fact, I cannot remember a single piece of legislation placed before this place that has ever been perfect, so we continue to look at how things evolve and how we can make things better. What we are asking the government and the parliament to do is to take this step as one step along the road: to maintain the discussion, to maintain the debate, to maintain the commitment. When that happens, we can genuinely say that we have made a difference. We are not imposing this; we are engaging in it. We are responding to the need that has been put before our committee, before each of us individually. Everyone who is part of this debate has been working with communities and is dealing with people on a weekly and monthly basis.

I reject that this is something that is being rushed through. I think we have waited, I think we have encouraged continuing action and I think that this is one step that parliament can take to address the issues that we all know about. If we do not take this step, I am wondering how much longer we do have to wait.

Senator SMITH (Western Australia) (10:31): I am also pleased to have this opportunity to speak on the Low Aromatic Fuel Bill 2012. As a member of the Senate Community Affairs Legislation Committee, at the outset of my contribution I would like to say how grateful I am for all those who have taken the time to make a contribution to the committee's inquiry on this important subject and add my commendation to those of other senators on the work of CAYLUS, the Central Australian Youth Link Up Service, which gave a very fulsome presentation to the committee over numerous days and was quite instrumental in making sure that the committee had an opportunity to hear from those most affected by the damaging consequences of petrol sniffing.

On a more personal note, the issue brought to the fore for me the central role that women will play in resolving many of the social issues we confront in Indigenous communities, but also the very important and urgent need to make sure that young Indigenous males across Central Australia and my home state of Western Australia have the necessary support and encouragement to avoid the temptation of petrol sniffing.

Petrol sniffing is a problem that has bedevilled areas of Northern Australia since the 1950s. Since the 1980s there have been a number of inquiries and solutions proposed to address petrol sniffing and its harmful, indeed tragic, social consequences. The most significant step at a Commonwealth level came, I am pleased to say, in 2005 when the Leader of the Opposition, Mr Tony Abbott, was the Minister for Health and Ageing. Mr Abbott's passionate, genuine and ongoing commitment to the welfare of Indigenous communities is well known to most Australians. In March 2005, as health minister, he worked with industry to commence the rollout of a form of low-aromatic fuel, more commonly known as Opal, across parts of Central Australia that had been identified as areas with particularly high instances of petrol sniffing.

Opal was developed by BP Australia and is a form of unleaded fuel that contains low levels of aromatic hydrocarbons. That means that a petrol sniffer will not be able to obtain the high from this form of fuel that they would from regular unleaded petrol. Opal fuel is produced by BP's facility in Kwinana, in my home state of Western Australia, but other petrol-retailing companies have agreed to distribute it through their own retail outlets.

The Howard government committed $42.7 million over five years to make Opal available to more and more communities throughout Central Australia. The Howard government invested a total of $55.2 million over four years on its whole-of-government Petrol Sniffing Strategy. And I join with Senator Scullion in commending also the efforts of the Rudd and Gillard Labor governments for the continued rollout during their tenures. As at 1 July this year, there were 123 sites across regional and remote Australia that were receiving low-aromatic fuel, and 67 of those sites were within zones identified as high risk for petrol sniffing activity. Focusing on my own state of Western Australia, the East Kimberley region has been identified as an area with a significant petrol-sniffing problem. In Western Australia there are 26 sites currently receiving low-aromatic fuel, with a further 18 sites targeted for rollout in the near future.

I am disappointed and saddened to say that only yesterday we heard of a firsthand account of the dangers and perils of petrol sniffing, when a 13-year-old boy unfortunately had almost 40 per cent of his body burnt after setting himself alight while sniffing petrol. The boy is believed to have inflicted the injuries on himself when his family found him sniffing in a shopping centre car park in South Hedland—and South Hedland is a place where I spent much of my youth, as my father was a police officer there in his early years. The boy was subsequently flown to the Princess Margaret Hospital. This incident points to the fact that this is a recurring issue.

But, while it is a recurring issue, I want to remind all of us that we must acknowledge the success of the low-aromatic fuel initiative. Universally it is accepted as having made a valuable and significant contribution to reducing the incidence of petrol sniffing. In the committee's report, I am pleased to say, we take some time to draw attention to the fact that the introduction of Opal has been significantly successful. In our report we mention:

The story of the manufacture and distribution of low aromatic fuel in central Australia, to substitute for sniffable fuel, is a story of spectacular policy success. It is a rare and precious achievement in the challenging field of Indigenous health policy. The initiative has involved a partnership between the private sector, including both large and small businesses, governments at all levels, non-government organisations, and Indigenous communities.

This statement in this latest report is consistent with previous findings. People will be familiar with the fact that the committee concluded in its 2009 report that 'the supply of Opal fuel has been a resounding success in helping to reduce petrol sniffing'.

I think it is fair to say, and I echo the comments of other senators, that the majority of submissions have noted the success that has been achieved to date with the voluntary rollout of low-aromatic fuel. I would like to draw specific attention to the contribution of Mr David and Mrs Margaret Hewitt, who have been activists in Indigenous communities and have committed themselves for a very long period of time to supporting the work of Indigenous communities.

Mr and Mrs Hewitt in their submission to the committee noted:

… the introduction of the Opal low aromatic fuel has had the biggest single positive impact on the health and welfare of Indigenous people in the 48 years of our work in remote regions.

What we are being asked to deliberate on today is not the suitability or the appropriateness of low-aromatic fuel as a means of containing petrol sniffing but instead what is the most appropriate legislative mechanism to deal with recalcitrant fuel suppliers across Central Australia—and, I might add, other parts of our country—that for reasons perhaps best known to themselves are not yet able to commit themselves to the introduction of Opal fuel. It is the legislative mechanism that requires our careful deliberation.

The committee's report as a result of its most recent inquiry found that the Commonwealth's efforts to communicate to outlets the benefits of selling low-aromatic fuel during the last 3½ years have not yet yielded great success. It was interesting to note that some of those who presented to the committee said they had never been asked about the possibility of supplying Opal fuel through their outlets. That suggests to me that the problem may not be outlets refusing to stock Opal, as some of the commentary around this issue has suggested, but at least in some instances it is a case of operators not having access to the information about the benefits or some of the assistance available to them in terms of moving from regular unleaded petrol across to Opal fuel.

My concern and the concern of other coalition senators in relation to the current bill is that, whilst it has honourable intentions, it has overlooked some important issues and may produce unintended consequences. Firstly, the Commonwealth government is already working with state and territory governments to address some of the issues outlined in the committee's report. There is goodwill from all parties and a determination to work through the issues cooperatively and comprehensively. To simply impose Commonwealth legislation now would merely bring that process to a halt.

I share Senator Scullion's suspicions about what might have motivated a change in the last 24 hours in regard to the government's consideration of and attitude to this private member's bill. I think it is worth reflecting that the minister, Mr Snowdon, has said previously how wrong this proposed approach would be. On ABC back in February of this year Mr Snowdon said the Commonwealth legislation as proposed in this bill:

… creates, I think, a potential legal minefield.

Again, he said:

If the Northern Territory government had in its mind that it ought to regulate it could, as could a Western Australian government, as could the Queensland government.

In July of this year he also said the same to his state ministerial colleagues, as reported by the Australian:

He told the ministers it was difficult to see how a commonwealth ban on unleaded fuel—which he has previously described as a "legal minefield"—would have a greater impact on addressing petrol sniffing and state and territory legislation.

So what we are dealing with at the moment is a situation where, by the government's own admission, the proposition before us is not a worthy one—or at least is a second-class one.

The Greens say that the constitutionality of their bill is underpinned by the corporations power. The problem with that approach is that some of the bodies involved in the rollout of Opal fuel maybe unincorporated traders. As a result, the bill may be creating a loophole through which traders within petrol-sniffing zones can go on selling regular unleaded petrol—the opposite outcome to the one the bill seeks to remedy. Furthermore, what is contained in this bill will not do anything to actually address supply issues. BP's capacity to produce Opal fuel will not simply be increased as a result of passing legislation. Storage facilities for the distribution of the Opal fuel will not magically appear merely because this parliament passes a piece of legislation. Even the Greens who have authored this bill appear to have acknowledged this point. It is right there in the Greens minority report, which says:

This bill introduced by the Australian Greens does not in itself cause anything to take place.

I do not doubt for a moment the sincerity of the Greens' intentions in terms of what they have brought to the Senate, but I do question the merits of passing legislation in this place when even its proponents admit it will not cause anything to take place. Australia needs to make sure that its legislative approach is focused on getting outcomes. I am not convinced that this bill passes that simple test.

But there is a better way. There is already a process of discussion and negotiation under way between the Commonwealth and the relevant state and territory jurisdictions to deal with many of the issues that were raised during the committee's inquiry into this bill. For instance, I know that my coalition colleague Senator Scullion has met with the recently elected Chief Minister of the Northern Territory to discuss this very issue. During the committee's inquiry I actually raised the idea of replicating some of what the Northern Territory has done and fostering a coordinated approach across other state jurisdictions. That would seem to me to be a solution far preferable to additional Commonwealth legislation in this circumstance.

The indication in the Northern Territory is that the new Country Liberal Party government will be open to further amending the Northern Territory's volatile substances act to deal with this issue. There is no reason why that approach could not then be replicated in other relevant state jurisdictions. I am confident that the coalition government in Western Australia will be speedy in its response to this important issue. I acknowledge that sometimes the Commonwealth may be forced to legislate when states actively refuse to address a critical issue. That is not the case in this issue. No-one is denying that action must be taken. I think there is merit in allowing a solution based on state and territory legislation to proceed. It will allow for a more flexible and better targeted approach. All of us in this place want to see the supply of Opal fuel expanded and the problem of petrol sniffing eliminated. However, I do not feel that this bill will achieve that in the most effective way and in fact risks the creation of other difficulties. That is why I am opposed to it.

In this debate I think it is important to acknowledge that the commitment to improving the lives of Indigenous Australians is genuinely a matter that transcends party politics. We hear a lot of talk in this place about bipartisanship. Sometimes that is opportunistic but, fortunately, this is not one of those times. During my six months as a senator for Western Australia I have been struck by the genuine commitment of all my Senate colleagues to improving Indigenous lives, especially those in remote communities.

The hearings that the Community Affairs Legislation Committee held in regard to this specific bill were a powerful demonstration of that commitment, and I am grateful to senators from all parties on that committee for their efforts. Here was an example of the Senate and its committee process working at their best. Yes, there is now a discussion about the best way forward on this critical Indigenous social issue; however, I want to make it clear for the record that what is at issue merely amounts to a question over the best route, not the ultimate destination.

The coalition agrees with the need to stop petrol sniffing but believes this bill will be ineffective on the issue and that the issue is best handled at a state and territory level. In the Northern Territory many will be aware that the Territory's Volatile Substance Abuse Prevention Act—which could be enabled in other jurisdictions, with minor amendments—does enable supply of sniffable fuel to be banned in certain areas. This act could form framework legislation in other states, allowing effective anti-sniffing measures that better reflect local circumstances and differences amongst different Indigenous communities.

The Community Affairs Legislation Committee recommended the bill not proceed. It recommended that the act should not rely on the corporations power. It recommended that ongoing coordination with state and territory governments to prevent supply issues with Opal should be pursued. It also suggested that a review of Opal production and distribution subsidies should be more closely undertaken. The bill before us relies on the corporations powers under section 51 of the Constitution. It will have no effect on unincorporated traders. This means that any sole trader, partnership or other trading entity would not be covered. We know from the current situation that one point of leakage is enough to allow sniffing outbreaks in large surrounding areas. I think we are all agreed on that significant point. Therefore, a bill that does not cover every trader in the area would be all but ineffective.

Our alternative is a simple one but a highly effective one. The Northern Territory's Volatile Substance Abuse Prevention Act can, subject to minor amendment, be used to tackle the problem. Under this act a group of 10 or more residents of a locality or a community council could seek to prevent supply of a particular substance, including petrol, in that location. In the Northern Territory the department of health would then lead a process that would take account of interested parties' contributions to develop a management plan that would be able to specify restrictions on supply and use of regular unleaded petrol and other sniffable substances at that location.

This approach is worthy not least because it is one that has been advocated by coroners in other jurisdictions. This approach was endorsed in a Western Australian coronial inquest into a tragic circumstance. That inquest said:

… the Volatile Substance Abuse Prevention Act 2005 (NT) has been an effective tool in the Northern Territory for ensuring that chronic solvent users who are at risk of severe harm undergo suitable treatment at appropriate facilities.

In similar circumstances in South Australia an inquest recommendation stated:

That the Minister for Health consider introducing legislation before the South Australian Parliament similar to that encompassed within the Northern Territory Volatile Substance Abuse Prevention Act 2005 …

Senator Scullion has been actively working with the Northern Territory government to bring about this solution. I am sure that other senators, including me, from Western Australia, can use their energies and motivations to ensure that other jurisdictions follow suit in a speedy and effective manner.

It is very clear that what we have seen in the last 24 hours is a step back from what would have been a highly effective first-class solution to a less than perfect solution that unfortunately could compromise the future welfare of young Indigenous Australians. In conclusion I again would like to congratulate the committee on their deliberations. I also congratulate CAYLUS for its work in fostering the development of young people across our Indigenous communities.

Senator MILNE (Tasmania—Leader of the Australian Greens) (10:49): I rise today to wholeheartedly support the Low Aromatic Fuel Bill 2012, which is currently before the Senate. This is an excellent bill that Senator Rachel Siewert needs to be congratulated for. She has shown tremendous leadership on this issue, and her commitment has been long running, from her first speech, which I had the pleasure of listening to, back in 2005. She spoke then about the scourge of petrol sniffing and the need to deal with it. I congratulate her on that and on her participation in the initial petrol-sniffing inquiry, in 2006. She has continued to lead on this issue, always consulting with Australia's Indigenous people and always listening to their responses. It was Senator Siewert who initiated the 2009 Senate inquiry to follow up on the 2006 report. It was those inquiries that prompted the government's first comprehensive petrol-sniffing strategy, which did include a voluntary rollout of the low-aromatic fuel. She has now consistently followed that rollout, visiting communities, talking to stakeholders through the estimates process, and she has continued to push for a better outcome for the communities that could benefit from the broader rollout of Opal fuel and a ban on sniffable fuel. I really congratulate my colleague. As I have just said, it has been seven years in the Senate to the point where we now have a bill before us that I think ought to be supported by the Senate. I think it demonstrates what can happen when you have no one party having all the power and there is a capacity to negotiate outcomes, in which case you get outcomes for the community.

I heard Senator Scullion speaking in a most derogatory manner earlier suggesting that there had been some trade-off of the interests of Australia's Indigenous people. Nothing could be further from the truth. The Greens have had at the forefront of all our work in the Senate, always, the interests of Australia's Indigenous people. I just want to go through that for a moment.

It was my former colleague Senator Bob Brown who worked very hard to have Indigenous recognition as part of the opening of the parliament every day. That is a real improvement and recognition. It was in our agreement with the Prime Minister that we try to secure recognition in Australia's Constitution for Australia's Indigenous people. Furthermore, all our work trying to protect James Price Point, trying to secure substantial new cultural heritage listings, has always been to protect not only the environment but also the cultural aspects. The Burrup Peninsula is another place where we have worked very hard to protect the cultural heritage of Australia's Indigenous people when it has been set upon and undermined by the gas industry in Western Australia—something that is supported by the coalition at every turn, I might say, which destroys that heritage that is so precious to us.

Another example is that during the negotiation of the Carbon Farming Initiative I was very keen to make sure that one of the earliest methodologies we recognised in carbon farming permits was savanna burning, because Australia's Indigenous people in the Northern Territory have very important knowledge and skills. Getting that change to savanna burning not only is good for the planet in terms of reducing greenhouse gas emissions but also is actually providing money and employment to people living in Indigenous communities.

So the Greens at all times try to work for better outcomes for Indigenous people. I remind the Senate that it was the Greens who stood strongly opposing the Northern Territory intervention. We believed it was bad for Indigenous people, and we still do. We also stood up and opposed the so-called Stronger Futures legislation, which the government introduced, because we think it provides weaker futures for Indigenous people. I very proudly stood in the courtyard here with a number of Aboriginal and Torres Strait Islander leaders saying that this Stronger Future legislation would be a disaster for them. So I will not have on the record anywhere a suggestion that the Greens are not acting in the bests interests of Australia's Indigenous people when we are informed by those people of what they want.

And that is the key point on which Senator Scullion is wrong. It is the communities themselves who are asking for this legislation, and it is ridiculous to suggest that a better process would be to go and talk to each of the states and territories and try to negotiate with them to legislate, because that is a recipe for never getting an outcome. Anyone who has been into a community and seen the appalling outcomes of long-term petrol sniffing knows not only that it can kill but that it damages internal organs, the brain and the nervous system. People who sniff petrol can become disabled and ultimately die. It does not just damage the health of the individual; it leads to family breakdown, domestic violence, community breakdown, vandalism and all sorts of shocking outcomes in communities. I think everyone recognises that if we can get rid of petrol sniffing we can at least enable people in Aboriginal communities to take up other opportunities for a positive engagement with life—with education, culture and music and so many wonderful things that can be achieved.

So I am wholeheartedly supporting this legislation. The scourge of petrol sniffing is still with us, because of recalcitrant petrol stations that refuse to stock non-sniffable fuel. This bill gives the minister the power to declare areas where it will be an offence not to supply non-sniffable fuel. It enables the minister to target suppliers in relation to specific communities that are being devastated by sniffing, and I am wholeheartedly in favour of giving the minister that power. To Senator Smith, who just suggested that this will not provide an outcome, I say: what other outcome do you want than to give the minister the power to go in an make it an offence to not sell this low-aromatic fuel?

