The PRESIDENT (09:31): I remind senators that the question may be put on any proposal at the request of any senator. There being no such request, we shall move on.

Senator WHISH-WILSON (Tasmania) (10:04): This is a very important piece of legislation that is before the Senate. The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 is a bill about restricting power of corporations to sue and harass sovereign governments in how they go about enacting legislation on behalf of the Australian people or their nations around the world. It is about giving parliament and parliamentarians a say in our democracy and some influence over secret trade deals. It is about helping to take politics out of our secret trade deals. But mostly it is about protecting our democracy, our sovereignty as a nation, the environment and workers and about bringing much-needed balance back to the trade debate. It is about getting power back to communities. Lastly, and personally to me, who brought the bill to the Senate, it is making a statement about the kind of society that we want to live in.

Investor state dispute settlement clauses are one of two types of dispute resolution mechanisms in modern trade deals. There are state-to-state dispute mechanisms, where a country can take action against another government over a breach of a trade deal, and there are mechanisms where private investors can take their own, personal, action against governments through shady, secret arbitration panels. Essentially, what we have set up in modern trade deals is a parallel system of governance that gives corporations the right and ability to impinge directly upon our ability as parliamentarians to enact legislation in the public interest. Corporations do this if they feel that a government policy or a change in policy has directly affected their profitability or their investment.

It is not only the Greens who are trying to raise the profile of this issue in Australia. A number of other stakeholders in this country are trying to raise the profile of this issue. The Centre for Civil Society has been talking about this issue for a number of years. I see Senator Macdonald in the chamber. He would well remember a similar debate back in 2004 around the US-Australia free trade deal, when his government, under John Howard, refused to sign on to investor state dispute settlement clauses in that trade deal for a very good reason, which Senator Macdonald no doubt knows very well.

This is an issue not just for Australian society; it is an enormous issue all around the world. I was visited by the French consulate about this bill. They came to consult with me and find out more about why we are introducing this bill. They said that ISDS, investor state dispute settlement, clauses had made the front page of both French national newspapers for two days in a row. Two days in a row, on the back of riots in Europe on this issue! The appointment of a trade commissioner in Europe and her wanting to leave ISDS clauses out of free trade agreements negotiated with the US has led to a fracturing of politics in Europe. Whether these clauses are to be allowed in modern trade deals is a hugely contentious issue. In the US it is also an enormous political issue.

We put this bill to parliament—it was inquired into by the Senate Foreign Affairs, Defence and Trade Legislation Committee—because we wanted to raise the level of national debate about the inclusion of such clauses in modern trade deals. I was very grateful when High Court Chief Justice French wrote a paper partly on this bill and around this bill, saying that this country, especially the legal fraternity, needed to have a national debate on whether these clauses should be included in trade deals.

While I was away on holidays—I went on a surfing trip to Indonesia, so I was only able to take a couple of small books with me—I took with me a political essay by Laura Tingle, called 'Great Expectations'. The essay talked about the disconnect in this country between the Australian public and politicians and why politicians are held in such low esteem by the Australian public. It explored a lot of reasons why Australian voters and the Australian public felt that politicians and parliamentarians had lost control of various agendas, particularly in a world of globalisation. It talked about a growing sense of anxiety and alienation in our community and why people were feeling this sense of loss of power over their own lives. It was an excellent expose of some of the deeper underlying issues in our society.

I personally have never felt as acutely this perception and real feeling of loss of control that people in this country have as when I have been talking to people about the free trade debate. This is no secret. Free trade negotiations have been going on for decades and they have always attracted controversy, because the increased opening up of our economies and globalisation of our society have led to very significant changes across our laws, our institutions, our regulations and of course our communities. Now, as we get further and deeper into opening our economies, this issue is becoming more acute. What we have got left to trade is a lot more sensitive. It is a significant matter of public interest right around the world.

The Trans-Pacific Partnership Agreement is one example. It is the largest trade deal this country is negotiating, covering 40 per cent of GDP. On the weekend, Minister Robb dismissed the concerns of civil society and, may I say—having been through Senate inquiries on this—not just civil society; he dismissed concerns of the Productivity Commission and a number of very conservative commentators around the way trade deals are done, negotiated in secret, and about the inclusion of things such as investor-state dispute settlement clauses. He dismissed these too easily and too quickly. It seems that perhaps Laura Tingle is right that a number of politicians and parliamentarians are out of touch with the way the Australian public are feeling with respect to the decisions that we make in this House about things that directly impact the future.