This is actually providing an outcome. A talkfest with the Territory is never going to get you an outcome, because we see what goes on at COAG year in, year out. COAG is a great big black hole where the states frustrate action on a whole range of issues. What we want here is action to actually deal with the issue—the final piece of the jigsaw to deal with the issue of petrol sniffing and to end it. I cannot understand the mentality of petrol station owners who are prepared to exploit people and deliver horrendous outcomes in Aboriginal communities for their own benefit. But, since the mentality exists and there are recalcitrant petrol station owners, then something has to be done. I think it would be a thing to celebrate in this parliament if all political parties could join together and say: 'Let's do it. Let's just close this last gap in relation to this particular issue and let's give young Aboriginal people and their communities the chance that we want them to have.'

Anyone who has not been in the communities may have seen the film Samson & Delilah. If ever you want to see what is going on in communities, have a look at that film and come away and tell me that it is now not time to actually deal with this issue. It is essential that we deal with the issue. Let's do it. I do not think there is any justification in saying, 'No, this isn't the right mechanism.' Giving the federal minister the power is the right mechanism. I congratulate my colleague and again say that one of the real benefits of a parliament where outcomes have to be negotiated—where one party cannot just deliver something and have it rubber-stamped—is that you get collaborative outcomes. Senator Siewert's work over seven years in this place has finally led to a collaborative outcome whereby we are going to see, I hope, this legislation passed and the Greens able to deliver—with the government, it would seem—an outcome that will close that gap of disadvantage in relation to petrol sniffing in Australia's Indigenous communities.

I think it is a very positive step. So much is said about the way parliament behaves or does not behave. This is an opportunity for the Senate to show that we can demonstrate the leadership that is so essential and that is being asked for. That is the critical thing that is being asked for by Indigenous communities saying, 'Help us to do what we need to do to end petrol sniffing.' The Greens are very pleased to respond to that by saying: 'Yes, we will help you. Yes, we will legislate.' I again congratulate my colleague Senator Siewert for doing just that.

Senator BACK (Western Australia—Deputy Opposition Whip in the Senate) (10:59): I appreciate the opportunity to contribute to this debate and to congratulate those who are involved. Certainly, as I look around the chamber, the contribution over a long period of time by Senator Siewert must be recognised, as must that of Senator Scullion and also Senator Crossin.

Mr Acting Deputy President Bernardi, you would have thought that this would have been a fine opportunity to demonstrate the very best elements of the combined roles of federal, state, territory and local governments and the private sector in trying to resolve this horrific issue. But, as we know in the case of the Low Aromatic Fuel Bill 2012, should it actually be passed, it is only ever facilitation legislation anyhow and will not achieve its goals. I, too, recognise Senator Siewert's passion over time for this particular area. But initially, if I may, I acknowledge the work of the then Minister for Health in the Howard government back in 2005, Minister Tony Abbott, who first introduced the concept of this low-aromatic fuel. The package, along with negotiations with the BP company on this occasion, also included activities to support communities and to engage in youth diversion programs, rehabilitation, policing, communication and education strategies. It remains today, as we know, critically important that we do have that broad approach in trying to solve this issue.

From a straight epidemiological point of view, the fact that there has been a 70 per cent average reduction in the incidence of petrol sniffing and the fact that in areas where there is no provision of regular unleaded petrol that it is even more effective—up to 94 per cent—are wonderful stories and must be supported. But what this shows is the need for the engagement of different sectors at different levels.

Let me give you an instance: at a local Aboriginal community level back in 2004-05, what would the capacity of that community have been to go to the fuel majors and say, 'We need the introduction of a low-aromatic fuel'? Their capacity would have been zero, and the capacity of local government in those areas equally zero. Even a state or a territory would not have had that capacity. So here was an example, quite correctly at federal level, where the then Minister for Health was able to go to the senior management of the fuel industry—the fuel majors; on this occasion, the BP company—and convince them of the need for what would have been an incredible cost to change a regular unleaded product into a low-aromatic fuel.

That is a prime example of where we did need the intervention of the federal government at a level senior enough and persuasive enough to be able to get an international fuel major to change the composition of its fuel. And so there is a prime example of where federal government intervention is needed. But, equally, in this particular instance it is patently obvious that the most effective roles will be those of the states of Western Australia, possibly Queensland and South Australia, and especially the Northern Territory to enact legislation to give effect to a solution that will work.

It was only in July of this year that the minister for Indigenous health, Minister Snowdon, was urging the states and, presumably, the Territory to tackle petrol sniffing by matching the Territory's legislation that relies on community involvement and tougher policing powers to tackle volatile substance abuse. That is the appropriate role for the federal minister; it was in July, it was yesterday and why it is not today seems unusual to me, and I think it deserves explanation.

At that time in July, Mr Snowdon was favouring the approach driven by local communities. He told ministers that it was difficult to see how a Commonwealth ban on unleaded fuel, which he had previously described as a legal minefield, would have a greater impact on addressing petrol sniffing than state and territory legislation. I have heard nothing in the debate this morning to cause me to understand why Minister Snowdon would have a different view today, 22 November, to that which he had at the time these comments were made, and I will come back to some of his other comments.

The Senate Community Affairs Legislation Committee report itself recommended that the bill not proceed—not proceed!—for several reasons. One is not relying on the corporations power, and my colleague Senator Smith eloquently made the point that so many fuel retailers would not fall under corporations law. Maybe sole traders and maybe partnerships would not fall under the jurisdiction of corporations law. We know, as the committee itself said, that there are different definitions of fuels to which legislation applies. The committee said that there is a need—and I agree—for ongoing coordination with state and territory governments to prevent supply issues. And I wish to come back to supply issues; having in fact been a fuel distributor and retailer in one of Australia's states, it is an area of which I do have some understanding. A further recommendation of the committee was that there should be a review of Opal, the low-aromatic fuel, production and distribution subsidies, to which I will also refer.

So we have the committee saying that the legislation at federal level is not appropriate. We have the minister saying that it is appropriately a state and territory issue. Until yesterday, the Labor government were of the view that it was properly a state and territory issue. I do not know why there has been this change of heart, and it needs to be explained to this chamber— again, because this legislation is only facilitating legislation and of itself will not have the desired effect. I emphasise again, as others have in this chamber—and it would be no different for any reasonable-minded, thinking Australian—that we should be able to grasp and complete the study of this exercise and remove regular unleaded petrol from sale.

The position of the coalition is simply this: first of all, the bill itself will not stop sniffing, for the reasons that I mentioned. You have only got to have a sole operator or a partnership and the legislation does not apply to them. In the light of the preceding matters, the Senate Community Affairs Legislation Committee recommended that the current bill not be proceeded with. As a consequence, we would say that this is the wrong instrument, that it is inappropriate to use a Commonwealth arm of the law. In fact, I repeat what Minister Snowdon said in February this year—that the Commonwealth legislation creates 'a potential legal minefield'. Let us avoid the potential legal minefield and let us come up with a solution that will actually work. There is a better, more effective way.

I know that, only in the last few days, Senator Scullion, who has responsibility in this area from the coalition's point of view, has been in contact with the ministers or their senior executives in each of the states of South Australia and Western Australia, and of course with the Chief Minister in the Northern Territory and the Minister for Health and Alcohol Policy, to move all of this forward. So we are all working in concert. There is nobody working at variance with our end objective. We simply plead for a circumstance where we can bring this home, where we can give effect to this particular legislation and make sure that we eliminate petrol sniffing.

The bill does not address the Opal fuel supply and subsidy issues cited in the committee report. The committee itself recommended—and this is recommendation 4:

… that there be further examination of the wording of the explanatory memorandum, consultation and exemption clauses, to ensure that fuel manufacturers are properly included, and the bill does not have unintended consequences—

Senator Siewert: Read the amendments!

Senator BACK: Thank you, I will pay particular attention to the amendments, Senator Siewert. Recommendation 4 continues:

in the event of supply bottlenecks or disruption—

of supply. Recommendation 5 says:

The committee recommends that the Australian government conclude as soon as practical a subsidy review that covers production of up to 100 million litres per annum of low aromatic fuel.

Where does the funding come from for this particular exercise? As most people would be aware in Australia, about one-third of the cost of all retail fuel is fuel excise tax and GST. So, in a typical $1.50 per litre price that somebody might pay here in Canberra, about 38c of that will be fuel excise tax and 13.6c is GST—totalling 51.74 per cent. So more than a third of the actual retail price does go to government in some form or another. So there certainly is adequate funding to be able to give effect to this, and that should not be, and has not been, presented as a barrier.

I now come to a well-understood point in most areas for people associated with the emergency services—and I would see addressing the issue of petrol sniffing as being in that category of emergency—and that is that problems are best solved closest to where the affected people are. Unfortunately—much as we think the federal government and everything it does is important and that Canberra is the seat of power as it relates to this area—the simple fact of the matter is that we are a Federation of states and territories, and it has been my experience, especially in the emergency services area, that the more remote you are from where decisions are made the less effective the outcomes of those decisions will be.

This provides us with a tremendous opportunity in my view for locals to own the issue. That is why I plead for a continuation of the process, where the matter is dealt with at state and territory level, so that they have ownership of the problem and can then drive it through to local communities. We know of course that the areas that are the subject of the proposed legislation at the moment are those in which the highest concentration of petrol sniffing occurs. But then, as has been recorded this morning again by Senator Smith, we had the regrettable circumstance only recently in Port Hedland in Western Australia—which of course is well outside the area of this proposed jurisdiction—where a young person suffered burns to 40 per cent of his body because he was apparently trying to obtain fuel for this sniffing. So we have got to come up with a wider solution, one which will actually expand beyond the high-concentration areas to pick them all up. I plead again for a situation in which we drive this to the local level, where there is the greatest demand and the greatest impetus for this to happen.

We all know, and those of us who are associated with local and small communities do know, that when those communities own the issue they also own the solution and they commit to its implementation. Where they see that issues are related to remote decision-making, they will turn off and they will not have that sense of ownership, which I think all of us would agree is required in such circumstances.

We have had recently some wonderful contributions, in my view, from Aboriginal women especially who are providing leadership in this country. I wish to reflect on them for a moment because it comes back to the point I was just making about local ownership, local responsibility and local determination to solve problems. Initially I go to the text of a letter from a Kimberley Aboriginal elder, Rita Augustine, which was sent to then Senator Bob Brown. She makes some wonderful points which I would like to repeat. She said:

We are proud of our history of caring for this country over thousands of years. The country tells us who We are. It gives us strength and determination. But now we face great challenges; not only about our country and our culture, but about our survival as Indigenous people.

Whilst not all the comments made were in relation to the question of petrol sniffing, so many of her comments are relevant to this debate. She speaks of the need 'to face up to our own challenges, and to build a better future for our children, our people, our culture, and our country'. Whilst I was not going to refer specifically to Dr Bob Brown, to whom she had written this open letter, as a result of Senator Milne's comments a few moments earlier I think it is reasonable that I do so. She said:

Dr Brown, it is hard for us to understand why you think it is necessary for you to speak on our behalf, about our country, our culture, and our futures.

The only thing We need saving from, is people who disrespect our decisions and want to see our people locked up in a wilderness and treated as museum pieces.

We are a living people and a living culture. We have faced severe change over the last 200 years, and most of it has been far beyond our control.

All of us in this chamber would agree that the issue that is before us now, that of the impact of petrol sniffing on young people, certainly has been beyond the control of that community of people. She went on to say:

I am an old woman now and I have witnessed and lived the despair and hopelessness of many Kimberley Aboriginal people.

She reflects on watching 'children grow up in despair, die before they are 50, or even worse, take their own lives before they get to their 20s', a very, very passionate statement. She also speaks of the need for her own community in that particular case to be the ones to actually make their decisions.

In the same theme, I would like to go very briefly to the farewell speech last week, on 14 November, in the assembly in Western Australia by the member for the Kimberley, Mrs Carol Martin—I think, the first Aboriginal lady in the Western Australian parliament. Whilst her speech was very comprehensive and wide ranging, she made a plea, in the same context of what I am saying. She said:

The Department of Indigenous Affairs is my bugbear forever. It is a colonial structure that is still in place in this day, in this age and in this country where Aboriginal people are given second-class service.

Get rid of it, please. … Give Aboriginal people the rights of citizens like any other citizens.

She made that plea. I do not think it is any coincidence that it is Aboriginal women who are the ones who speak so eloquently for the Aboriginal community.

My final comment in relation to this are the comments and the quotations of Northern Territory minister Alison Anderson, who is one of the nation's most senior Indigenous politicians. Rebuking her own people earlier this month—which was widely publicised—for relying on welfare, she said that they need to grow up and stop resorting to the 'dangerous conversation of endless complaint' and that she 'despaired at the reluctance' of some of her community to take available jobs. She was talking of people in Yirrkala not being prepared to drive the 20 kilometres to Nhulunbuy 'to earn excellent money in the mine and the processing plant there'. She went on to reflect the loss of adults. She said that there were 'less than half as many adults per child as for the non-Indigenous population,' and she asked: 'Where are the missing adults? There is no way to put this gently: they are dead.'

In conclusion, I say that there is unanimity in this chamber on the solution of this problem. I plead that we come up with a solution that works, that we drive ownership of the issue to where it can actually be addressed—and in this case, legislatively, that is correctly the states and the territories—so that they own that problem, they own that responsibility and they get financial support from the federal government. If there is a further need for communication between the federal government and, for example, fuel majors, that is appropriately the role of federal government instrumentalities. The issue is state. The issue is territory. The issue is local. Please can we have a solution that reflects the locality of the issue?

Senator McKENZIE (Victoria) (11:19): It is with a heavy heart that I rise to speak on the bill before us today, the Low Aromatic Fuel Bill 2012. The intent of this bill is to change the Corporations Act to mandate the use of the low-aromatic fuel known as Opal in some areas, to prevent petrol sniffing—a terrible problem in our Indigenous communities. Other senators have spoken eloquently today and at other times on the problem that petrol sniffing is for our First Australians. The bill aims to ensure that communities with serious petrol-sniffing problems can contain and hopefully turn their situation around—and I do not think anybody in this chamber disagrees with the intent of this legislation as stated.

There are 123 sites in remote Australia selling Opal fuel, and a substantial increase in this number is foreshadowed. That is a positive step. Opal fuel is produced by BP and it has very low levels of aromatic hydrocarbons. Hydrocarbons are the chemicals which give sniffers their high. They are also the same type of molecules as those used in spray cans, which is what some young people use in other areas.

There are often tragic consequences for the sniffers, for their communities and for those who love them, and it is a particular tragedy when young people are petrol sniffers. However, some petrol stations within this area refuse to sell the low-aromatic fuel, and that goes to the crux of this bill. The Greens are attempting to go it alone on solving the issue of dealing with the remaining retailers in remote Australia who are selling regular unleaded petrol rather than Opal fuel. Senator Scullion made very clear his desire to work collaboratively with the Greens on coming up with a legislative solution to this scourge of our society.

I come from Victoria, where we do not have a large Indigenous population, and I had only heard about petrol sniffing; I had not experienced it. I was not part of the Senate Community Affairs Legislation Committee when they went to remote Australia and heard directly from the communities, but I did go and see the movie Samson and Delilah and was very challenged by what I saw. It follows the lives of two Indigenous teenagers, one of whom becomes a petrol sniffer, with tragic consequences. In the last scenes, the young woman, in order to save the man she loved, drove the car out into the bush and drained the petrol onto the ground so that there was no way of getting back, in order to get him away from the substance that was changing him so significantly and as a way of recovery and rehabilitation. I think that film took the issue out into the wider community.

The community affairs committee conducted the inquiry into the bill. They travelled to Alice Springs to see and hear firsthand from some of the stakeholders with intimate knowledge of this issue, and it was not the first time the committee had done that. I would like to place on the record my thanks to all those who contributed to the inquiry, who submitted, appeared and participated in any way, and the secretariat staff who worked so hard to put it all together under the leadership of Senator Moore and Senator Siewert, who are great advocates in the community affairs committee space for our First Australians.

The committee made a number of recommendations which included that this bill not proceed, and the Greens submitted a minority report. There were specific details around why the bill should not proceed, and one of them was that the legislation should not rely on the corporations power. Another was that different definitions of fuels to which the legislation applies should be addressed, and I note that through an amendment that has been addressed. Ongoing coordination with state and territory governments was also recommended to prevent supply issues with Opal. That goes to the crux of some comments I will go to later and the modus operandi, I guess, of the Greens in continuing to ignore and be frustrated by the fact that state governments exist in our Federation. The committee also recommended a review of the Opal production and distribution subsidies. I understand where the Greens are coming from when you look at the excellent results from the rollout of the Opal fuel. I appreciate the interest of Senator Moore, Senator Siewert and many others in this issue and I acknowledge that there is bipartisan support for ensuring a positive solution for affected communities. A solution that works around this issue is always going to be cross-jurisdictional.

The original rollout of Opal fuel and the development of the Petrol Sniffing Strategy was the initiative of the Howard government under the leadership of Tony Abbott as the then minister for health. The initiative was implemented through collaboration with industry and with some incentives to ensure that industry took up the opportunity to sell a product that would have such a positive benefit out there in Indigenous communities. The package also included activities to support communities—youth diversion, rehabilitation, policing, communication and education strategies. I am pleased to say that, as a result of that and of ongoing initiatives by the current government, Opal fuel is now available in 106 sites across Australia. This is a great step forward and one that not just the coalition but all Australians can be pleased with.

The results speak for themselves. Research indicates that where Opal fuel has been introduced it has been effective in reducing sniffing by, on average, 70 per cent. The result has been even better in areas where there are no retailers selling regular unleaded petrol, with a 94 per cent average reduction. So we know it works, leading to some fantastic results out there in communities. Although Opal fuel is subsidised, the savings to communities and individuals, in health care and otherwise, from Opal fuel are significant.