What is it about free trade deals that cause anxiety, mistrust and frustration in the Australian community? I think people realise, from looking at the track record, that negotiations involve trade-offs. You have to give up something to get something. Yet it is only sold to them that somehow these deals are beneficial. There are always costs to trade deals. There have to be, by definition. Every textbook you pick up as a university student talks about this. But we only ever hear about the wins. We only ever hear about the increased agricultural access. But people can see over the years the changes to their communities and to society.

We have seen the collapse of the car industry. I believe one of the reasons the Korean free trade deal was not finalised by the previous Labor government was that they knew it would be the straw that broke the camel's back with the car industry. The Labor Party also knew that it would involve signing ISDS clauses. During hearings of the Joint Standing Committee on Treaties, we heard evidence from a number of stakeholders that the ISDS clause was what had prevented this deal from being signed, because Labor had taken a very strong view on including these undemocratic and dangerous provisions in trade deals. But, unfortunately, it looks like Labor will vote for the Korean free trade deal with ISDS. I will get to that in a minute.

In this debate about trade, who picks the winners? If we have trade-offs in negotiations, who actually picks the winners? How highly politicised is it from the minister and the executive, who control the trade deals and are the only ones who know what is going on behind closed doors? How politicised is this process in picking winners if the power always lies with the executive?

The secrecy is a very serious issue, not just for the Greens and for civil society; the Productivity Commission itself has consistently raised the lack of transparency around trade deals as being a serious issue. The Australian Chamber of Commerce and Industry said there is no need for the secrecy and lack of transparency and that we should be looking at totally redoing our trade negotiation process in this country. Parliament has no oversight in the decisions that are made behind these closed doors. When the final text has been signed and is in train by the government, when the media machines are working overtime to sell these so-called benefits of free trade deals, then we get to scrutinise it. But by that stage it is too late

You either vote against it because there are things you do not like about the trade deal, such as the inclusion of ISDS, or you vote for it. You cannot change it.

As I said yesterday, you take it lock, stock and barrel or get two smoking barrels straight in the face, standing in front of a speeding train. You are anti-Australian and anti-economy, when you have very serious and justified issues about these trade deals, their outcomes and the way they are negotiated—the influence of foreign countries and their agendas, the stakeholders behind trade deals. We think trade deals are all about governments negotiating in our names, but actually behind those government negotiators are special interests, mostly corporate interests. Let me tell you trade and free trade deals are about deregulation. That is what they are about. They are about deregulation and they are about business agendas.

Coming back to this feeling of anxiety that we have in our community about the role of government, many people see these trade deals as a corporate takeover of our country, our institutions and our government by stealth—by stealth because they are conducted in secrecy. We need to change the way we do trade deals in this country, but try and understand that trade deals themselves and the emphasis we put on trade have changed considerably over the decades that we have been opening our economy. Trade deals today are now less about putting things on ships—really tangible concepts that Australians understand: selling iron ore, beef and wine, importing cars—and more about services and promoting services. The future of trade deals, such as the trade in services agreement that is being negotiated, is about investment and protecting direct foreign investment in different countries.

Of course, these deals rely on synchronising laws and regulations between countries. That is what they are now. By default, they are about synchronising laws and regulations between countries—and in whose interest? In the interests of US multinationals? Twenty-three out of the 29 chapters in the transpacific partnership agreement do not relate to trade the way we traditionally understand it. They are all about changing laws and regulations between countries, synchronising and standardising laws and regulations. These are significant matters of public interest in a whole range of different areas—local content for media, the environment, the ability to have moratoriums and flexibility in environmental policy, labour and working standards, policy on pharmaceuticals and access to health care. All these things are being done in secret.

I want to debunk some of the arguments against this bill and against removing ISDS, that somehow these ISDS cases have been around for a long time and that we are very comfortable with them. Guess what—they are proliferating. Ten years ago there were only a dozen ISDS cases around the world. Now there are nearly 600, because the nature of trade deals is changing. They are about protecting direct foreign investment in different countries.

And it is not just First World countries that are having cases brought against them, such as the Australian government being sued by Philip Morris—an aggressive tobacco company trying to change our health policy in this country, trying to intimidate our government, sending a strategic message across the world: 'If you're a Third World country, don't you dare change packaging regulations that impact on our profits. We will sue you. We will spend whatever it takes to achieve that outcome.' This is what got Chief Justice French involved in this debate. And, by the way, Philip Morris is suing the government of Guatemala for doing the same thing, and there are a number of other cases against Australia through the WTO for trying to change our health regulation in this country. This is an example of aggressive corporations trying to sue governments.

These ISDS clauses have been around for 20 or 30 years. They were simply about expropriation of assets. But now there are significant shades of grey about what powers corporations have and their ability to bring cases against governments. We have so-called carve-outs and exceptions now written into these clauses. Do they work? Not according to nearly all the experts around the world. The evidence presented to the committee inquiring into this bill is that they do not work. They certainly do not stop litigation, like the Philip Morris litigation being brought against the government, which we know causes regulatory chilling. It is a very simple way for a corporation to put pressure on sovereign governments not to bring in legislation.

We do not even know how many threats there have been behind the scenes. There is an excellent expose by the ABC on Background Briefing, which goes for 45 minutes and comprehensively covers all the issues on ISDS. They interviewed an expert, Toby Landau, who had been consulting for the UK government. He talked in detail about all the cases he had worked for the UK government around the potential to be sued if they brought in the policy. He said that it is a very real risk that has to be taken into account now by our public servants and our politicians when they bring in policy. You need to consult on this stuff now, because it would give corporations a right to sue sovereign governments if they disagree with our policies.

We know from some of the outcomes from around the world that these legal suits can lead to tens of billions of dollars' worth of losses to taxpayers and citizens in those countries. El Salvador is being sued by OceanaGold, an Australian company based out of Melbourne, for US $300 million. They had a mining licence revoked because of issues around a corrupted process and environmental damage. They are not just suing for the money they have sunk into their exploration; they are suing for lost income—$300 million, which I understand is about half the education budget of El Salvador.

For anyone who says we can have these deals now and that we can safely include them in trade deals, I suggest you go and read a publication that the EU recently commissioned. It has hundreds of the best legal minds in the world saying, 'Do not include these carve-out and exception clauses in trade deals.' By the way, that is exactly what the Productivity Commission said here: 'Do not include these clauses in trade deals'. They bring no benefits; there is no evidence of any increased flows in direct foreign investment across borders or increased trade, but there is plenty of evidence that they significantly bring risks to any country that does have these deals. That is why John Howard did not sign up to it; that is why the Labor Party refused to sign up to deals that included ISDS. Now we will have the Korean free trade agreement legislation coming into the Senate shortly and it includes ISDS. Labor voted for it in the lower House; will they vote for it in the Senate? If they vote for KAFTA with the government—which has clearly changed its tune on this as well—then what do we do for the Transpacific Partnership Agreement? It is the biggest trade deal in this country's history and it has US companies involved and they are the most litigious—the statistics are simple—investors who use investor-state-dispute-settlement clauses.

It is not just Australia that I am worried about; I am worried about the impact on other countries in our region, which are poorer and do not have the money that first world countries have; their environmental and labour standard policies may be impacted by aggressive corporations that try to protect their profits and their shareholders. I would say to the Labor senators: if you want a good expert's say on this, print out Melissa Parke's article in The Guardian yesterday—it is an excellent article on why we should not have ISDS clauses in trade deals. It is a really good and well-written article—you should read it. She understands that including these clauses in trade deals will open a can of worms. I would say to the Liberal senators: have a look at the printout from the DFAT website 10 years ago when John Howard refused to include these in trade deals. It clearly says that we do not need these clauses; that we have strong political institutions in America and Australia; and that these things can be negotiated if they are needed. What has changed in 10 years? We are still doing a lot of business with the US, as we are with Korea. We do not have these in place now, and so why do we need them for the future? They are unnecessary and they present significant risks.

Let's make a strong, visible decision today to protect our government's ability to legislate in the public interest and protect our sovereignty, our communities, our workers and our environment. In other words, let's protect the public interest; let's send a message to the Australian people that we do have control and that we will stand up for them. Today I ask the Senate to vote for the bill. Let's wrestle back power and allow the Australian people to at least start wrestling back power and influence over their own future and the lives of the communities. Let's not weaken our democracy; let's take a very visible stand today and implement this bill and set an international standard.

Senator McGRATH (Queensland) (10:25): It gives me great pleasure to speak on the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014. I think the bill probably is well-intentioned, but I do not think it is a bill that I can support or that my party would support. To bring a blanket ban in on the inclusion of ISDS clauses in free trade agreements would be wrong and would certainly limit the ability of the government to negotiate the best possible deals for Australia and Australian exporters, so the government is considering the inclusion of ISDS clauses in free trade agreements on a case-by-case basis.

There is a great deal of scaremongering with regard to the ISDS approach and the fears raised are simply unfounded judging by Australia's extensive level of experience with them. It is important to remember that ISDS is not a new concept for Australia. We currently have ISDS clauses with 28 economies through four free trade agreements and 21 bilateral investment treaties—these have been agreed to over the past 25 years—and as the minister for trade has pointed out the world certainly has not ended—in fact, far from it. Modern ISDS provisions provide very explicit carve outs and safeguards to protect our ability to govern and regulate in our national interest. ISDS is not a mechanism which allows for frivolous claims. The Labor Party included ISDS provisions in the Australia-Chile Free Trade Agreement and in the ASEAN-Australia-New Zealand free trade agreement back in 2009. The main thing is that ISDS provides protection for those who choose to pursue new opportunities for Australia by investing abroad.