The community affairs committee heard from Mr Andrew Stojanovski, who spent 11 years in remote Aboriginal communities in the Northern Territory working on petrol-sniffing issues and was awarded the Order of Australia Medal for his work. He told the committee in his submission:

Up until Opal was introduced in Central Australia I expected that I would spend my career working on petrol sniffing, community by community … Over my career the best I could hope for using this approach would be to eradicate sniffing in four communities over a period of forty years.

It would have been a long and slow process. He also said that, following all of his hard work, the introduction of Opal had not only changed the reality for Indigenous communities and petrol sniffers and those who love and care for them but also changed his life and how he saw his contribution to this problem.

The South Australian Centre for Economic Studies has found that there would be a $780 million benefit in shifting from regular unleaded petrol to Opal fuel in the area of their analysis. You will have heard from my colleagues here today about the Central Australian Youth Link Up Service. The service told the community affairs committee:

We consider the low aromatic fuel rollout to have been a great success to date. It has completely changed the focus of our work.

Fantastic! So we know the strategy works. It is a very impressive story from a Canberra policy sense and from a community sense out there on the ground.

No-one is arguing that we do not need to solve the problem and no-one is arguing with the fact that decreasing access to regular unleaded fuel assists with the problem. However, the bill before us today relies on the corporations powers under section 51 of the Australian Constitution. As such, it will have no effect on unincorporated traders. This means that any sole trader, partnership or other trading entity will not actually be covered, and there are a few petrol stations around our nation that are so constructed in the way they have set up their businesses.

We know from the current situation that one point of leakage or availability of regular unleaded petrol is enough to allow sniffing outbreaks in a large surrounding area; there is a black market in unleaded petrol in these areas. So it is a serious flaw that only certain traders and petrol stations are actually going to be covered. There are some traders who will stock and sell regular unleaded petrol—and we have seen that growing. That indicates that, if they see a commercial advantage in restructuring their businesses to continue to do so, they are going to do it. So the bill will end up being ineffectual as a result. The committee heard that there are even a number of traders who falsely believe that Opal fuel results in performance impacts and has a negative effect on engines. So there is a real issue around education. The belief in performance impacts has been proven to be untrue, but it is still up to traders to make their own decision on whether they choose to sell Opal. So the bill, which does not cover every trader in the area, will be all but ineffective. As this bill will apply only to incorporated traders, as I have said, there will still be regular unleaded petrol available from any petrol station trading as a sole trader or partnership or under another business model. In addition, a service station that has so far refused to stock Opal for whatever reason would only need to change its corporate structure to continue to sell regular unleaded fuel. The committee came to that same conclusion, recommending:

… that a legislative scheme for low aromatic fuel not be confined to reliance upon the corporations power.

Yet here we are today.

Perhaps the Greens could consider looking to the state governments, who have jurisdiction over these sorts of issues, to help find some constructive solutions. But I note Senator Milne's comments during this debate around the black hole of COAG and the disrespect that is continually shown to state governments and any collaboration that COAG or the state governments seem to do in developing national cooperative approaches that take into account the fact that they are separate entities. I look to Senator Waters's issues around the EPBC Act and state governments coming together with a framework on how we are going to go forward on dealing with environmental issues. I think the disrespect for the COAG process and the states as a consequence is the modus operandi for the Greens and does not always deliver the best policy solutions, as Senator Back outlined in his contribution with respect to localism. Similarly, Senator Scullion commented on the Northern Territory legislation that could be used as a framework for going forward. A further recommendation of the committee was, in fact, just this:

… that the Australian Government continue to consult with the relevant state and territory governments on the possibility of national legislation to mandate the supply of low aromatic fuel to ensure that there is agreed and coordinated action to address petrol supply.

I am really looking forward to the committee stage of this bill to ensure that we have actually consulted with state and territory jurisdictions and to establish what form that consultation has taken. It is inappropriate to use Commonwealth law in an area which should be governed by state and territory law. Commonwealth legislation will be open to challenge and will apply only to incorporated traders, as I have already gone over.

The coalition has been seeking to address this issue. The Deputy Leader of the Nationals and coalition shadow minister for Indigenous affairs, Senator Scullion, has made very clear his intent to work collaboratively with the Greens and with the government on issues of improving the plight of our First Australians and to seek a bipartisan solution, because that is the only solution that is going to work going forward. Senator Scullion himself met with the Northern Territory Chief Minister, Terry Mills, as recently as 23 October to discuss petrol sniffing and associated issues. It was agreed that the Northern Territory's Volatile Substance Abuse Prevention Act could be used to stop the sale of regular unleaded petrol in certain areas, and the Chief Minister agreed that Senator Scullion could go on to discuss appropriate amendments.

So in the Northern Territory, where this problem plays out in communities most keenly, the wheels are already in motion to deploy the legislation against petrol sniffing—legislation, Senator Siewert, that will actually work. Under this approach, a group of 10 or more residents of a locality or a community council could seek to prevent supply of a particular substance, including petrol, in that location, which goes back to Senator Back's comments on communities taking control of their area. The Greens are right: in a previous contribution, Senator Milne, I think, said again that communities are screaming out for this issue to be addressed, but they are not screaming out for this bill and this approach.

Senator Siewert: Oh, yes, they are. That's where you're wrong.

The DEPUTY PRESIDENT: Order, please! Senator Siewert, could you not shout across the chamber.

Senator McKENZIE: I will continue to outline the Northern Territory approach. The Northern Territory Department of Health would then lead a process that would take account of interested parties' contributions to develop a management plan that could specify restrictions on the supply and use of regular unleaded petrol or other sniffable substances in that community. Senator Scullion has also written to the other states involved to propose that they consider adopting similar legislation. State and territory legislation based on the Northern Territory's can be more targeted and more flexible, will be more legally robust and will actually be a solution that provides confidence to those communities on the ground to take action when they experience a problem, instead of Commonwealth legislation being thrust upon them from Canberra.

The coalition has been proactive about developing a long-term, effective solution to this problem and has been attempting to work with both the government and the Greens—unfortunately, as of this morning, to no avail. Even the Greens themselves acknowledge that the bill would be ineffective. As they said in their minority report in the community affairs inquiry report:

The bill introduced by the Australian Greens does not in itself cause anything to take place. It is enabling legislation.

My concern, and the concern of the coalition, is that the Greens' decision to go it alone on the legislative approach to the scourge of petrol sniffing has meant the imperfect bill before us today. Petrol sniffing will not be stopped by this bill, not because of a lack of good intent in the bill but because it uses the wrong legislative mechanism to achieve the outcome. The Greens and Labor know this. I go back to my commentary on traders and how they will structure their businesses if there is a commercial advantage in doing so. We all know that they are capable of doing that.

Labor, as part of its opportunistic deals with the Greens, changed its mind. We do not know what the deals are; we just know that we are now debating this bill before us. Minister Snowdon changed his mind and now this bill is before us. It would be fantastic if the community and the Senate understood the price of getting this legislation onto the agenda this morning for debate with the government support. I guess we should not be surprised, because evidence based, effective policy for this government is shelved for political expediency, something we have seen time and again. We are here in the second-last week of our sitting year with another backflip as we have seen a political fix occur. I hope the details are going to be outlined somewhere. We have a couple more speakers. I hope that a little gold nugget will come forward. We saw it with the supertrawler, we saw it on live cattle exports, we saw it with the excising of the migration zone and we saw it with the carbon tax. With science and evidence based policy, a legislative approach that uses mechanisms that will work is shelved for short-term political gain.

My strong desire, in terms of addressing this problem, was that the Greens would choose to use being highly effective with this Labor government, rather than this strategy, to get the bill on the agenda and get the government's support. The Greens chose to mobilise their highly effective e-campaigners—the 76,000 that changed the minds of Minister Ludwig and Minister Burke. They could mobilise them to get consumers and industry to get behind them by running their businesses and purchasing the products that will lead to long-term and effective change in Indigenous communities as Opal becomes the only fuel sold. I am not sure what really happened in the past day or so to change the government's mind. Obviously, the bill is being done. I wish that the— (Time expired)

Senator BOYCE (Queensland) (11:39): Petrol sniffing has apparently been around or known of since about 1951, but it was not until the 2000s that action was taken. Certainly, Senator Rachel Siewert, who was instrumental in getting the first inquiry held, deserves congratulations on doing that, as do many organisations, such as CAYLUS, and many elders, particularly the women, in rural Aboriginal and remote communities that pushed for something to be done about the scourge of petrol sniffing. As a member of the community affairs committee I have been involved in two of the three petrol-sniffing or low-aromatic fuel inquiries that the committee has held. It has been very instructive to visit communities and to see what is being done and what cannot be done because of the problems not just with petrol sniffing but with chroming and glue sniffing, with the substitution of marijuana, or ganja, for petrol when it is not available.

We are looking at a more serious problem and an underlying and complex problem around why petrol sniffing happens. Just recently the ABC reported that there had been an outbreak of petrol sniffing in Tennant Creek, with 10 young people sniffing petrol. It is really a very serious issue. Some of the things that have happened have certainly improved the situation, and the development of Opal fuel by BP is one that needs to be lauded and celebrated. In itself Opal fuel, the low-aromatic fuel, has made a major difference to the number of petrol sniffers.

Part of the original inquiry that sought to push the introduction of low-aromatic fuel said that youth programs needed to be established in many of the communities where petrol sniffing happened because it was a result of loss of self-esteem, it was a result of boredom and it was a result of lack of cultural connection. On the second inquiry that the committee held, we went to a number of remote communities, met people undertaking youth work programs and saw that there were some benefits beginning to develop.

I must admit the one thing that has concerned me in many cases in regard to the sorts of programs that we as governments—federal, state and territory and even local—impose on Aboriginal communities is that we do not have a component to try and build local social and community capacity. We tend to still have the situation, which was obvious in one community we visited, where the youth worker leaves after a few months, as they are expected to do when their contract expires, and the program stops. I am very happy to accept that someone with a degree in youth work is probably far superior at setting up a youth development program than someone without a degree. But I certainly know of many communities throughout Australia where locals have seen a need and simply filled it, perhaps not as expertly as someone with a degree. But what we are not doing is giving communities the sense that they are in control of their own destinies and that they are the ones who should be working out how to fill the gaps.

The other consequence of petrol sniffing and other substance abuse is that in many cases in some of these communities we have a semi-literate generation of young people who are not able to assist their own children with their education. They do not see the benefits of education and do not support education for their children, which, of course, creates an ongoing problem that may yet affect another generation. It has really become a serious problem that needs very complex solutions and I congratulate all those who are working in the area to try to develop some of those solutions.

I note, in the outline accompanying the amendments to the Low Aromatic Fuel Bill that have been provided to us today, that the government says:

The Government recognises the devastating impact of petrol sniffing on young lives and the importance of action to reduce the incidence of petrol sniffing and its impact on families and communities. In this context these Government amendments are in keeping with the Bill’s object to reduce the potential harm to the health of people, including Aboriginal persons and Torres Strait Islanders, living in certain areas from petrol sniffing. The amendments also provide clarity on a number of technical issues to facilitate the clearer administration of the Bill.

If this is true, I cannot imagine that anyone would have any concerns with this bill. But when you get a virtually rewritten bill, with 25 substantial amendments attached to it, 10 minutes before the debate begins, with no notice to the coalition, naturally one suspects a rat. I noted that Senator Siewert interjected a number of times during speeches, saying, 'Read the amendments.' This was in terms of some of the coalition's objections to this bill. The amendments do in fact include a change so that instead of the bill saying 'a corporation must not supply regular unleaded petrol in a low-aromatic fuel area' it now says 'prohibiting the supply of regular unleaded petrol in a low-aromatic fuel area'. If this had been discussed and gone through with the coalition and if it had been suggested that this was a good way to get around objections to the Corporations Act not covering sufficiently the concerns and the organisations that are involved in ignoring the low-aromatic fuel position, that would be fine. But, of course, we have nothing except those words written on a piece of paper and Senator Siewert interjecting, 'Read the amendments.'

As I think everyone in this place knows very well, Senator Nigel Scullion has been at the forefront of trying to ensure that low-aromatic fuel is available throughout the Northern Territory, and many others in this place have been keen to ensure that low-aromatic fuel is available in my own home state, particularly in areas of Western Queensland where it currently is not available and in the APY Lands. This is not just a problem for Indigenous communities, but the main areas of concern have been in Indigenous communities, and that is where the change to low-aromatic fuels has made a very large difference. If in fact those amendments overcome the objections that were made by all parties when this bill was before the committee, then certainly let's look at them; let's consider them. However, given that there are currently negotiations going on with the states and territories and given that this bill appears to say that the minister will only legislate if states and territories do not, surely the best way to go ahead with this is through negotiation and discussion.

As I said, if the bill would do what the government now says it would do, let's have a proper look at it. Let's certainly look at going ahead with the legislation if it will reduce the incidence of petrol sniffing and therefore the devastating impact of petrol sniffing. We have no problems with that, but why would these amendments simply be rushed into the chamber with no discussion with the coalition, who I think both the Greens and the government know have strong concerns in this area about reducing and then eliminating petrol sniffing? Certainly it would be our strong intention to go ahead in that way, and the government and the Greens certainly owe it to us to sit down with us and look at this. Also, they should be talking to the communities and the state and territory governments involved. Without their involvement, it is a ridiculous proposition to suggest that this bill should simply be passed because the government and the Greens say: 'You don't need to read the amendments. You just have to accept our word that they do exactly what we say they do.' This is certainly not acceptable to the coalition but we are certainly open to discussion on the topic.

The PRESIDENT: Order! The time for the debate has expired.

Senator RHIANNON (New South Wales) (11:54): I move:

That the following bill be introduced: A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes—Environment Protection and Biodiversity Conservation Amendment (Prohibition of Live Imports of Primates for Research) Bill 2012.

Question agreed to.

Senator RHIANNON: 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 RHIANNON (New South Wales) (11:55): I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

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

Leave granted.

The speech read as follows—

This bill, the Environment Protection and Biodiversity Conservation Amendment (Prohibition of Live Imports of Primates for Research) Bill 2012 amends the Environment Protection and Biodiversity Conservation Act 1999 to disallow the import into Australia of live primates for the purposes of research.

The bill does not ban the use of primates for research per se – which is a separate issue that requires rigorous examination. There are three government funded facilities in Australia that breed primates for research. Permits for the importation of live primates have been neither sought by these facilities, nor issued since 2009.

Nor does the bill provide a blanket ban on the importation of primates for other purposes such as zoos.

This bill thus formalises current practice whereby primates have not been imported for research purposes to Australia for many years

It also ensures Australia does not participate in the unethical trade of wild-caught primates used in experimentation for the research industry.

Australia is signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which commits to ensuring international trade in flora and fauna does not threaten their survival. All non-human primates are listed as CITES specimens, and as such wild-caught animals may not normally be traded.

Australia's National Health and Medical Research Council's (NHMRC) policy on non-human primates for scientific purposes also states that "whenever possible investigators obtain non-human primates from National Breeding Centres".

The global wildlife trade is recognised as one of the biggest threats to biodiversity conservation, and the major trade in nonhuman primates – as live, as body parts or as meat – presents a significant risk to their conservation in the wild.

The illegal and unsustainable trade in primates is "increasingly recognised as an urgent threat to conservation" and is described as a "conservation crisis". One of the main sources of nonhuman primates to meet global demand is Southeast Asia. Since the 1970s Indonesia has been a major exporter of monkeys.

When India and then Bangladesh banned primate exports in the late 1970s, Southeast Asia became "a major hub of wildlife trade". With its concurrent highest rate of tropical deforestation on the planet, the loss of its biodiversity is described as "an impending disaster".

The list of threats causing decimation of the world's wild primates is a long and bleak litany which includes the trade in monkeys to supply the booming biomedical and pharmaceutical research industry.

Around the world an estimated 100,000 to 200,000, nonhuman primates, or monkeys, are used in experiments every year, and tens upon tens of thousands of monkeys are traded around the world to meet the research industry demand. According to US Department of Agriculture figures, in the US alone the use of nonhuman primates in experiments rose from 57,518 in 2000 to 71,317 in 2010.

There is considerable clinical evidence that much animal-based research correlates poorly with the human response. This is confirmed by scientific reviews that show correlations between the results of animal experimentation and human outcomes is negligible, expensive and unnecessary. Most animal experiments do not translate to clinical trials, are not validated, minimally cited, and use methodologies that render findings as unreliable.

For example, Bailey's 2005 scientific critical review on research using animals came to the conclusion such findings "have little or no predictive value or application to human medicine."

Matthews' 2008 paper in the Journal of the Royal Society of Medicine points out that much of the claimed value of animal research is anecdotal rather than quantitative and that there are "relatively few quantitative studies of the predictive abilities of animal models". Where such studies do exist in toxicity testing, "the data provided by these studies is typically incomplete, ambiguous, and subjected to inadequate or incorrect analysis." However "the evidential weight of animals models that emerge are at best inconclusive, and sometimes wholly misleading."

The Medical Research Modernization Committee, a health advocacy organisation comprised of medical professionals and scientists, found in their 2006 critical review that "human data has historically been interpreted in light of laboratory data derived from nonhuman animals. This has resulted in unfortunate medical consequences."

The 2006 autoimmune, multiple scleroses and leukaemia drug trial at Britain's Northwick Park hospital where 6 young men suffered multiple organ failure after taking a new drug shown to be safe at a 500 times greater dosage in monkeys, is one such example.

In 2002, the House of Lords Select Committee on Animals in Scientific Procedures stated "the formulaic use of two species in safety testing is not a scientifically justifiable practice, but rather an acknowledgement of the problem of species differences in extrapolating the results of animal tests to predict effects in humans." The Committee also concluded "that the effectiveness and reliability of animal tests is unproven" and that "the reliability and relevance of all existing animal tests should be reviewed as a matter of urgency."

A 2004 UK survey by Europeans for Medical Progress found 82% of general practitioners "were concerned that animal data can be misleading when applied to humans."

Safer Medicines, a British patient safety organisation of doctors and scientists articulates the growing questions from a safety perspective: "whether animal testing, today, is more harmful than helpful to public health and safety" with "alarming evidence that animal tests fail to protect us" in areas from strokes, to AIDS, cancer, autoimmune diseases and more.

Knight's 2007 review on animal experiments found published experiments on chimpanzees, as the species most closely related to human primates, have been shown to generate data of "questionable value" and to make insignificant contributions to cited research – with in vitro studies, human clinical and epidemiological studies, molecular assays and methods, and genomic studies contributing most to the development of combating human diseases.

Not surprisingly, this is because chimpanzees' phenotype, that is their morphology and biochemistry, is markedly different to humans.

Yet with the progressive banning of testing on chimpanzees around the world, the research industry has turned to smaller nonhuman primates that are even more removed from the human phenome. This is despite cheaper and more scientifically reliable and valid methodologies and technologies already existing and being used by more and more laboratories around the world.

The Greens urge government, regulators and research institutions to practice these sophisticated and humane research methods. These include genomics, proteomics, nanotechnology, phage display, microdosing, microfluidic chips, epidemiology, autopsies, computer modelling deducing toxicity based on chemical structure of compounds, more thorough world research databases, and tissue and cell in vitro research such as the Ames Test.

Australia has not permitted the import of live nonhuman primates for research since 2009.

From 2000 until 2009 the CITES database records Australia permitted the live import of 331 Pig-tailed macaques from Indonesia for research. These are listed as Vulnerable to extinction on the IUCN Red List of Threatened Species.

In the same period Australia also permitted the live import of 71 Owl monkeys for research "breeding purposes". This species is also listed on the IUCN red list as "although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival." The IUCN also notes concern that large numbers of these South American species are used in research, and that the issue of wild-caught Owl monkeys "should be monitored to understand the effect on populations."

During 2000-2009 250 long-tailed macaques were also imported into Australia for research purposes. These monkeys are noted on the IUCN red list as suffering declining populations, and a CITES meeting in 2011 expressed as "imperative" a reassessment of the species was needed, given the trapping, laundering and largely illegal trade of massive numbers of wild caught long-tail macaques to support the pharmaceutical industry and its researchers

The European Commission states that the majority of Asian (Old World) monkeys traded for the global research are not bred in western facilities but are born to wild-caught captive monkeys in Asian facilities. The IUCN Primate Specialist Group's Ardith Eudey described these as "lucrative operations ... [that] may serve to 'launder' wild-caught monkeys" to sell as captive-bred to the research industry, and which "appear[s] to have resulted in their disappearance even from legally protected areas".

More than half of the 70 species of primates in Southeast Asia are found in Indonesia, which "features prominently on the list of source countries for both domestic and international trade," and it is from here Australia sourced most of its primates for research until the last importation in 2009.

In 2009, a BUAV (British Union Against Vivisection) undercover investigation confirmed the IUCN's and other scientists' concerns, revealing Indonesia's "official" ban on the export of wild-caught primates for research (in line with its CITES obligations) is a farce.

Monkeys were shown suffering high levels of cruelty during their capture, confinement and transportation, with an endpoint destination of experimentation in the world's laboratories.

BUAV also found Indonesian wild-caught monkeys are coded as "captive-bred". Monkeys wild-living on islands, such as Australia's source island - Tinjil Island - are also coded as "captive-bred" because the whole island is described as a "breeding facility".

The investigation also revealed monkeys trapped in inhumane conditions by villagers who view them as pests and ready income. Baby monkeys are taken from their trapped parents who were often killed rather than being released back into the wild. Mother monkeys are sometimes shot with air rifles forcing them to flee and drop their infants. Monkeys are chased by dogs to be entangled in nets or ropes which often strangled the trapped terrified animals.

The monkeys, including the infants, are then kept in filthy, crowded and barren concrete pens with metal grid floors lacking fresh air or sunlight, many with no access to water or food. In one primate breeding and supply facility infants were kept in small empty pens with smooth walls, no perches and only a wire ceiling, from which the scores of babies would hang frightened in the absence of safe shelter.

Monkeys are then transported around the world, sometimes kept in transit for days, packed into crates too small to stand up in, suffering the noise, inadequate ventilation and extreme temperature fluctuations. If there are transport delays, there is often insufficient food and water.

One UK primate import company alone had a mortality rate of nearly 19% of its delivered monkeys, all from Indonesia, during 1988-1991.

In the 2001 May Budget estimates, it was stated that the three Australian primate breeding facilities were established, among other reasons: "to remove the necessity to import these animals into Australia; and to protect these species in the wild by breeding them in captive colonies"

This bill if passed, would confirm in law that Australia does not support the cruel and inhumane primate trade for experimentation and that Australia will not participate in practices leading to the extinction of primates in the wild.

This is a small but important step.

The Greens support the global scientific 3R principle for the use of animals in research – replacement, refinement and reduction. We support the call by leading scientific researchers and medics, and by important organisations such as Humane Research Australia, for legislators and regulators to support a more methodologically sound and effective science that transitions away from the 19th century practice of animal experimentation to the more sophisticated and credible modern methods of biomedical research already being used with more accuracy and success today.

I commend the bill to the Senate.

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

Leave granted; debate adjourned.

Senator McEWEN (South Australia—Government Whip in the Senate) (11:56): At the request of the Chair of the Environment and Communications References Committee, Senator Birmingham, I move:

That the time for the presentation of the report of the Environment and Communications References Committee on the protection of Australia's threatened species and ecological communities be extended to 28 February 2013.

Question agreed to.

Senator McEWEN (South Australia—Government Whip in the Senate) (11:56): At the request of the Chair of the Foreign Affairs, Defence and Trade References Committee, Senator Eggleston, I move:

That the time for the presentation of the report of the Foreign Affairs, Defence and Trade References Committee on aid to Afghanistan be extended to 28 March 2013.

Question agreed to.

Senator McEWEN (South Australia—Government Whip in the Senate) (11:56): At the request of the Chair of the Rural and Regional Affairs and Transport References Committee, Senator Heffernan, I move:

That the time for the presentation of reports of the Rural and Regional Affairs and Transport References Committee be extended as follows:

(a) Foreign Investment Review Board national interest test—to 27 February 2013;

(b) fresh pineapple imports—to 20 March 2013; and

(c) fresh ginger import risk analysis—to 20 March 2013.

Question agreed to.

Senator McEWEN (South Australia—Government Whip in the Senate) (11:56): At the request of the Deputy Chair of the Parliamentary Joint Committee on Law Enforcement, Senator Nash, I move:

That the Parliamentary Joint Committee on Law Enforcement be authorised to hold a private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate on Thursday, 22 November 2012, from 6 pm.

Question agreed to.

Senator KROGER ( Victoria — Chief Opposition Whip in the Senate ) ( 12: 21 ): On behalf of the Chair of the Environment and Communications References Committee, Senator Birmingham, I present the report of the Environment and Communications References Committee, Operation of the South Australian and Northern Territory container deposit schemes, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

Senator KROGER: I move:

That the Senate take note of the report.

Senator RUSTON (South Australia) (12:22): I rise to speak on the Environment and Communications References Committee report on container deposit schemes. The intention of this inquiry was to investigate the pricing and revenue allocation practices of the beverage industry in South Australia and the Northern Territory, which are the only two states in Australia where the CDS exists. The South Australian scheme is 35 years old and well established, and the Northern Territory scheme is brand new. As such, the South Australian community is largely accepting of this system of legislation. But I would just like to put on record that other states should be very, very careful before they consider going down this path, because there may well be better options available to achieve disposal outcomes.

I draw the attention of the Senate to a success story on this sort of management that does not have the overly burdensome requirements of the two container deposit schemes investigated in the inquiry. The success story to which I refer is the drumMUSTER, with 20 million containers safely disposed of since 1999. This scheme has been dedicated to helping farmers and chemical users keep their land free of waste. The plastic and steel from which these products are made is recycled and diverted away from landfill into new products. There have been pretty amazing results of this Industry Waste Reduction Scheme agreement. More than 25,000 tonnes have been diverted from landfill—465,000 cubic metres of uncompacted waste, enough to fill more than 120 Olympic-size swimming pools. That is 276 road trains packed to the top—almost 10 kilometres of road trains. If the waste were put into cotton bales it would be 110,000 bales. Laid end to end, that is enough containers to go from Brisbane down to Sydney, past Melbourne, across to Adelaide, past Perth and up to Broome, stopping at Kununurra—more than 8,200 kilometres.

The drumMUSTER is run by AgStewardship Australia Limited, an organisation established and developed to implement stewardship programs that reduce and manage waste for the Australian agricultural sector. AgStewardship Australia is rightly proud of what the drumMUSTER has achieved. The organisation is supported by the National Farmers Federation, CropLife Australia, Animal Health Alliance Ltd, the Veterinary Manufacturers and Distributors Association and the Australian Local Government Association. It has come a long way since the 4c per litre or kilogram was introduced. Today, 97 chemical manufacturers and 452 collection agencies or councils are taking part at 762 collection sites across the country. Since 1999, their programs have diverted more than 75 per cent of packaging that would have otherwise gone into landfill and has safely disposed of approximately 340 tonnes of unwanted chemicals. Most are managed by local councils at waste management sites and transfer stations and others by community groups, charities or even organisations like rural firefighters.

Because it is not overly bureaucratic, the drumMUSTER fits the different needs of a range of groups taking part. That is also a major reason the drumMUSTER has grown over time and continues to develop in individual ways. As the chairman of AgStewardship, Lauchlan McIntosh, has said, everyone from farmers, resellers, manufacturers and local councils have made the scheme efficient. Local governments are a key partner, recognising that the collection of the drums for recycling reduces landfill, besides providing a useful service for the taxpayers. The drumMUSTER has achieved a highly desirable outcome without the need for regulation. I know this is a foreign concept for many of those opposite, who see regulation as the answer to most problems. But the drumMUSTER has adapted in the flexible ways that government regulation just cannot do. I know the Greens in particular have an ideological hatred of agricultural chemical companies, yet it is by partnering with these firms that there has been proper disposal of unwanted chemicals. Research indicates that almost every farmer in Australia is aware of the drumMUSTER program, with more than 60 per cent having indicated that they have used the program.

Twenty thousand containers is a lot of drums. If more processors become involved, then hopefully we will end up seeing more and getting greater flexibility in our recovery rates. The challenge obviously is to get more sites. Overall, though, schemes such as the drumMUSTER mean a better stewardship of land, which is crucial to the health of the environment and to long-term prosperity. The CEO of AgStewardship Australia, Karen Gomez, who grew up in my home state of South Australia, attributes the success of the drumMUSTER to their pragmatic approach of owning and solving their own problems.

I commend AgStewardship Australia for what they have done so far and hope their example can pave the way for a concept of stewardship to replace some of the more outdated methods of regulation that currently exist. AgStewardship Australia sets a great example of taking responsibility for your own problems. By being proactive, this sector has saved itself a huge amount of time, money and angst. I would suggest that there is a lesson in this for all industry sectors: take responsibility for yourselves and you might avoid the burden of government intervention.

Senator WHISH-WILSON (Tasmania) (12:27): I am very disappointed in Senator Ruston's analysis of the container deposit scheme. She completely misunderstands the whole reason we had a Senate inquiry in the first place. To my knowledge, 20 million agricultural containers are not consumed outside the home by individuals and left lying around as rubbish, which was exactly the reason container deposit schemes were set up around the world in the first place.

I totally agree that anyone who uses a beverage container should be responsible for the disposal of that container. Unfortunately, human nature tends to intervene. No matter what fines and infringements we place on people—and I am sure Senator Ruston, coming from one of the cleanest states in Australia, would agree—they do not seem to work. We still get litter and we still get rubbish—and unfortunately that rubbish and that litter ends up not only in our environment but in our waterways and our oceans, and it breaks down into millions of pieces and finds its way into our sea life. Studies all around the world are now showing the ingestion of plastic from things such as plastic containers as far as the plankton food chain.

We know from packaging that 50 per cent of beverages in containers are consumed outside the home. It was fascinating to me, going to South Australia recently, to see how well kerbside recycling is working with container deposit schemes. South Australia—Senator Ruston's home state—achieves some of the highest recycling rates in the world: 84 per cent of containers consumed outside the home are recycled. This is a key point. We have kerbside recycling, and that is fantastic; nobody disagrees with that. But that is for containers consumed inside the home. I must say, my vineyard does not use chemical drums, because we are organic. I am a Green, but there are also non-Green people who are organic. I will make this point very clear: 20-litre drums of chemicals are not considered rubbish that people take to barbecues with them.

I have never seen someone turn up at a barbecue with a 20-litre drum of chemicals. I have never seen someone go to the football or a rock concert and dispose of a 20-litre drum of chemicals. It is an entirely inappropriate comparison to make and it shows a complete lack of understanding of our rubbish problem in this country.

It is not just Australia, Senator Ruston, that has implemented container deposit schemes. They have been successfully implemented all around the world. In fact, they started in the US to solve exactly this problem. How do we go from A to B and stop people from littering? We cannot. What we can do is work on the incentive that human nature responds to by putting a value on the rubbish that people leave lying around. Human nature lets us down on the left hand because people unfortunately litter when they are not supposed to and, on the right hand, people are prepared to go out and collect the rubbish. Why are they prepared to collect that rubbish? It is because there is an economic value on it. It is called a market based instrument. It is putting a price on pollution. It is using a market system. It is the most efficient system we have for solving our rubbish problem and it is a market based system. If you want to start sledging and throwing around comparisons about people who are on the left or the right and talking about regulation, that is using a market and a price signal to solve the problem. It is a very different point to what the senator was trying to make about the Greens being heavy on regulation. This is, in fact, not a regulation in the strictest sense of the word; it is an incentive. It is not a tax, as the Food and Grocery Council tried to make out. It is a levy that provides an incentive for people to do the right thing.

Let us talk about South Australia. I was very pleased to go there and see how proud they are of the container deposit scheme in their own state. Eighty-four per cent of all beverage containers are recycled. The Food and Grocery Council and other lobby groups for the beverage industry tried to make out that the packaging covenant, a co-regulatory approach that relies on volunteer agreements, is the best way to go. They could not provide any evidence as to how much packaging was consumed outside the home and how much of that was recycled, because their statistics relied on kerbside recycling, not rubbish outside the home. That is what container deposit schemes were set up for and that is what we were looking at in the inquiry.

It was also interesting for me to note that a state that was so proud of its scheme was surprised when the inefficiencies in that scheme were highlighted by a number of the key players. It is a lot worse in the Northern Territory, where a new scheme has been implemented and a large number of inefficiencies exist. I went to the Northern Territory and I sat and watched people stand in the sun and the dust for an hour with their children waiting to get their cans and bottles counted because people inside the depot were having to split 24 different ways every single container that came into their depot. It took people over an hour and a half to get their money before they left. That is a very inefficient system. All the participants we spoke to in the chain, including the beverage companies who own these supercollectors, agreed that the systems were inefficient and could be done much better.

In terms of rolling out a national scheme, yes, I agree with Senator Ruston: every state should take note of the existing schemes in the Northern Territory and South Australia. They should most definitely take note of what can be done better and what can be done more efficiently. There is absolutely no doubt from the Senate inquiry into container deposit schemes that we can do them a lot more efficiently. The use of new technology, only recently evident in both South Australia and Northern Territory recycling depots, will significantly reduce costs of the schemes.

It is also my view, and the view of the Greens, that beverage companies should not be part of this scheme. They should not be supercollectors. There is an inherent conflict of interest for companies that are fundamentally and ideologically opposed to using container deposit schemes being part of the system. It is like putting the fox in charge of the henhouse. There is no incentive whatsoever for them to improve the schemes. We believe that the inquiry has proven there has been profiteering in the South Australian scheme by Coca-Cola. That has been outlined in our dissenting report.

So, yes, future state schemes or a national scheme should be aware of the container deposits schemes in South Australia and the Northern Territory. There are things they need to know and there are significant ways we can improve the schemes. But the one thing that the EPA in South Australia and most South Australians I talked to, who are very proud of this scheme, pointed out is that in its environmental aim and objective—that is, increasing recycling and removing rubbish from outside the home—it is highly effective. Eighty-four per cent of all beverage containers sold in that state are recycled because of the scheme, because of this market based instrument that puts a price on plastic pollution and gives people an incentive to get off their backsides, pick up bottles and cans, and take them back to the depot. If they will not do it, kids will. Nearly everyone I saw at the depots in South Australia and in the Northern Territory were children with their parents. It is children making money. It is the Boy Scouts, church groups and community groups profiting from a scheme that distributes that income around the state.

It also provides a fantastic opportunity to aggregate other forms of waste. The South Australian container deposit scheme has revolutionised recycling in that state, and I believe it will do so for every state that adopts such a scheme. The packaging covenant at the moment does not provide an integrated scheme for integrating waste, particularly things such as e-waste and other types of waste that we saw being brought in by the same people who were there to cash in their containers. It could also be rolled out around this country by using private investment at no cost to the beverage companies and at no cost to the taxpayer. We believe there is a market solution to this right around the country. We also believe that new technologies that are being trialled will allow the schemes to run very efficiently and very cost-effectively. There is no doubt in my mind at all from my visits to South Australia and the Northern Territory that this could revolutionise the way we recycle in Australia.