I now want to just talk about a couple of Australian companies who have made use of ISDS overseas. In November 2011 a tribunal awarded White Industries Australia Ltd, an Australian mining company, compensation from India for violating the India-Australia agreement. Details of the award were announced in February 2012. White Industries complained that the Indian courts failed to enforce a foreign arbitration award obtained in 2002 in a dispute between White Industries and its Indian joint venture partner, Coal India Ltd—an Indian state-owned entity. In 2011 Tethyan Copper Company formally commenced ISDS provisions against the government of Pakistan, alleging that Pakistan was in breach of its obligations under the Australia-Pakistan IPPA. In December 2012 Planet Mining's ISDS request against the government of Indonesia was registered by the International Centre for Settlement of Investment Disputes. This was a claim brought under the Australia-Indonesia IPPA in relation to a five per cent stake in an Indonesian company whose exploitation licenses for a coal deposit in Kalimantan had been revoked. In November 2013 the Canadian company Pacific Rim Mining Corporation became a wholly-owned subsidiary of the OceanaGold Corporation. In June 2009 PacRim registered an ISDS request against the government of El Salvador under the US-Central American-Dominican Republic free trade agreement and El Salvador's investment law. This claim was dismissed in June 2012 as a result of a denial of benefits clause. This claim is ongoing under El Salvador's investment law.

Why I talked about those cases—they are the only cases that Australian companies are dealing with at the moment—is that we have to protect Australian companies who want to invest overseas. It is Australian companies who create jobs; it is Australian companies who help grow the economy. Australia is a free trade economy. We are a trading nation. I might digress a little bit. Over the 2000s Australia's ratio of exports and imports to GDP has risen each year. We are an open economy. The size of our import and export sectors is greater than 20 per cent of gross domestic product. Australia is one of the main countries that has benefited from rising international trade. In fact, if we did not have trade and had a closed economy, you would find us becoming one of those closed economies, like Burma or places like that, where we would lose jobs, we would lose wealth and we would be unable to spend any of the money that those opposite want us to spend. Reducing tariffs is producing an estimated savings of at least $1,000 per year to the average Australian family. For example, without the reductions to tariffs on motor vehicles Australians would pay around $10,000 extra on a $30,000 car. Greater access to imports has benefited consumers and businesses by widening the choice of products available and boosting the living standards for many Australians. For us to limit the ability of our government to negotiate agreements with overseas countries by having a blanket ban on ISDS clauses would limit our ability to grow the Australian economy.

There are a number of people who put in evidence to the various committees that looked into the Korean free trade agreement and also to the Senate Foreign Affairs, Defence and Trade Legislation Committee, a committee that recommended against this bill, by the way. Professor Nottage, who is a professor of law at the Sydney Law School, in evidence told the committee that while he thought that the bill was well-intentioned, in the sense that the ISDS treaty based system is far from perfect, he could not support the bill. He said:

[it] would make Australia unique among developed countries and put us in the company of a very few countries, even among developing countries, mainly a few very Leftist regimes in South America. I think it would torpedo future trade and investment treaty negotiations to which the major parties in Australia have long been committed, as well as potentially inhibit the development of multilateral initiatives and international investment law.

In its submission to the committee DFAT argued that the bill may prevent the government from concluding negotiations to benefit Australian producers, consumers and the broader community—something I talked about just before. Furthermore, DFAT went on to say—and I am looking at the report—that excluding ISDS provisions from future trade agreements would impose a significant limitation on the ability of the government, of whichever party, to pursue its broader trade and policy objectives. The report also says:

The Australian Chamber of Commerce and Industry expressed concern that although Australian investors have not utilised ISDS provisions to any great extent in the past—

and I have just talked about the four cases that are public and that I am aware of—

if a ban on ISDS provisions was implemented it would prevent Australian firms from being able to protect their international interests by using such provisions. The Australian Dental Industry Association noted similar concerns in the dental industry. Having sat on the committee and also sitting on the joint Senate committee on treaties, I have done a bit of reading in this area. I think the committee's conclusions are conclusions that I certainly strongly agree with; I supported the motion of the committee.

I think the ISDS system has improved significantly over recent years both in the way in which treaties are drafted in relation to ISDS causes and the way in which cases are argued and how arbitrators decide cases. The committee noted:

Australia … stands to gain more by remaining actively engaged with the international investment law system … where ISDS provisions apply.

The committee noted:

… were Australia to legislate for a blanket ban on ISDS provisions in trade agreements, it would be sending a message to existing and potentially new trading partners that Australia was turning inward-looking and distancing itself from the international law system.

I think that comes to one of the key points here: the government are not saying that each agreement must have ISDS clauses, and we are not having the Greens position, saying that they must not be included; we are saying that it should be decided on a case-by-case basis. The committee was:

… of the view that a blanket ban on ISDS would impose a significant constraint on the ability of Australian governments to negotiate trade agreements that benefit Australian business. It is for this reason that the committee considers the current case-by-case approach to ISDS is in Australia's long-tern national interest and a sound policy for weighing the risks and benefits of ISDS provisions in trade agreements.

I will not list the ISDS provisions in the 21 investment protection and promotion agreements, or IPPAs, but I will briefly touch upon the Korean free trade agreement.

The Korean free trade agreement contains a number of safeguards and carve-outs in four areas. There are safeguards built into the core obligations of the investment chapter. There is a schedule of reservations which allows Australia to maintain existing measures and to reserve policy space to maintain or adopt new measures in sensitive areas. There are exceptions and other carve-outs, and there are actually procedural safeguards built into the ISDS mechanism. I think it shows that the ISDS approach has evolved and changed since such provisions were first brought in over two decades ago.

The safeguards built into the core investment obligations have been developed as a result of the experience of states defending ISDS disputes under the older style agreements. These safeguards are binding on any ISDS tribunal and so reduce the risk of obligations being interpreted in an overly broad way. They include a statement that, except in rare circumstances, non-discriminatory regulatory actions by a party to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute expropriation; and a clarification that the obligations of 'fair and equitable treatment' and 'full protection and security', which have been interpreted broadly by some tribunals, are limited to the minimum standard of treatment required under customary international law.

Australia has scheduled reservations to preserve policy space in sensitive areas. In addition to the reservations which Australia generally includes in free trade agreements, the Korean free trade agreement includes several additional broad reservations which preserve our ability to maintain existing measures or adopt new measures in relevant sectors and areas, including essential security, with respect to foreign investment proposals; human health; blood and blood products; and providing preferences to socially or economically disadvantaged groups. In addition, Australia has included reservations which also appear in other free trade agreements and which provide policy space in relation to Indigenous persons or organisations; social services such as social welfare, public education, public housing, public utilities, health and child care; creative arts and cultural heritage; and gambling.

There are procedural safeguards in the ISDS mechanism. These include an expedited procedure to decide preliminary objections and to dismiss unmeritorious claims promptly and the power for the tribunal to award costs against an investor if it makes frivolous claims; a provision that a joint interpretation by the parties, Australia and Korea, is binding on the tribunal; and the ability of the tribunal to consolidate claims where they arise out of the same event. This also is able to provide a high degree of transparency.

In relation to exceptions and other carve-outs: Australia's carved out decisions under our foreign investment policy—the Foreign Investment Review Board—to object or to impose conditions on a proposed investment from the scope of ISDS: the World Trade Organization based general exceptions apply to all obligations of the investment chapter. These include exemptions for measures to protect human health and the environment. A WTO based essential security exception applies to the investment chapter and includes an additional safeguard provided if a party invokes the security exception in an ISDS dispute, the tribunal shall find that it applies. There is also a specific tax exception which carves out tax measures from most of the investment obligations.

The inclusion of ISDS was not a controversial issue in the Chile free trade negotiations. Both sides there agreed on the importance of providing investor protections. For the free trade agreement overall, both sides agreed that negotiations should be concluded as quickly as possible. This was facilitated and helped by the fact that both Australia and Chile had bilateral free trade agreements with the United States and guiding principles to stick to the approach taken in these agreements to as much an extent as possible.

On the issue of ISDS in particular, Chile's free trade agreement with the US included ISDSs and, as such, both sides were prepared to consider the inclusion of ISDSs. Australia and Chile already had an ISDS under an old bilateral investment treaty, and the free trade agreement negotiations allowed Australia and Chile to develop a more sophisticated approach to ISDS with more safeguards. And both sides had to agree to terminate the old bilateral investment treaty as part of the agreement.

By going through those two free trade agreements, I think it is important to note that the previous government and this government have taken the issue of ISDSs very seriously and have used it as a serious negotiating block in terms of whether it should be included or not. To put a blanket ban on the inclusion of ISDS provisions into any free trade agreements, bilateral agreements or whatever would certainly restrict the ability of Australia to negotiate. I take the point that concerns have been expressed in relation to secrecy in how we negotiate our free trade agreements, but I think it is probably a little bit naive to want to have our agreements negotiated out in the public domain.