I certainly like the reports that Boomerang Alliance have put out on a Tasmanian based scheme creating 300 new jobs with seven depots around the state. Hopefully, given all the awful garbage that I have seen lying around the Tamar River in the last two weeks, which we have done media on, we could also improve our recycling rates and take plastic out of our rivers and oceans where we know it is damaging marine life. It is the biggest source of pollution in our oceans. (Time expired)

Senator BIRMINGHAM (South Australia) (12:37): I am delighted to have learned from listening to Senator Whish-Wilson that you and I, Senator Ruston and Senator Farrell live in some type of litter and recycling nirvana. Where we are is obviously heaven on earth compared to everywhere else—and it is. It is a wonderful place to live, as we know. But I am not convinced that everything we have heard from Senator Whish-Wilson by any means stacks up to the most basic of fact checks or proofing. Firstly, seeing as Senator Whish-Wilson decided to dedicate the first part of his speech to responding to Senator Ruston, I might dedicate a little bit of time to responding to Senator Whish-Wilson before I reflect on the report of the inquiry that I was pleased to chair.

Senator Whish-Wilson claimed in one part of his speech that this type of scheme is the most efficient system we have but then in a different part of his speech that it was a very inefficient system. There was a complete contradiction even within the same speech. Throughout this inquiry, in much of what we heard from Senator Whish-Wilson's questioning, his approach was to question the inefficiencies in the systems of container deposit legislation in place.

He claimed that it was a market based system, not a regulation but an incentive. That is really quite remarkable, I think, for anybody. It is not regulatory, not a regulation? This is a system where the state government legislates to require that a 10c deposit be paid to anybody who returns a certain type of container to a certain type of place. That sounds very much like regulation to me. There is no variance in the price. The state government legislates that it be 10c. It is a fixed price. There is no market in terms of recognising that some of the products returned—say, aluminium cans—are worth an awful lot more than some of the other products returned. Some of them have greater value to recycling than other products.

Senator Whish-Wilson also claimed that evidence provided 'has proven profiteering by Coca-Cola'. Of course, I have not seen the minority report put down by Senator Whish-Wilson. I look forward to reading that and seeing how he has demonstrated and proven his claim of profiteering through the scheme by Coca-Cola. I think anybody with a relatively simple analysis of what occurs in the food and beverages grocery sector would acknowledge that it is a pretty competitive sector. They would acknowledge that at the retail level retailers fight for market share and at the wholesale and manufacturing level there is equally a fight for market share that occurs to maximise profits but to maximise profits in the most effective way—by maximising your sales and margin combinations.

I do not think through this inquiry we saw any credible evidence to support the claim of profiteering through these schemes. If anything, analysis undertaken at all manner of levels indicates that these schemes cost. They come at a cost. There is a merit based argument that can be made about the treatment of litter and the benefits of recycling, and I acknowledge those merit based arguments. We should acknowledge, though, that much has changed since the South Australian scheme was first enacted in the 1970s. Kerbside recycling did not exist then. In fact, very little of the recycling activities that we see today existed then. The scheme was tackling a very different problem to those that we look at today.

In talking about Tasmania, Senator Whish-Wilson suggested that if such a scheme were implemented there it could create hundreds of new jobs. Yet he claims that it all comes at no cost. You do not create new jobs in a sector like this without there being some cost application to fund those jobs.

Senator Whish-Wilson interjecting—

Senator BIRMINGHAM: 'It does not cost the taxpayers.' It costs the consumers—that is right, Senator Whish-Wilson. It costs the consumers, because the costs will be passed through to the consumers, who will pay more—

Senator Fifield interjecting—

Senator BIRMINGHAM: and who in large part are the same people as taxpayers. Thank you, Senator Fifield. Consumers, taxpayers, Australians, Tasmanians—whoever they are—will end up footing the bill through higher costs.

This inquiry did not, however, seek to take on board the merits of having a container deposit scheme or not. It really was a narrow inquiry that looked very much at the operation of the South Australian and Northern Territory schemes and some of these claims of profiteering that I think were firmly rebuked. The inquiry made some clear recommendations, though. In terms of claims of price impacts, anybody who decides to go down this path in future at a national or a state level should make sure that, just as was the case when the GST or the carbon tax was introduced, there are tests so that anybody who makes false claims as to the price impacts can be held to account for making such false claims. In terms of return rates of products, there should be transparency to give confidence and in terms of disputes that may occur within the scheme, there should be some clear dispute resolution mechanisms.

I particularly want to highlight the last recommendation of the report, which relates to the treatment of small containers—containers of less than 100 millilitres in size—that require refrigeration. I urge the South Australian and Northern Territory governments to exempt them. Perhaps the best known of these types of containers are the small Yakult products. They are consumed in the home, they have to be kept refrigerated and they will be captured through kerbside recycling without a container deposit scheme being in place. The committee has recommended that they be treated just as a litre of milk is treated because they are consumed, by and large, just as a litre of milk is consumed—that is, they should be exempt from the schemes. I would urge the South Australian and Northern Territory governments to look at that because it is placing an unfair cost burden on a number of small companies who produce these products. With that, I commend the report to the Senate.

Debate interrupted.

Senator CORMANN (Western Australia) (12:45): The coalition will not oppose these bills. In fact, the coalition strongly supports the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012 and thinks that we should have been dealing with this a long time ago. People across the superannuation industry who are focused on the best interests of their members and people across the superannuation industry who have been exploring opportunities for mergers to achieve efficiencies and benefits of scale which can then flow through in terms of lower fees and higher net returns have been waiting for some time for this bill to be passed by the parliament.

The coalition have been indicating for months that the government had our support. Of course Minister Shorten, the Minister for Financial Services and Superannuation, has known for months that he had our support to get this bill through the parliament, yet he has not progressed it in an appropriately timely fashion. This measure has broad support, is very sensible and does the sorts of things that we all agree with—which is ensure that super fund trustees can make decisions on mergers based on whether they make sense and whether they are appropriate in the best interests of members rather than be prevented, because of tax considerations, from making decisions that otherwise make sense. Instead of pressing ahead with that, Minister Shorten thought he was going to be a bit clever, which is what this government always does. He thought he would slip something in that is somewhat controversial. He put together two bills that have nothing to do with each other.

We have the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill 2012, which provides capital gains tax relief for merging superannuation funds, and we have the Superannuation Auditor Registration Imposition Bill 2012, which, consistent with the terrible track record of this government over the past five years, seeks to impose further red tape on a sector of the superannuation industry—self-managed super funds—which this government fundamentally dislikes. This government has an ideological dislike of self-managed superannuation. This government does not like those Australians who are working hard and saving hard to help achieve a self-funded retirement. It is always looking for ways to come up with more hurdles, more red tape and more costs and to make it less attractive for people across Australia to work hard and save to achieve a self-funded retirement. The second bill, which we are opposed to, is attached to the first bill for no reason other than that the minister and the government know that, because of our strong support for the first bill, attaching the second bill to it and making a package will force our hand so that we eventually roll over and let something go through that otherwise would not attract our support. That is a very bad and very dishonourable process. People across Australia need to understand what this government is up to.

Over the last five years, this government has given us more than 21,000 new regulations. This government is choking our economy in red tape. The Superannuation Auditor Registration Imposition Bill 2012 is a very insidious part of that agenda by this government because it is targeting those Australians who are doing the right thing, who are doing everything they can to achieve a self-funded retirement, which ultimately helps take pressure off the public purse.

It is quite extraordinary that, despite our publicly indicated support for the best part of this year, the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill has not come before us until the second last week of the sittings. To go through a bit of detail, capital gains tax considerations can be a barrier to the merging of superannuation funds, even where that merging otherwise make sense and would deliver benefits to fund members. Whenever superannuation funds merge, this will typically trigger a capital gains tax event, which leads to capital gains and/or losses being applied to those assets being transferred. When a merger takes place and the assets have been transferred, the merged fund is typically wound up; however, when the merged fund comes to an end, any previous capital or revenue losses that existed at that time will be foregone. Capital losses can be used to offset present and future capital gains tax liabilities. Revenue losses can be offset against current-year income.

This bill permits the rollover of both revenue gains and losses in addition to capital gains or losses to the receiving fund. Due to the prevailing economic and financial market conditions in late 2008, a temporary taxation relief measure was passed in the form of loss relief and asset rollover to assist the superannuation industry and, through the industry, relevant fund members. However, the relief provided in that legislation was time limited to 1 October 2011. We not only supported at the time the relief that was provided but have indicated in the past that the time limited nature of that relief was going to be a problem. So we supported the tax relief for merging super funds at the time as a sensible measure to ensure that otherwise sensible mergers of superannuation funds were not prevented based on taxation considerations. The truth of the matter is that, if there are significant capital gains tax implications from a merger, then that in itself can prevent a merger from going ahead that otherwise would make sense. Any loss of revenue in that context is largely academic and theoretical because it would not otherwise be realised. If the capital gains tax implications were significant, a merger would not occur and the revenue would not be realised in any event.

This current bill is temporary, this time for mergers that occur on or after 1 October 2011 and before 2 July 2017. We are very conscious of the fact that across large parts of the sector, including, I might add, the not-for-profit industry super funds sector, a lot of people have been waiting for the parliament to deal with this legislation. I place on the record that the only person that is to blame for the delay is Minister Bill Shorten himself. No other person can be blamed for the fact that this legislation has been delayed until today. As well as having delayed it, he has put the passage of this legislation—this legislation which makes a lot of sense—at risk, by attaching to it the Superannuation Auditor Registration Imposition Bill, a bill that is clearly somewhat controversial.

Schedule 2 of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill introduces a new registration regime for auditors of self-managed superannuation funds. Currently SMSF trustees are required to appoint an approved auditor to audit the financial reports and operations of the fund annually. This bill introduces a new definition of an approved SMSF auditor. It sets out who may apply for registration and the requirements that they must meet. It sets out the necessary ongoing obligations of SMSF auditors, including needing to meet a range of continuing professional development requirements and complying with a range of competency and independence standards. It allows ASIC to create a register of approved SMSF auditors in addition to a register of disqualified SMSF auditors. It allows ASIC to charge relevant fees—here we go again—including in relation to the application to be an approved SMSF auditor and for the compulsory competency examination. It provides ASIC with the power to determine and set competency standards for all SMSF auditors. It provides powers to the ATO to monitor SMSF auditors' compliance with relevant standards and refer any non-compliant SMSF auditor to ASIC. Registration processes are to commence from 31 January 2013.

You are getting the gist—there is a whole lot of additional bureaucratic involvement on top of the already quite burdensome arrangements that are in place so far, all of it at a cost that ultimately will have to be passed on to those people who have chosen, or will choose in the future, to manage their superannuation affairs through a self-managed super fund because in their judgement this gives them more control and more options to manage their own financial affairs as they work towards retirement.

Minister Shorten's approach to the SMSF sector more generally, which is egged on by commercial interests in other parts of the industry, has been consistent all the way through. He is trying to make it harder for people to manage their superannuation affairs through self-managed super funds because he does not like people managing their affairs through self-managed super funds. He would much rather have people invest their superannuation funds perhaps with an industry super fund. As well as his bad track record when it comes to imposing additional red tape, consistent with what the Labor Party in government has done more generally, he also has a bad track record in relation to the taxation of superannuation. In the first four budgets, and in the most recent Mid-Year Economic and Fiscal Outlook, the current government has imposed more than $8 billion in new taxes on superannuation, through a range of measures, including by reducing concessional contribution caps from $50,000 and $100,000 down to $25,000 across the board, by changing the definition of income and doing a whole range of things that always looked like a bit of fiddling at the margins, but always with a significant revenue sting in the tail.

In the House of Representatives, the coalition moved amendments to excise schedule 2 from the superannuation bill. We were also opposed to the associated auditor registration bill. The coalition did this because we see the registration regime as being yet more red tape and cost to the financial sector, which is ultimately passed on to consumers and to those Australians saving to achieve self-funded retirement. Under the new regime, new registration fees are set to not exceed $1,000. However, there is no detail in the legislation, with the actual fee to be determined by regulation. We put up those amendments in the House. Sadly, they did not succeed. Given the approach and attitude that the Greens have taken in relation to this whole issue, we understand that these amendments would not succeed in the Senate either, because the Labor-Greens alliance government is a high-taxing and high-red-tape kind of a government. Consistent with that general attitude of the Labor-Greens administration, that is the approach that they have taken to this particular bill.

This is exactly the position that Minister Shorten wanted the Senate and the coalition to be in. The government wanted us to be in a position where we would feel so strongly about the importance of the capital gains tax relief provisions that we would have no choice but to ultimately roll over on the other aspects of this package of bills. And that is exactly what is going to happen. In recognition of the importance of the capital gains tax relief measures to the superannuation industry and to the people in relevant superannuation funds, we will not be insisting on those amendments again in the Senate, but we do however restate in the strongest possible terms the coalition's opposition to unnecessary red tape being imposed by this government.

At the next election, people will have the opportunity to make a choice. They can continue with this high-spending, high-taxing, big red-tape government which is taking Australia in the wrong direction by making us less competitive internationally and reducing productivity growth—or they can opt for a change of direction. They can choose a coalition government which would be serious about living within its means, which would be serious about spending less, which would be serious about taxing less and which would be serious about cutting red tape instead of adding red tape. A coalition government would deliver $1 billion worth of savings for business per annum through cutting red tape. These savings would flow through the Australian economy to consumers through lower costs and charges. As a government we would spend less, tax less, cut red tape and reduce the level of sovereign risk—which has been rising because of the constant chopping and changing by this government—by being more predictable. If we were successful in doing all that, we would grow our productivity more strongly and grow our international competitiveness instead of reducing it. In doing so, we would end up growing our economy more strongly than it otherwise would have grown. A more strongly growing economy would not only improve our prosperity as a nation, it would also lead to better superannuation returns. Guess what? That would also lead to more revenue for the government—without the need for all these new and ad hoc Labor Party and Greens taxes.

That is the choice the Australian people will have in front of them sometime next year. They can choose to continue in the current direction. That direction has included more than 26 new or increased taxes and more than 21,000 new regulations, regulations which are choking business and making the delivery of goods and services more expensive than it needs to be. That direction has seen significant new sovereign risk generated through this government's constant chopping and changing.

This government hates success and hates people who aspire to be successful. It is a government which does not like people who are doing everything they can to achieve self-funded retirement—which is the right thing to do. Surely we want to see as many Australians as possible achieve a self-funded retirement. But this is the bad direction this government has been taking Australia in—our productivity growth is slowing and our international competitiveness has been going down. Ultimately that imposes a cost on our economy and on the people of Australia. There is a better way—the coalition way. Under a coalition government, pieces of legislation such as this one, which massively increases red tape, would not be on the agenda. A coalition government would focus on cutting red tape rather than indiscriminately continuing to add to it week after week and month after month.

The coalition will not oppose this package of bills on the basis that we strongly support the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill—certainly we support the schedule 1 provisions which provide tax relief for merging superannuation funds. We are concerned about schedule 2, the self-managed superannuation funds auditor registration provisions, and the second bill. However, in the interests of providing certainty to superannuation funds that may be considering fund mergers which make sense other than for the capital gains tax implications of those mergers, we will not be opposing the package of bills. We do reserve the right in government to revisit the additional red tape the government has imposed through the self-managed superannuation provisions I have talked about.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:04): Thank you, Senator Cormann, for that ringing endorsement of Minister Shorten and his work on this very important piece of legislation. I commend the bill to the Senate.

Question agreed to.

Bills read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Pratt ) (13:05): No amendments to the bills have been circulated. Before I call the parliamentary secretary to move the third reading, does any senator wish to have a committee stage on the bills to ask further questions or clarify further issues? If not, I call the parliamentary secretary.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:05): I move:

That these bills be now read a third time.

Question agreed to.

Bills read a third time.

Senator CORMANN (Western Australia) (13:05): The Tax Laws Amendment (Clean Building Managed Investment Trust) Bill 2012 follows on from a previous bill implementing the Gillard Labor government's budget measure to double the withholding tax on managed investment trusts from 7½ per cent to 15 per cent—having only very shortly before reduced it to that level. That is yet another example of the constant chopping and changing by this government over the last few years, generating increased levels of sovereign risk.

Because of their excessive spending, the government are constantly chasing their tail, constantly casting around for more cash. Over the last four budgets, the government have spent $172 billion more than they have raised in revenue—despite more than 26 new or increased taxes and despite the fact that those four Labor budgets have benefited from Australia's best terms of trade in 140 years. Despite the best terms of trade in 140 years and despite 26 new or increased taxes, the government were not able to balance their books, they were not able to live within their means and they accumulated $172 billion worth of deficits. That is why they are constantly looking for opportunities to come up with more cash.

A lot of the government's tax measures are ad hoc and ill considered, and of course there are flow-on consequences. One of its budget measures was to double the withholding tax on managed investment trusts. Not only the coalition was concerned about this; on this occasion, quite surprisingly and quite uniquely, even the Greens were concerned about the high-taxing ways of the Labor Party. The government had a problem—Houston, we have a problem. Essentially they did not have the numbers to get their budget measure through the parliament, and so in the end they did a deal with the Greens where the Greens said, 'As long as you give us a lower tax rate for the particular category of investment and infrastructure that we are interested in'— namely, what are described as investments in environmentally efficient infrastructure—'we will go ahead with the rest of it and you can have your increased tax despite all the implications for the sovereign risk profile of Australia; we are not too worried about that—all we want is a lower tax rate for the sorts of investments that we are interested in'.