It is very important that, once they are negotiated, they do come to the parliament and go through the Treaties Committee, so ably chaired by the member for Longman, and that the treaties are then put to parliament. To suggest that we should negotiate treaties publicly or that it is somehow an attack or affront on democracy that we do not know about the treaties until they come along, I think is wrong. I think it would limit and hurt our negotiating position if suddenly our good friends at Fairfax Media, or Sky News or whoever were reporting on our latest negotiating tactics were. I think it would result in a poorer treaty being agreed, and a poorer treaty would mean that Australians would be poorer. And if Australians were poorer it would mean that we could not have investment and create jobs. And if we do not have the jobs we cannot have the taxes. So, we need to make sure that the Australian economy can grow. I do not think that bringing a ban in on ISDS clauses is the way to do that. I think the current system of the ISDS provisions being negotiated on a case-by-case basis is the best way forward. For that reason, I do not support this bill put forward by the good senator opposite.

Senator McEWEN (South Australia—Opposition Whip in the Senate) (10:44): The opposition will not support passage of the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014. Labor oppose the inclusion of investor-state dispute settlement provisions in trade agreements. However, Labor cannot support the remedy proposed by this bill.

This bill would significantly constrain the executive powers of the government of the day. This approach runs against the constitutional division of powers between the executive and the legislative arms of government in our democratic system. This approach would also create a precedent, undermining the ability of elected federal governments to make progressive reforms in Australia by entering international treaties and conventions.

Labor is a progressive party of government. Over decades, Labor governments have used the Commonwealth treaty-making powers to implement a whole series of progressive reforms in the national interest: progressive reforms to protect the environment, to tackle climate change, to protect human rights, to protect employment and workplace rights, and to prohibit racial discrimination. These are progressive reforms which Labor governments have introduced by using the power of the executive to enter international treaties.

Earlier this week, this Senate paid tribute to former Prime Minister Gough Whitlam. I remind the Senate that the Whitlam government ratified the World Heritage Convention using the executive treaty-making powers which this bill seeks to constrain. It was only because the Whitlam government ratified the World Heritage Convention that the Hawke government was then able to save the Franklin River and the World Heritage listed wilderness areas of western Tasmania. That is something which the Leader of the Greens, Senator Milne, acknowledged in a speech on Gough Whitlam on Monday this week. That is why I am surprised that the Greens, a party formed out of the campaign to save the Tasmanian wilderness, would now week to create a precedent curtailing the executive's treaty-making powers. If that precedent had been in place in 1974, the conservative Senate of the day would have blocked ratification of the World Heritage Convention, and the Franklin River would have been dammed as a result.

I now turn to the issues concerning investor-state dispute settlement provisions. This bill seeks to constrain current and future governments' executive treaty-making power. It would work as a legislative constraint on government from entering into any international agreement that contains investor-state dispute settlement provisions. These provisions, commonly called ISDS provisions, provide foreign investors with greater rights than domestic investors. They grant foreign investors the right to access an international tribunal if they believe actions taken by a host government are in breach of certain commitments made in a free trade agreement or an investment treaty. The ISDS mechanism dates back to shortly after World War II. Inexperienced governments of newly-independent European countries needed to attract foreign investment but lacked experience in property rights and a strong rule of law. Accordingly, one of the original and fundamental justifications for the creation of the ISDS mechanisms was to attract foreign direct investment by providing investors with confidence of an objective legal forum, devoid of the problems of underdeveloped legal systems. Unfortunately, however, in recent years a number of serious problems have arisen with the way ISDS provisions are being applied. International ISDS arbitration is now characterised by substantial costs, substantial delays, lack of certainty, lack of appeal rights, a perception of a lack of impartiality, and abuse of process.

In the decade between 1992 and 2002, the cumulative number of cases under ISDS provisions grew from nought to almost 100. In the following decade to 2012, the number grew to over 500. Of the current known ISDS cases, less than half—244—have been concluded. An ISDS case can typically take between five and 10 years to resolve and the OECD estimates an average cost of $8 million per case, with some cases costing up to $30 million. The panel of arbitrators tend to be largely from the United States or the EU. Professionals in the industry can oscillate between representing a claimant and being a judicial member on a different case involving the same claimant or industry. This practice raises at least an impression of a lack of impartiality. In a robust, developed legal system, justice must both be done and be seen to be done.

The ISDS system has also been used by multinational companies to introduce regulatory chill on sovereign countries. A classic example is the current tobacco plain packaging legislation case against Australia. This expensive and lengthy case, initiated by Philip Morris Asia, has resulted in other countries deferring the implementation of similar health and life saving legislation. These problems with the ISDS system have resulted in governments, organisations and individuals around the world calling for substantial reforms. As just one example, United Nations Conference on Trade and Development, or UNCTAD, has stated:

Challenges posed by today’s investor-state dispute settlement regime create momentum for its reform.

…   …   …

Given the numerous challenges arising from the current ISDS regime, it is timely for States to assess the current system, weigh options for reform, and then decide upon the most appropriate route.

Moreover, the underlying economic rationale no longer stacks up. ISDS provisions could be justified by market failure associated with opportunistic and discriminatory behaviour of host governments. However, the potential of expropriation risk is largely resolved in the marketplace by reputational effects. That is, governments which tend to seek foreign direct investment on an ongoing basis will be significantly harmed by any expropriation type behaviour, even on a single account. Studies have also found that foreign firms tend to enjoy regulatory advantages, rather than bias, as compared with their domestic equivalents. In Australia, the Productivity Commission has concluded that there is no available evidence to suggest that ISDS provisions have a significant impact on foreign investment flows.

As noted in submissions to the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry into this bill, there has been an increase in international concern about the operation of ISDS provisions, accompanied by calls for reform. The United Nations Conference on Trade and Development, UNCTAD, has advocated for a roadmap for ISDS reform. The European Commission is currently analysing the results of almost 150,000 submissions to its public consultations on the ISDS provisions in the Transatlantic Trade and Investment Partnership, the TTIP. Governments and NGOs in Germany, France, Indonesia and South Africa have all expressed their lack of support for future ISDS provisions in multilateral agreements.

In 2010 the Productivity Commission recommended that Australian governments avoid including ISDS provisions in international agreements. In 2011 the former Labor government announced it would not provide foreign investors with greater legal rights than those available to domestic businesses and therefore would not agree to the inclusion of ISDS provisions in new trade and investment treaties. This policy change did not prevent Australia from progressing bilateral and plurilateral treaty negotiations. Indeed, under this policy Australia concluded negotiations on a free trade agreement with Malaysia without the inclusion of ISDS provisions.

It is unfortunate that the Abbott government is either ignorant of the legitimate concerns about ISDS provisions or in its rush to garner three free-trade-agreement trophies this year is just rolling over when Australia's negotiating partners seek to include such provisions in trade agreements. In the South Korea-Australia free trade agreement the coalition government agreed to South Korea's request for ISDS provisions. Labor have indicated that when we are returned to government we will seek to renegotiate this aspect of the South Korea-Australia free trade agreement. Unlike the coalition government, Labor have a clear and responsible policy on ISDS. Labor disagree with the coalition's case-by-case approach to ISDS.

However, Labor is a party of government. In our system of government the state is divided into the executive, legislative and judicial branches. Under this system it is the executive which has responsibility for negotiating and signing international treaties, including trade and investment treaties. Under our system the executive negotiates and enters treaties, and it is the parliament's role to scrutinise these agreements to ensure the executive government is accountable to the public and to consider any enabling legislation. We believe that this balance of responsibility should be maintained. The legislature should not seek to negotiate treaties, revise the text of treaties or set the negotiating mandate of the government. This would undermine the ability of the government of the day to make reforms in the national interest through the executive's treaty-making power.

Over the years, progressive Labor governments have entered international treaties to implement important reforms in areas ranging from the economy to the environment, from industrial relations to eliminating discrimination. I have already given the example of the Whitlam government's ratification of the World Heritage Convention. Let me give some more examples. Some of the most significant protections for human rights in Australia rely on international conventions and treaties which the Whitlam government ratified, including the 1953 Covenant on the Political Rights of Women, the 1966 International Covenant on Economic, Social and Cultural Rights, the 1966 International Convention on the Elimination of all Forms of Racial Discrimination, the 1967 Protocol Relating to the Status of Refugees, and International Labour Organization conventions relating to employment of indigenous workers, freedom of association and the right to organise, equal remuneration, employment discrimination and minimum wage fixing.

The Keating Labor government ratified the ILO Termination of Employment Convention in 1993. This provided Labor with the constitutional basis to pass legislation protecting workers against unfair dismissal. The Industrial Relations Reform Act 1993 extended unfair dismissal protections to millions of federal award and award-free employees who had never been protected against unfair sackings. The use of the ILO convention to provide the constitutional basis for this legislation was opposed by the Liberal Party. On the precedent that would be created by the Trade and Foreign Investment (Protecting the Public Interest) Bill, a coalition dominated Senate could have sought to block ratification of that ILO convention.