The bottom line is that we are very sceptical about the motives for this bill. The bill seeks to implement the deal that the Labor Party entered into with the Greens to facilitate passage of the Superannuation Laws Amendment (Capital Gains Tax Relief and Other Efficiency Measures) Bill, and we are very sceptical about the motives for that deal and about the effectiveness of this bill. However, given that the bill does not increase a tax for a change, given that it does introduce a tax cut even although it is for a very narrowly defined asset class, the opposition will not be opposing it. In fact, we are always supportive of tax cuts—we just think that the government should have reconsidered its approach to taxation on managed investment trusts more generally.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:09): I thank Senator Cormann for his contribution and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:10): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CORMANN (Western Australia) (13:10): The opposition is concerned that this government, based on its track record, has been very bad for Australia's productivity growth—though it is keen to maximise my productivity today. The coalition does not oppose the Tax Laws Amendment (2012 Measures No. 5) Bill 2012. Labor has, sensibly, taken our very constructive suggestions on board and amended this bill in the House of Representatives to remove the original schedules 3 and 4. The original schedule 3 introduced a new compliance regime for gaseous fuels, with yet again more red tape. The schedule regarding gaseous fuels was strongly opposed by us because it was more onerous and stricter than the current Excise Act's obligations on conventional fuel sellers and others obliged to collect excise. Consistent with Labor's approach to government administration, there was yet again a significant increase in the red tape burden, especially for small businesses handling LPG.

This government is in love with red tape, to the point where it has given us more than 21,000 new regulations over the last four or five years. I have to reflect on a commitment that the then Leader of the Opposition, Kevin Rudd, made in the lead-up to the 2007 election, which was that in government he would have a one-in, one-out red tape policy—for every new bit of red tape that came in, one bit of red tape would be taken out. We have had from this government more than 21,000 new pieces of red tape, and guess how many pieces of red tape have been removed from the statute books in that same period? Given that Mr Kevin Rudd said that the policy was that for every new piece of red tape in one would be taken out, you would assume that for the more than 21,000 new pieces of red tape that have come in we would have had about 21,000 pieces of red tape being removed. Not so—in fact, the number of regulations that have been removed from our books in that same period is fewer than 100. The government has a bit of catching up to do, and we are very pleased that on this occasion it has taken our very strong suggestion on board, which was not to proceed with schedule 3 because, quite frankly, it introduced yet again some completely unnecessary additional red tape which was going to be costly to administer for no obvious additional benefits.

Another commitment from this government was that every change to legislation would go through a proper and robust cost-benefit analysis, through a best practice regulation process, through a regulatory impact assessment, through the Office of Best Practice Regulation. Every time there is a contentious change that is likely to breach the requirement of the Office of Best Practice Regulation that there be a proper assessment of the costs and benefits, what happens? The relevant minister, like Minister Shorten, is very good at this: writing to the Prime Minister and getting himself a note that he does not have to comply. He gets himself an exemption whenever there is the risk that a particular change is obviously so burdensome that it would not pass a proper cost-benefit analysis. Of course, what this government have been doing is exempting themselves from the process that they themselves have instituted in order to ensure that this sort of stuff does not happen.

But I am getting distracted, so let us just go back to the bill at hand. The original schedule 4 clarified the rules about blending of fuels. This schedule has also been withdrawn after a discussion with the government about the increasing compliance costs involved in schedule 3.

As stated, the government has seen sense and so the coalition will not oppose the bill. The bill, as it stands, includes schedule 1, which changes the tax offset for expenditure on conservation tillage. This amendment will facilitate access to the offset. The current tax legislation requires the eligible seeder equipment to comprise a cart and tool. The definition of 'eligible no-till seeder' will be amended to ensure that an eligible no-till seeder can comprise either the tool alone or the tool and cart in combination.

Schedule 2 closes a mature-age worker tax offset. The offset is closed off for taxpayers born after 30 June 1957. This is a tax increase for this group of Australians and is a budget measure from the most recent budget. The new schedule 3 introduces a new deductible gift recipient entity. The Diamond Jubilee Trust Australia has been established to raise funds for the commemoration of Her Majesty Queen Elizabeth II's Diamond Jubilee. The new schedule 4 tightens the wine equalisation tax producer rebate. It closes a loophole that allows for double dipping of the rebate by some producers, and this change is actually supported—and I have to put this on the record—by the Winemakers' Federation of Australia.

So schedules 1, 3 and 4 as they currently appear in the bill are supported. Whilst we would not have undertaken the changes in schedule 2, it is a budget measure that will not be opposed; and, as such, the coalition will not oppose the bill.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:16): I thank Senator Cormann for his support for this legislation, and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Pratt ) (13:17): As no amendments to the bill have been circulated, I call the parliamentary secretary to move the third reading unless the Senate requires that the bill be considered in committee.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:17): I move:

That this bill be read a third time.

Question agreed to.

Bill read a third time.

Senator CORMANN (Western Australia) (13:17): I am back! The coalition will support the Corporations Legislation Amendment (Derivative Transactions) Bill 2012. This bill provides the legislative framework to meet Australia's G20 obligations in relation to over-the-counter derivative reforms.

The bill amends five existing pieces of legislation: the APRA Act 1988, the ASIC Act 2001, the Corporations Act 2001, the Mutual Assistance in Business Regulation Act 1992 and the Reserve Bank Act 1959. This bill is a key step in Australia meeting its G20 obligations regarding the transparency of over-the-counter derivative markets. The bill does not impose, in our view, onerous regulation; rather, it provides powers to the regulatory bodies to examine over-the-counter markets and to recommend actions to the minister to increase transparency in market mechanisms should they deem that to be necessary.

The goal is to enhance the integrity and safety of the derivatives markets in particular and the financial system as a whole. The coalition is pleased that this bill was amended in the House so that, for matters relating to the energy sector, the Minister for Resources and Energy has to be consulted prior to the making of regulations, the mandating of derivatives or consenting to an ASIC rule. In doing so, the government heeded the recommendation of the Joint Committee on Corporations and Financial Services' inquiry into this bill, which recognised the real and genuine concerns of the electricity sector in that regard.

With those few words, the coalition will support this bill.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:19): I am pleased that Senator Cormann again spoke—even more briefly than on previous occasions! I commend this bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Pratt ) (13:19): As no amendments to the bill have been circulated, I call the parliamentary secretary to move the third reading unless the Senate requires that the bill be considered in committee.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:20): I move:

That this bill be read a third time.

Question agreed to.

Bill read a third time.

Senator CORMANN (Western Australia) (13:20): The Personal Liability for Corporate Fault Reform Bill 2012 is part of the process to introduce sensible reforms to the laws imposing liability on a director for acts or omissions of their companies. We do not oppose this bill; it was Peter Costello, of course, who began the hard work to introduce reforms to this area of overregulation. It was a coalition government that tried to bring some sensible reform to this area of Commonwealth law.

The Corporations and Markets Advisory Committee reported to the then Treasurer in September 2006. That committee recommended a principled and consistent approach to personal liability across the various jurisdictions. This was taken up by COAG and is reflected in this bill.

The reform aims to harmonise the imposition of personal criminal liability for corporate fault across Australian jurisdictions; to remove regulatory burdens on directors and corporate officers that cannot be justified on public policy grounds, and there should be more of that; and to minimise inconsistencies between Australian jurisdictions.

Given that the changes have been agreed through a COAG process and are supported by stakeholders as an improvement to the status quo, the coalition do not oppose this bill. We do believe that more work needs to be done in relation to laws which reverse the onus of proof and/or impose strict liability, but that might be a debate for another day.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:21): I thank Senator Cormann for his contribution to this debate and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Pratt ) (13:22): No amendments to the bill have been circulated. Before I call the parliamentary secretary to move the third reading, does any senator wish to have a committee stage on the bill to ask further questions or clarify further issues? If not, I call the parliamentary secretary.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:22): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CORMANN (Western Australia) (13:23): As I have told you, the government really wanted me to work hard today to make up for lost time! The Superannuation Legislation Amendment (New Zealand Arrangement) Bill 2012 enacts the trans-Tasman retirement savings portability agreed between the governments of Australia and New Zealand in 2009. The bill provides for the continuation of market integration between Australia and New Zealand by allowing retirement savings to be transferred between APRA-regulated superannuation funds and KiwiSaver accounts. The coalition of course strongly support closer economic ties with our friends and neighbours in New Zealand, and, as such, we support this bill.

We are a little disappointed that the government did not seek to extend the provisions in the deal and in this legislation to those Australians with self-managed superannuation, but I refer back to my comments there on a previous bill. This is clearly a government that does not have much time for those Australians who, every day, work very hard to make sure that they save to achieve a self-funded retirement. That has been consistent across many of the government's actions, where they really have been targeting those Australians that perhaps they perceive to be too successful rather than encouraging that sort of success and that sort of approach to retirement savings.

But, coming back to the bill at hand, the arrangement on trans-Tasman retirement savings portability was signed with New Zealand on 16 July 2009. While New Zealand have acted promptly on the agreement—they clearly have a very good government over there—and their legislation received assent on 7 September 2010, it has taken the Gillard Labor government two years to bring a relatively simple bill before this parliament. Labor seem unable to progress even non-controversial bills in a timely fashion.

The exclusion of self-managed superannuation funds from the agreement does concern us. However, given the agreement in this form was signed by New Zealand, we will support the legislation. A future coalition government will consider an expansion of the agreement at a future time to include self-managed superannuation funds, in consultation with our friends in New Zealand.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:25): Once again I thank Senator Cormann for his contribution and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Pratt ) (13:26): No amendments to the bill have been circulated. Before I call the parliamentary secretary to move the third reading, does any senator wish to have a committee stage on the bill to ask further questions or clarify further issues? If not, I call the parliamentary secretary.

Senator FARRELL (South Australia—Parliamentary Secretary for Sustainability and Urban Water) (13:22): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (13:26): I am delighted to rise to speak in this debate because, among other things, both this bill, the Freedom of Information (Parliamentary Budget Office) Bill 2012, and the next bill, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, are bills that arise from either initiatives of the opposition or, in the case of the latter, initiatives jointly developed in a bipartisan spirit by the government and the opposition.

As I and my colleagues have pointed out many times before, this opposition is a very policy-creative opposition. We are constantly putting new ideas on the table and we are delighted when the Labor government sees the wisdom of adopting our ideas. One of the ideas which the opposition initiated and which the government has seen the wisdom of adopting is the introduction of a parliamentary budget office, which was effected some while ago. This bill is consequential upon that initiative.

The Parliamentary Budget Office commenced operation in July. Its functions are to prepare election policy costings at the request of authorised party representatives and Independent members of parliament, and to prepare policy costings outside the caretaker period at the request of individual senators and members. In addition, it will initiate its own work program in anticipation of client requests and provide formal contributions on request to relevant parliamentary committee inquiries.

The PBO is an exempt agency under the FOI Act so that its services can be provided on a confidential basis. However, there is no specific exemption of documents related to PBO requests that may be held by departments and other agencies, which may therefore not be protected against release under the FOI Act. The purpose of this bill is to amend the FOI Act to provide an exemption for information held by departments and agencies that relates to a confidential request to the Parliamentary Budget Office. It also provides that an agency is not required to give information as to the existence or nonexistence of a document where it is exempted under the new provisions.

There has been much discussion in recent months about the coalition's use of the Parliamentary Budget Office for the costing of policies. In all the public debate so far, it seems to have been overlooked that, as I said at the beginning of this contribution, the idea of a parliamentary budget office was an idea that had its genesis in the coalition.

In May 2009, the then Leader of the Opposition, the Hon. Malcolm Turnbull, first called for the establishment of the Parliamentary Budget Office, modelled on the US Congressional Budget Office. That measure was initially opposed by the Labor government. In June 2010, the current Leader of the Opposition, the Hon. Tony Abbott, renewed the opposition's call for the creation of a parliamentary budget office. A private senator's bill to create the Parliamentary Budget Office was introduced into this chamber by former Senator Guy Barnett in June 2010. On 24 June 2010, the Senate referred the establishment of the Parliamentary Budget Office to the Senate Finance and Public Administration Committee for inquiry and report. The review was interrupted by the calling of the election a few days later. Subsequently, the establishment of a parliamentary budget office became a coalition election commitment.

After the election, the initiative was embodied in the agreement between the government and the Independents, the government having seen the wisdom—after having resisted for so long in the previous parliament—of the opposition's initiative. The agreement between the government and the Greens of 1 September 2010 committed the government to establishing the Parliamentary Budget Office within 12 months. And the irony will not have escaped you, Madam Acting Deputy President Pratt, that, although the Parliamentary Budget Office was created as a result of an agreement between the Australian Labor Party and the Greens, the one political party in this country which was not a party to the agreement—that is, the coalition parties; the Liberal Party, in particular—was the party from which the idea originally arose.

The government dragged the chain on introducing the enabling legislation to the parliament. So the shadow Treasurer, Mr Hockey, took the initiative and introduced his own private member's bill in August 2011—the government having failed to honour its commitment to the Independents in this, as in other, respects. That forced the government to the table with its own legislation two days later. The government sought to negate Mr Hockey's bill by bringing in its own bill to the second reading vote first. The government's bill is, in many respects, inferior to the coalition's proposal, so the coalition proposed a large number of amendments to improve the operation of the PBO and to strengthen its powers. In the end, the government's unamended bill passed the parliament.

Let me pause to reflect on that and summarise the sequence of events. An initiative announced as long ago as May 2009, in a previous parliament, by the previous Leader of the Opposition was resisted throughout the previous parliament by the government. Because of the unusual circumstance of a hung parliament, and for no other reason, the Labor Party then committed to create a parliamentary budget office. Had there not been a hung parliament, there is no possibility that the Labor Party would have gone along with it. The Labor Party then dishonoured that commitment by refusing to introduce the legislation that it had promised to introduce and only did so when forced by an initiative of Mr Hockey in 2011 to do so—and then it sought to introduce a proposal significantly inferior to the coalition's proposal and fought every step of the way against amendments which would have improved the operation of the Parliamentary Budget Office. We can see from that sequence of events the depth and sincerity of the Labor Party's commitment to this beneficial measure!

Nevertheless, the Parliamentary Budget Office is now in the process of becoming operational. A key consideration has been to ensure that processes and protections are in place to ensure that requests to the Parliamentary Budget Office made prior to the issuing of the writs for an election can be kept confidential.

The PBO identified three steps which are required to ensure that it is a locked box. The first was to issue government protocols concerning the engagement between Commonwealth bodies and the Parliamentary Budget Officer. Those protocols are now government policy. Among other things, they outline the responsibilities of the heads of Commonwealth bodies and of their staff in engaging with the office and establish procedures to ensure the consistency and confidentiality of information provided to and by the PBO. The second step was to issue a memorandum of understanding between the Parliamentary Budget Officer and the heads of Commonwealth bodies in relation to the provision of information and documents. The MOU provides for the open exchange of information and outlines the roles and responsibilities of each party. The third step was the legislation which is now under discussion, the Freedom of Information Amendment (Parliamentary Budget Office) Bill. As I said before, this bill will exempt all material provided to the PBO from freedom-of-information laws.

We in the opposition of course take a more expansive view of freedom-of-information laws than the government; nevertheless, we are persuaded that, in certain circumstances, the protection of confidentiality in a process such as this is a more important policy consideration than freedom of information. The Parliamentary Budget Officer's work could not be carried out effectively if its clients did not enjoy a degree of confidentiality. So, for that reason, we agree with the government that this is a necessary measure. Once the bill is passed, the coalition will finally have confidence that the confidentiality of any policy submitted to the Parliamentary Budget Office for costing, up until the signing of the writs for a general election, will be fully preserved.

It pleases me to speak on behalf of the coalition in supporting the last legislative step in a legislative scheme first proposed, as I said before, by the opposition as long ago as May 2009 and resisted by this government every step of the way.

Senator CONROY (Victoria—Minister for Broadband, Communications and the Digital Economy, Deputy Leader of the Government in the Senate and Minister Assisting the Prime Minister on Digital Productivity) (13:36): I table a replacement explanatory memorandum relating to the Freedom of Information Amendment (Parliamentary Budget Office) Bill 2012.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Pratt ) (13:37): As no amendments to the bill have been circulated, I call the minister to move the third reading unless any senator requires that the bill be considered in committee.

Senator CONROY (Victoria—Minister for Broadband, Communications and the Digital Economy, Deputy Leader of the Government in the Senate and Minister Assisting the Prime Minister on Digital Productivity) (13:37): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (13:37): As I said at the beginning of the debate on the previous bill, this is another initiative adopted by the government in collaboration with the opposition, whereas the previous bill was in fact an opposition initiative.

This bill, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, is fairly characterised as a joint initiative of the government and the opposition. It had its genesis in work that the former member for Denison, Mr Duncan Kerr—now Mr Justice Kerr of the Federal Court of Australia—undertook during the last parliament. I think it is appropriate to put on the public record that Mr Kerr approached me as the opposition spokesman and suggested that together we propose a series of measures that would deal with an evident gap, or lacuna, in the Constitution—that is, the failure of the Constitution to provide a mechanism for applying the test of fitness in a case of judicial misbehaviour. Mr Kerr and I worked on this proposal, and I should say in respect of Mr Kerr—or His Honour, Justice Kerr, as he now is—that the initiative and the work primarily came from him; but it was a collaborative process, as he has been good enough to acknowledge on many occasions.

At present, the only legislative provision dealing with judicial complaints is that to be found in section 72 of the Constitution, which provides that justices of the High Court 'shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity'.

As I said a moment ago, section 72 provides no mechanism for an inquiry as to how misbehaviour or incapacity is to be proved. Until this bill, there was no statutory structure to fill that gap. Section 72, I am pleased to say, has only been invoked once in the 111 years of Commonwealth history. I think it is a great tribute to the integrity of our judiciary that only once in more than a century have there been issues concerning the integrity of a federal judicial officer that were so serious that the provisions of section 72 were invoked. The one exception, I am sorry to say, is in relation to a former member of this Senate, the late Lionel Murphy, who died before the processes could be concluded.

As I said earlier, the bill was developed as a result of a joint initiative by Mr Kerr and me, in consultation with the chief justices of the Federal Court and the Family Court, and with the Chief Federal Magistrate. At present, informal processes exist in each of the courts for handling complaints about judicial officers and are exercised by the chief justices and the Chief Federal Magistrate, but those processes are informal and have no statutory or official basis. With the increasing size of the courts—indeed, there are now more than 100 federal judges and 62 federal magistrates—there is a perceived need to have in place a statutory structure for dealing with complaints to ensure that participants in the processes are immune from suit.

The bill also proposes that documents arising in the consideration and handling of a complaint against a judicial officer should be exempt from the operation of the Freedom of Information Act. The complaints to be dealt with under the amendments proposed by the bill—in addition to 'proved misbehaviour or incapacity', in the words of section 72 of the Constitution—concern those about the performance by a judge of his or her judicial or official duties. They do not concern complaints about matters in cases that are capable of being raised on appeal.

The framework itself for the handling of complaints is non-statutory, to provide for the appropriate level of flexibility. Less serious matters may be dealt with by discussion, while more serious matters may call for the establishment of a conduct committee, which may comprise non-judicial members, and possible reference to the Attorney-General. Very serious matters would be referred directly to the Attorney-General for consideration under section 72 of the Constitution and the procedure proposed to be established under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. For matters not warranting removal procedures, the Chief Justice may take any measures reasonably necessary, including temporarily restricting a judge to non-sitting duties.

As I said at the beginning of my remarks, this bill initially had its genesis in an initiative of the Hon. Duncan Kerr, in the previous parliament. It provides a standard mechanism to assist the parliament in its consideration of the removal of a judge or magistrate from office under the Constitution. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 establishes a parliamentary commission by resolution of each house to investigate specified allegations of misbehaviour or incapacity of a specified Commonwealth judicial officer.

The commission would consist of three members appointed on the nomination of the Prime Minister after consultation with the Leader of the Opposition. At least one member of the commission will be required to be a former Commonwealth judicial officer or a former judge of the supreme court of a state or territory. Serving Commonwealth judicial officers are ineligible for appointment. The commission may engage counsel, staff and consultants. The role of the commission would be to inquire into allegations and gather information and evidence to present to parliament. It would conduct its investigations in an inquisitorial rather than an adversarial manner. It would have the power to require witnesses to appear at a hearing, take evidence on oath, conduct hearings in private, require the production of documents or other items, and issue search warrants. It would then provide a report to parliament through each of the parliamentary Presiding Officers.

The bill does not provide for a standard of proof that the commission would consider needed to be met before reporting to parliament. Section 72 of the Constitution leaves it to parliament to decide for itself what it considers to be 'proved misbehaviour or incapacity', and the view that Mr Kerr and I took after consultations was that the interpretation of that phrase should be left to parliament alone, the purpose of the judicial commission being essentially a fact-finding one. Serving and former Commonwealth judicial officers would be exempted from the application of the commission's coercive powers in order to preserve judicial independence. The Commonwealth would be liable for the reasonable costs of legal representation of a judicial officer under investigation.

The bills were referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 2 August. Several amendments were proposed, principally the amendment excluding serving state and territory judges from membership of the commission and an amendment to require greater security in record keeping—quite a lively topic in another context at the moment, where Federal Court files have mysteriously gone missing. The relevant amendments were made in the other place.

These bills provide for formal processes for procedures that currently would likely be conducted in a similar way, albeit without any explicit statutory framework or guidance. Establishing a framework for the parliament to act on the question reserved for its consideration by section 72 of the Constitution will assist in promoting a transparent and effective complaints-handling mechanism and, as I said before, in filling the gap which section 72 of the Constitution leaves open.

In closing, I want to thank the Hon. Duncan Kerr for the intelligent and collegial manner in which he approached this important issue and the spirit of cooperation and friendship he showed towards me in developing these proposals with the opposition.

Senator HUMPHRIES (Australian Capital Territory) (13:47): I want to make a few brief remarks about the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012 as well. I served on the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the legislation, and a variety of views were advanced at that time to the committee about various aspects of these bills which I think are worth reflecting on. It is important to make clear that this legislation is an attempt to fill an important gap, as Senator Brandis said, in the current process needed to deal with the removal from office of a judge appointed under a federal jurisdiction. That gap is largely filled by these bills but not, in a sense, entirely filled. There are issues which this legislation does not deal with and which, in a sense, are deliberately left unaddressed by this process because, at the end of the day, this process is one that is resolved by the decision of the parliament. It is the parliament—that is, the two houses jointly agreeing on the removal of a judge—that ultimately resolves this process. The processes of parliament are matters for each parliament as it comes along, and it is important that we acknowledge that some parliaments may take different views from those of other parliaments about these matters.

The case of Justice Lionel Murphy was one which gave rise to very considerable concerns about the process used by the parliament. There were two parliamentary commissions that that process gave rise to, and it was the subject of great political debate at the time. These bills provide an avenue for those processes to be at least partially depoliticised and for the process to be laid out in advance, but we should not imagine that the passage of these bills prevents a different process being used in particular cases.

The legislation does not define what 'misbehaviour or incapacity', in the terms of section 72 of the Constitution, actually means. That was an issue, of course, which very much concerned the parliamentary processes and the committees that the parliament appointed in respect of Justice Murphy, and those issues are not resolved here, for good constitutional reasons: those matters are matters of interpretation, they are used in the Constitution and clearly one parliament cannot define what those words mean. It is always open to the courts themselves to determine what those words might mean. It is also, as Senator Brandis pointed out, unclear what standard of proof should be applied in addressing the question of a judge's putative misbehaviour or incapacity: should it be the civil or the criminal standard?

But I think it is important to remind the Senate today that it is essential to have a process to address these issues, because one of the cornerstones of Australian democracy is that we have a separation of powers. It is important that there be some definition around the process that the parliament uses to decide when, how and whether to remove a judge from office. It is important that this process be above reproach to the extent it possibly can be and that Australians therefore have confidence that, should the Australian parliament take the decision to remove a federal judge or perhaps a federal magistrate from office, this will be done on the basis that that person is genuinely incapacitated or has clearly misbehaved in a way which is difficult to dispute.

I reaffirm to the Senate the concerns Senator Boyce and I raised in additional comments to the Senate committee report about the exclusion of serving judges from membership of the commissions, and I direct senators to those comments.

Another matter I wanted to touch on briefly is the question of the application of the judicial complaints bill to the High Court. As I understand the terms of this legislation, it sets out the process whereby a head of jurisdiction is able to establish a conduct committee to investigate complaints received by them in relation to a judge who is a member of the particular court of which that head of jurisdiction is the leader. That process then determines what kind of assessment is made before the parliamentary process kicks in with respect to the assessment of the misbehaviour or incapacity of a particular member of the judiciary.

A conduct committee established under the judicial complaints bill is made up of two judicial members and one non-judicial member. The judicial members would generally be of equal or greater seniority than the judicial officer being investigated. I welcome very much here the concept that, although it is judges judging other judges, there is a non-judicial member of this conduct committee so that a sense of community values is introduced into the debate about whether the person should be removed.

The bill requires the conduct committee to ultimately report to the head of jurisdiction, recommending whether the complaint should be dismissed, whether it warrants consideration by the parliament and possible removal from office through that process, and whether the head of jurisdiction should deal with the matter under their powers of management of the court in some less drastic way. I think that is all very sensible. If allows the court, to some extent, to self-regulate but it does not remove the capacity of the parliament to consider a matter where it feels that a person may warrant removal from their office.

The process, however, does not apply to the High Court of Australia. There are good constitutional reasons why an act of this parliament should not constrain the conduct of the High Court with respect to the removal of judges and their own processes of consideration prior to parliamentary consideration of that question. But it does seem to me to be open to the government to take the matter up with the High Court as a matter of negotiation. As is the case with the parliament, it would be up to the court to decide what it might do in circumstances where it came to the attention, for example, of the Chief Justice that a member of his or her court had engaged in behaviour which would call into question the capacity of that person to continue to serve in that role. I suppose it is open to the High Court to decide what process it might use in those circumstances.

The point of this legislation is to set in place mechanisms for dealing with these issues well before the point at which an actual case of alleged incapacity or misbehaviour arises. The point is to establish a process that is above reproach and that allows the court to address that issue pre-emptively, in a way that does not derogate from the capacity of the parliament to take steps to remove a person considered to be incapacitated or to have misbehaved, but still allows a measure of self-regulation by the court. Although, quite rightly, this should not be a matter for this parliament to regulate, I respectfully suggest it is still a matter that the High Court could and should consider in terms of pre-emptively setting up a process that might be used. If I may use this platform, I respectfully suggest to the government that it address that question with the High Court for the same reasons it has bought forward this legislation to deal with this issue in the lower courts.

It is clear that these mechanisms will be invoked only on rare occasions. We should all be thankful for the fact that, as Senator Brandis pointed out, it is extremely rare that officers appointed to serve on our federal courts have displayed behaviour which brings their conduct into question and that these sorts of provisions are only very occasionally considered by the parliament. It is important for us not to allow the process to be sullied by the day-to-day circumstances of a particular judge's alleged misbehaviour or incapacity. It is important to set out benchmarks at the earliest possible stage to ensure that these processes are dealt with in an effective way well before the point at which a particular instance might give rise to them.

I want to commend both Justice Kerr and Senator Brandis for the hard work that obviously went into developing an effective process here. I hope that the fruit of their work never needs to be used by the parliament, but I am grateful for the fact that, with this legislation passed, there will be a mechanism in place to deal with those circumstances if they do arise. The mechanism is a robust one which I think is likely to serve the parliament well.

There is further work to be done in connection with particular courts, and I hope that the parliament will be apprised of that work as that legislation comes forward. I commend these bills to the Senate as worthwhile developments.

Question agreed to.

Bill read a second time.

The PRESIDENT (13:59): As no amendments to the bills have been circulated, I call on the minister to move the third reading, unless any senator requires that the bills be considered in the committee as a whole.

Senator CONROY (Victoria—Minister for Broadband, Communications and the Digital Economy, Deputy Leader of the Government in the Senate and Minister Assisting the Prime Minister on Digital Productivity) (14:00): I move:

That these bills be now read a third time.

Question agreed to.

Bills read a third time.

Senator WONG (South Australia—Minister for Finance and Deregulation) (15:35): I present two government responses to committee reports as listed at item 13 of today’s Order of Business. In accordance with the usual practice, I seek leave to have the documents incorporated into Hansard.

Leave granted.

The documents read as follows—

Commonwealth Government response to Environment and Communications References Committee report

The capacity of communication networks and emergency warning systems to deal with emergencies and natural disasters

November 2012

INTRODUCTION

The Senate Environment and Communications References Committee tabled its report, The capacity of communication networks and emergency warning systems to deal with emergencies and natural disasters on 23 November 2011. The report contains six recommendations. The Commonwealth Government response to each of the recommendations made by the Senate References Committee, are provided below.

While the Commonwealth has a national coordination role, primary responsibility for the protection of life, property and the environment rests with the states and territories, who are the first responders to emergencies in their jurisdictions. Therefore, state and territory emergency management agencies have full autonomy in relation to: (i) whether and when to issue an emergency warning, (ii) which delivery mechanisms to use to disseminate the emergency warning, and (iii) the content of the warning. Individual states and territories choose which warning technologies to adopt and when to activate them in accordance with the specific circumstances of an incident.

All states and territories have disaster or emergency plans that include a communications component for the dissemination of rapid onset emergency warnings to the community. At the Commonwealth level, the Bureau of Meteorology (the Bureau) issues warnings and watch notices via the broadcast media, HF Radio and Fax, recorded telephone and the internet, directly to the public for weather warnings (such as severe thunderstorm, high sea, flood and tropical cyclone warnings) and, in conjunction with Geoscience Australia, also issues tsunami warnings. Warnings issued by these agencies also inform the warning messages that state and territory control agencies disseminate to the public.

The states and territories are also responsible for the communications systems within their jurisdiction. The Commonwealth’s role is to support public safety operations by, inter alia, making adequate provision of spectrum for use by agencies involved in the defence or national security of Australia, law enforcement, or the provision of emergency services, including for use by other public or community services.

RESPONSE TO RECOMMENDATIONS

Recommendation 1

2.11 The committee recommends that interoperability of narrowband voice radiocommunications between federal, state and territory emergency service organisations is achieved as soon as practicable and that all services attending major incidents be compelled to maintain a common emergency communications platform to ensure seamless real time communication from and to the Incident Controller.

Commonwealth Position: Supported

The Government supports this recommendation, noting all jurisdictions are moving towards mobile radio networks that support real time and seamless communications.

The Attorney-General’s Department (AGD) through its membership on the National Coordinating Committee for Government Radiocommunications (NCCGR) is working with the states and territories to achieve improved narrowband voice communications interoperability within the indicative time frame set out in the Council of Australian Governments (COAG) endorsed framework. This work includes achieving consensus amongst all jurisdictions on technologies and Standard Operating Protocols that will assist with moving towards fully interoperable radio networks and operating procedures. The Government understands that the COAG endorsed framework does not prescribe a single technology for jurisdictions (and agencies within them); rather that each jurisdiction as part of their current and future procurement cycles considers technologies that will enable voice communications interoperability with other Emergency Service Organisations (ESOs) throughout Australia. Accordingly, relevant Commonwealth agencies are in the process of planning to transition their voice communications to systems that will be interoperable with state and territory ESOs operating within spectrum harmonised for government use in the 400 MHz band.

Recommendation 2

2.50 The committee recommends the Commonwealth Government allocate sufficient spectrum for dedicated broadband public protection and disaster relief (PPDR) radiocommunications in Australia.

2.51 The committee further recommends that any allocation of broadband spectrum to emergency service organisations (ESOs) for PPDR must be provided on the basis of interoperability amongst Australian ESOs and with ESO counterparts overseas.

Commonwealth Position: Noted

The Radiocommunications Act 1992 states that the object of the Act is to provide for management of the radiofrequency spectrum in order to:

(a) maximise, by ensuring the efficient allocation and use of the spectrum, the overall public benefit derived from using the radiofrequency spectrum;

(b) make adequate provision of the spectrum:

   (i) for use by agencies involved in the defence or national security of Australia, law enforcement or the provision of emergency services; and

   (ii) for use by other public or community services;

(c) provide a responsive and flexible approach to meeting the needs of users of the spectrum;

(d) encourage the use of efficient radiocommunication technologies so that a wide range of services of an adequate quality can be provided;

(e) provide an efficient, equitable and transparent system of charging for the use of spectrum, taking account of the value of both commercial and non-commercial use of spectrum;

(f) support the communications policy objectives of the Commonwealth Government;

(g) provide a regulatory environment that maximises opportunities for the Australian communications industry in domestic and international markets;

(h) promote Australia’s interests concerning international agreements, treaties and conventions relating to radiocommunications or the radiofrequency spectrum.

The then Commonwealth Attorney-General, the Hon Robert McClelland MP, and the Minister for Broadband, Communications and the Digital Economy, Senator the Hon Stephen Conroy,

co-chaired a roundtable meeting on 10 May 2011 on the matter of public safety mobile broadband. The key outcome of that meeting was the establishment of a multijurisdictional high-level officials’ Public Safety Mobile Broadband Steering Committee to progress this work, led nationally by the Commonwealth Attorney-General’s Department and the Department of Broadband, Communications and the Digital Economy.

Membership of the Committee includes representatives of the following key national stakeholder groups, committees and agencies:

the COAG Senior Officials Group

the National Policing Senior Officers Group

the National Counter-Terrorism Committee

the Australia New Zealand Police Advisory Agency

the Australasian Fire and Emergency Service Authorities Council

the Council of Ambulance Authorities

the National Coordinating Committee for Government Radiocommunications

the Law Enforcement and Security Radio Spectrum Committee, and

the Australian Communications and Media Authority (ACMA).

The Committee has analysed public safety mobile communications needs, developed models to meet those needs and collected information to assist the ACMA in its determination of spectrum requirements.

The Commonwealth has worked with the states and territories to develop a national implementation plan for a nationally interoperable public safety mobile broadband capability. In parallel with this activity, the Commonwealth has considered whether radio spectrum should be allocated and, if so, what the quantum of a possible allocation would be.

The Commonwealth announced on 29 October 2012 that it would make provision for 10 MHz from the 800 MHz band for the specific purpose of realising a dedicated, nationally interoperable public safety mobile broadband cellular 4G data capability.

The offer of the spectrum to the states and territories will be at a Public Interest Price and is conditional on factors including:

the capability being nationally interoperable

the states and territories funding all costs associated with designing, building, equipping, maintaining and operating the capability, and

an agreement to provide reasonable access to state and territory networks by relevant Commonwealth agencies.

In terms of interoperability with counterparts overseas, this will be guided by the domestic approaches that those countries take as well as future outcomes of key fora such as regional radio harmonisation in region 3 (the Asia-Pacific region in which Australia sits).

Recommendation 3

3.63 The committee recommends that the Commonwealth Government together with national, state and territory emergency service organisations and radio and television broadcasters, develop a secure database of up-to-date contact details for key personnel to be used during an emergency.

Commonwealth Position: Noted

The Commonwealth, state and territory agencies and the ESOs all have media services and dedicated databases in place that perform this role.

The Australian Government will work with the states and territories, through the Australia-New Zealand Emergency Management Committee (ANZEMC) (formerly the National Emergency Management Committee), to effectively coordinate the maintenance of appropriate contact details in both emergency service and media organisations for use during an emergency.

Recommendation 4

3.69 The committee recommends the Commonwealth Government require guaranteed access to emergency call services for people with a disability at all times.

Commonwealth Position: Noted

The Government is a member of the National Forum on Emergency Warnings to the Community which has recently completed drafting the document, ‘Inclusive Communications Guidelines for Emergency Managers’. These guidelines, when finalised, will be used as a tool to help emergency managers understand the requirements to assist people with disabilities during emergencies. They are intended to be used in conjunction with each state and territory’s own policies and procedures.

The Government is aware that people who are deaf, hearing and/or speech impaired often have limited access to emergency services outside of the home as a result of not being able to access a teletypewriter to call the National Relay Service (NRS) dedicated emergency number 106. In response to this need, the Government included mobile access to text-based emergency services for people who are deaf, hearing impaired and/or speech impaired in the new NRS tender. On 15 August, the Telecommunications Universal Service Management Agency (TUSMA) issued a request for tender to identify and select a company(s) to provide the NRS for the next five years. The tender has now closed and a public announcement is expected in early 2013.

On 12-13 January 2011, the NRS experienced interruption for nearly 24 hours as a result of severe flooding in Brisbane where the NRS call centre is based. However, it should be noted that this interruption did not affect access to the 106 emergency number. Since that time, the Australian Communications and Media Authority (ACMA) has been working with the NRS service provider, Australian Communication Exchange (ACE), on lessons learnt and opportunities to better mitigate disruptions in the event of similar emergency situations. This has resulted in a number of new initiatives, including new redundancy strategies and software improvements, to better prioritise certain types of calls.

Recommendation 5

3.81 The committee recommends emergency service organisations in collaboration with television and radio broadcasters, the print media and other relevant organisations, use regular and ongoing public education well in advance of an emergency situation as an opportunity to teach the public about their responsibilities during an emergency and how they can appropriately prepare themselves for such an event.

Commonwealth Position: Noted

The Commonwealth notes this recommendation is directed at emergency service organisations, radio broadcasters, the print media and other relevant organisations. However, in a broader context, the Commonwealth and all state and territory governments are implementing the COAG National Strategy for Disaster Resilience 2011 (the Strategy).

The Strategy focuses on building disaster resilient communities across Australia, including educating people about risks and that disaster resilience is a shared responsibility. Aligned to this Strategy, the Commonwealth delivers education programs including:

School education resources and teaching aids including: the online ‘Dingo Creek’ interactive disaster preparedness and recovery game and related teaching material, the online ‘Digital Stories’ series where students who have been involved in disasters record their stories, recently released ‘DisasterMapper’, an online and Google Map based product to allow students to investigate disasters relevant to them or to their studies, and soon to be released ‘Before the Storm’ phone application (app), a teaching resource aimed at improving preparedness

Ensuring disaster resilience is considered in the current national curriculum review for Australia

Producing source materials for vulnerable communities including those of a non-English speaking background, such as the recent Pictorial Storyboards, and

Providing all these materials, together with a range of publication and brochure prototypes, available online at the national emergency website www.em.gov.au.

The recently released DisasterWatch phone app provides access to emergency and disaster information in a mobile device format derived from authoritative sources in the states and territories and agencies. The app also provides public educational information, such as how to prepare for various hazard events. More than 11,000 downloads of the app have occurred since its launch in December 2011.

Recommendation 6

4.33 The committee recommends the government consider granting public broadcasters priority access to fuel during times of emergency for the purpose of broadcasting emergency warnings and information, and in a way that does not impede the ability of emergency service organisations to access fuel.

Commonwealth Position: Noted

Australia’s state and territory governments have constitutional responsibility for planning and coordinating the response to fuel shortages within their territorial boundaries and have appropriate legislation and associated response plans in place to manage such emergencies.

Whilst every jurisdiction has legislation in place to address a liquid fuel supply emergency, not every emergency will trigger the use of that legislation. Many emergencies that include localised fuel distribution issues, but which do not include an overall fuel supply problem for the jurisdiction, are managed under general emergency response legislation rather than liquid fuel specific legislation.

As such, during an emergency within a particular jurisdiction, determinations about access to fuels, including for public broadcasters, will be a decision for the relevant state or territory government.

At a national level, the Liquid Fuel Emergency Act 1984 (LFE Act) grants the Commonwealth Minister for Resources and Energy the power, by legislative instrument, to identify a person or organisation as an essential user of fuel for the purpose of a national liquid fuel emergency. Declaration of a national liquid fuel emergency under the LFE Act remains a low probability event, as it would require a severe (i.e. prolonged and widespread) national shortage of fuel.

Government Response to the Senate Legal and Constitutional Affairs Legislation Committee Report on the:

Privacy Amendment (Enhancing Privacy Protection) Bill 2012

November 2012

Australian Government response to recommendations of Senate Legal and Constitutional Affairs Legislation Committee report on the Privacy Amendment (Enhancing Privacy Protection) Bill 2012

Summary table of Government response to recommendations

The following tables summarise the Government’s response to the recommendations from the Committee’s report.

Of the Committee’s twenty one recommendations:

•   10 have been accepted in full;

•   10 have been accepted in principle; and

•   1 has been noted.

COMMITTEE RECOMMENDATIONS

Recommendation 1

The committee recommends that the application of the exception in proposed APP 2.2(b) be clarified to make it clear that APP 2.1 does not apply where it is impracticable for the APP entity to deal with ‘individuals who have not identified themselves or used a pseudonym’.

Response: Accept

The Government notes the committee’s view that a clarification to the provision would be helpful to ensure that it is clear that Australian Privacy Principle (APP) 2.1 does not apply where it is impracticable for the APP entity to deal with individuals who are seeking to use a pseudonym. The Government will develop appropriate amendments to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (the Bill).

Recommendation 2

The committee recommends that to avoid confusion, the subheading to proposed APP 7.1 in item 104 of Schedule 1 of the Bill be amended to read 'Use or disclosure' or 'Direct marketing', rather than 'Prohibition on direct marketing'.

Response: Accept

The Government acknowledges that amending the subheading of this section may be helpful in more accurately reflecting the substance of the provisions. The Government will develop appropriate amendments to the Bill.

Recommendation 3

The committee recommends that proposed APP 7.2 and APP 7.6 in item 104 of Schedule 1 of the Bill be amended to ensure consistency with the notification requirement in APP 7.3, and enable individuals the opportunity to opt out of direct marketing communications at any time.

Response: Accept in principle

The Government agrees that consumers should be able to opt out of direct marketing involving the use or disclosure of their personal information at any time. That is the practical effect of APPs 7.2, 7.3 and 7.6 although the point at which they are made aware of the opt-out requirements may differ depending on the relationship between the direct marketer and the consumer.

The Government notes that companies engaged in direct marketing under APP 7.3 will be required to give notice about an opt out mechanism in each direct marketing communication and should consider adopting this approach as good privacy practice. However, given the different forms and contextual nature of online direct marketing, and the likely future developments in this area, the Government’s preferred approach would be for additional practical level details to be covered by guidance issued by the Office of the Australian Information Commissioner (OAIC). In that respect, the Government notes that it has already accepted an Australian Law Reform Commission (ALRC) recommendation that the OAIC develop and publish detailed guidance about the new direct marketing principle (see rec 26-7), including some key aspects of proposed APP 7.2 and 7.6.

Recommendation 4

The committee recommends that proposed APP 8.2(b) in item 104 of Schedule 1 of the Bill be amended to require an entity to inform an individual of the practical effect and potential consequences of any informed consent by the individual to APP 8.1 not applying to the disclosure of the individual's personal information to an 'overseas recipient'.

Response: Accept in principle

The Government notes that the provision already requires that information be provided to the individual about the effect of providing consent in these circumstances. The Government considers any further guidance on meeting this requirement would be best placed in guidance material issued by the OAIC. OAIC Guidelines could provide advice on the information to be given to the consumer so that they are clear that the consequences of providing consent in such circumstances are that the entity will no longer be responsible for the protection of their personal information by the overseas recipient, and what, if any, additional information should be provided where it is possible and practicable for the entity to know of other practical effects or potential consequences.

Recommendation 5

The committee recommends that the Explanatory Memorandum to the Bill be revised to clearly explain that an entity will be required to inform an individual of the practical effect and potential consequences of any informed consent by the individual to APP 8.1 not applying to the disclosure of the individual's personal information to an 'overseas recipient'.

Response: Accept in principle

Consistent with the Government’s response to recommendation 4, the Government will develop appropriate amendments to the Explanatory Memorandum.

Recommendation 6

The committee recommends that the Attorney-General's Department revise and reissue the Explanatory Memorandum to the Bill to clearly explain the enforcement-related functions and activities of the Department of Immigration and Citizenship, as justification for the classification of the 'Immigration Department' as an 'enforcement body' in item 17 of Schedule 1 of the Bill.

Response: Accept

The Government will develop appropriate amendments to the Explanatory Memorandum.

Recommendation 7

The committee recommends that the Attorney-General's Department revise and reissue the Explanatory Memorandum to the Bill to clearly explain the scope and intended application of the terms 'surveillance activities', 'intelligence gathering activities', and 'monitoring activities' in item 20 of Schedule 1 of the Bill.

Response: Accept

The Government will develop appropriate amendments to the Explanatory Memorandum.

Recommendation 8

The committee recommends that the provisions contained in item 82 of Schedule 1 of the Bill and for each Australian Privacy Principle which contains a 'permitted general situation' or 'permitted health situation' exception, a note should be added at the end of the relevant principle to cross-reference proposed new section 16A of the Privacy Act 1988 and/or proposed new section 16B of the Privacy Act 1988, as appropriate.

Response: Accept

The Government notes the committee’s views that the legislation could be more ‘user-friendly’ and that a cross-reference located in some of the APPs to the exceptions in clauses 16A and 16B may be appropriate. The Government will develop appropriate amendments to the Bill.

Recommendation 9

The committee recommends that the Attorney-General's Department revise and reissue the Explanatory Memorandum to the Bill to explain the intended scope and application of the 'diplomatic or consular functions or activities' exception set out in item 6 in the table to proposed new subsection 16A(1) of the Privacy Act in item 82 of Schedule 1 of the Bill.

Response: Accept

The Government will develop appropriate amendments to the Explanatory Memorandum.

Recommendation 10

The committee recommends that proposed new subsection 6Q(1) in item 69 of Schedule 2 of the Bill be amended to require an appropriate amount of time, such as 14 days, to have elapsed from the date of a written notice before a default listing can occur.

Response: Accept

The Government accepts the recommendation and will insert a requirement that at least 14 days must elapse from the date of the written notice before default information can be disclosed to a credit reporting body.

Recommendation 11

The committee recommends that the written notification in proposed new subsection 6Q(1) in item 69 of Schedule 2 of the Bill be amended to include a warning about the potential for a default listing by a 'credit provider' in the event that an overdue amount is not paid within a set period of time.

Response: Accept in principle

The Government agrees that further information should be provided to consumers about the consequences of failure to pay. However, the Government considers that the Credit Reporting Code of Conduct (CR code) is the most appropriate place to set out requirements on the information to be provided to consumers in the written notice required under 6Q(1). This will ensure that the written notice provides comprehensive advice on what matters must be included, for example additional information about credit reporting and how to obtain a credit report.

Recommendation 12

The committee recommends that proposed new subparagraph 6Q(1)(d)(i) in item 69 of Schedule 2 of the Bill be amended to reflect $300, or such higher amount as the Australian Government considers appropriate, as the minimum amount for which a consumer credit default listing can be made.

Response: Accept in principle

The Government agrees that the minimum amount for a default should be reasonable. The Government recognises that there are strong arguments proposed both for and against changing the current amount of $100. A regulation-making power is included in paragraph (d) of the definition to provide flexibility to vary the minimum amount to a higher level. The Government considers that economic modelling of the impact of changing the minimum amount for the listing of a default to $300 is necessary. The Government will consult with stakeholders on this issue in the development of the Privacy Regulations.

Recommendation 13

The committee recommends that the Office of the Australian Information Commissioner, in formulating guidelines under proposed new section 26V in item 29 of Schedule 3 of the Bill, include as a criterion the timeframe within which an individual's 'default information' can be listed by a 'credit provider'.

Response: Accept

The Government agrees that there would be benefit in providing further guidance around the timing of listing default information in the CR Code, and encourages the OAIC, in formulating guidelines under proposed new section 26V as to what should be included in the CR Code, to include as a criterion the timeframe within which an individual’s ‘default information’ can be listed by a ‘credit provider’. This will ensure guidance around the issue of reasonable timeframes within which a listing should be made is considered as part of the CR Code drafting process.

Recommendation 14

The committee recommends that the Office of the Australian Information Commissioner, in formulating guidelines under proposed new section 26V in item 29 of Schedule 3 of the Bill, include a requirement for credit providers to fully consider an application for financial difficulty assistance under the National Consumer Credit Protection Act 2009 before an individual's 'default information' can be listed.

Response: Accept

The Government agrees that there would be benefit in providing guidance in the CR Code around the consideration of applications for financial difficulty assistance before listing default information. The Government notes that this will only be relevant where a person has applied for hardship assistance prior to default.

Recommendation 15

The committee recommends that the Australian Government consider prohibiting the re-identification of 'credit reporting information' which has been de-identified for research purposes in accordance with proposed new subsection 20M(2) in item 72 of Schedule 2 of the Bill, and whether a proportionate civil penalty should apply to any breach of that prohibition.

Response: Accept in principle

The Government agrees that the risk of re-identification of previously de-identified personal information is an important issue. However, the Government considers that further evidence on the nature and scope of the risk of re-identification is necessary. The Government notes that the Commissioner will issue rules relating to the use of de-identified information for research purposes. The Government will review the situation 12 months after the Commissioner issues rules to determine whether additional measures dealing with the risk of re-identification are necessary.

The Government is aware of concerns expressed to the Committee that the provision may prohibit research currently conducted on credit issues in the community. In order to ensure that such research is permitted to continue, the Government will amend clause 20M to provide that research must be in relation to ‘credit’, rather than the narrower concept of the ‘credit worthiness of individuals’.

Recommendation 16

The committee recommends that proposed new sections 20T and 21V in item 72 of Schedule 2 of the Bill be amended to:

create an obligation for the recipient of a request to take reasonable steps to have the information corrected by the entity which holds the disputed information

create an obligation for the entity which holds the disputed information to correct the information within 30 days, if satisfied that the information is inaccurate, out-of-date, incomplete, irrelevant or misleading, and

create an obligation for the recipient of a request to notify the individual about the outcome of their request if that request has been determined by another entity which holds the disputed information.

Response: Accept in principle

The Government accepts that all entities that hold information should correct it if found to be incorrect. This was the Government’s clear intention in drafting the correction obligations, including the notification requirements. The general quality obligation in 20S and 21U would operate to require the entity holding the disputed information to make the correction. However, the Government considers that the clarification recommended by the Committee would be useful, and that this kind of detail would be best placed in the CR Code.

Recommendation 17

The committee recommends that the regulations made pursuant to section 100 of the Privacy Act 1988 provide a mechanism for 'credit reporting bodies' and 'credit providers' who have received a request for the correction of an individual's personal information to note on the individual's credit file that a correction is under investigation, with the notation to be removed upon completion of that investigation.

Response: Accept in principle

The Government considers this to be an operational matter best dealt with in the CR Code. The matter could also be dealt with as part of education processes to inform individuals about exercising rights already available to obtain credit reports and request corrections. The Government considers that it is important that the suggested notation requirements do not add lengthy procedural steps which extend the length of time required, and add costs to, a process that is intended to be simple and user friendly.

Recommendation 18

The committee recommends that the Bill be amended to enable a 'credit reporting body' or 'credit provider' to correct an individual's personal information in exceptional circumstances, such as in the case of natural disasters, bank error, fraud, medical incapacity, and mail theft.

Response: Accept in principle

The Government agrees that certain exceptional circumstances should be considered by credit providers and credit reporting bodies when listing defaults or considering whether to correct information on an individual’s file. The Government considers that guidance relating to the consideration of exceptional circumstances could be dealt with in the CR Code. The Government considers it a matter for stakeholders to determine the kinds of exceptional circumstances that should be addressed and the way in which these matters should be addressed. As well as this, consumer education initiatives surrounding the Bill should make individuals aware of existing rights in relation to hardship variations, and any other National Consumer Credit Protection (NCCP) Act issues.

Recommendation 19

The committee recommends that the commencement date for the Bill remain at nine months after the Bill receives Royal Assent in order to provide certainty for all relevant stakeholders.

Response: Accept in principle

The Government agrees that a defined commencement date is necessary to provide certainty to stakeholders. However, recognising work to be completed prior to commencement, the Government considers that a period of 15 months is necessary to provide sufficient time for all necessary elements to be in place for an effective transition to the new privacy and credit reporting systems.

Recommendation 20

The committee recommends that before the Bill's commencement date, the Office of the Australian Information Commissioner – in consultation with the Attorney-General's Department, as appropriate – develop and publish material informing consumers of the key changes to privacy legislation as proposed by the Bill, and providing guidance to Commonwealth agencies and private sector organisations to ensure compliance with the new legislative requirements.

Response: Accept

The Government agrees that consumer education surrounding the changes to be made by the Bill is important and supports the OAIC’s plans to produce relevant guidance material.

Recommendation 21

The committee recommends that subject to the preceding recommendations, the Senate pass the Bill.

Response: Noted

Senator WONG (South Australia—Minister for Finance and Deregulation) (15:35): I table an addendum to the explanatory memorandum relating to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012.