The Hawke-Keating government ratified the United Nations Framework Convention on Climate Change and the Rudd government ratified the Kyoto protocol. These agreements established the basis for international cooperation on tackling climate change. The executive's treaty-making power has also been used to protect against racial, sexual and religious discrimination, to provide protections for refugees and to promote and protect Indigenous populations.

In conclusion, as a progressive party of government, Labor accepts the responsibilities of the executive government of the day to negotiate and enter treaties in the national interest. In addition to the mechanisms of accountability to the parliament, governments are ultimately accountable to the people through the ballot box for the way they exercise their executive power. Labor does not support this bill, because it would constrain the executive powers of the government of the day, alter longstanding and well settled constitutional arrangements and undermine the ability of elected federal governments to make progressive reforms by entering international treaties.

Senator SIEWERT (Western Australia—Australian Greens Whip) (10:59): I rise to contribute to the debate on the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, avery sensible bill that Senator Whish-Wilson has introduced as a private senator's bill. The purpose of the bill is to prevent the Commonwealth entering into an agreement with one or more foreign countries if the agreement includes investor-state dispute settlement provisions.

The concern that I have just heard expressed by the Labor Party I think in part seeks to muddy the waters by saying the bill restricts the ability of governments to enter into treaties. Senator Whish-Wilson has had legal advice to suggest that it does not, but he has also indicated on occasion that if there are issues with some of the wording of it, to make it clear we could consider amendments. It is interesting too that, despite speaking strongly about the issues around investor-state dispute settlement provisions, Senator McEwen for the Labor Party did seem to think it was important that the Labor Party has just supported and voted with the government on the KAFTA, which sets a bad precedent for negotiations on the TPP. If they so strongly believed that these issues were of concern, they should have voted against it and forced a renegotiation. As I said, it does indicate a bad precedent for the TPP, which does include US corporations, who are very litigious.

We should be sending a message now that these forms of provisions are not acceptable. They may have been useful in the past, but the world has significantly changed, and our legislation needs to move on so that we ensure that investor-state dispute settlement provisions do not give foreign corporations excessive powers in this country. Free trade agreements are no longer simply concerned with the exchange of goods and services. The inclusion of foreign investment ensures a much more complex system, which does not necessarily make for a better one.

The Greens are very concerned about the government's proposals to include investor-state dispute settlement provisions in future free trade agreements, which could allow foreign companies to sue the government if they consider their business interests to be impinged on by policy or legislation decisions of the government. This is big business insinuating itself into the decision making of a state. It is crony capitalism at its extreme. The Australian Greens Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 seeks to ban the inclusion of investor-state dispute settlement provisions in future trade agreements in order to protect the public interest. Sovereign risk is part of the consideration for companies who want to invest in foreign countries. Risk is part of doing business. Investor-state dispute settlement provisions allow foreign corporations to sue governments if they feel regulations and policies impact on profits. They give corporations a lot of power and there is no proof that increased investment flows. There is no right of appeal in the arbitration process and there is very little transparency with what goes on. Labor refused to sign up to ISDS when they were in government, but they still voted through the Korean-Australian deal, which had ISDS in it. We think they did not want to be seen to be blocking trade deals when this has significant implications for decision making in this country.

The government will not acknowledge or do not understand the risks, because what they want is to get the trade deals done. However, I must note that Mr Howard refused to allow ISDS clauses in the Australia-US FTA. If we get ISDS in the Trans-Pacific Partnership Agreement, US companies will have the right to sue the Australian government. US corporations are the biggest users of ISDSs, and we expect cases against the government would increase if we were to sign the TPP. ISDS applies to state and local governments as well and has significant implications across Australia.

We oppose ISDS provisions for a number of important reasons. Litigation using ISDS has proliferated in recent times and this is likely to increase in the future. You can expect that it will. If you put it in the agreement, you can expect that corporations, particularly US corporations, will use it. ISDS clauses have outlived their usefulness and are now under review in a number of countries and in a number of trade negotiations, including 10 countries in Latin America, in South Africa, in India, in Indonesia and in the European Union. After decades of public debate, it is time to rethink their inclusion in modern trade agreements, because circumstances have significantly changed from the times that Senator McEwen was talking about. It is no longer used for those purposes. The purposes these provisions are used for are to allow multinational corporations to take control, essentially, of key policy decisions or to oppose policy decisions that countries make. It is unacceptable.

There is no evidence that ISDS clauses have any economic benefits for trade or investment. However, the risks of using them are clear and supported by evidence and numerous case studies, a couple of which I will go into shortly. Trade deals are changing from historic market-access trade-driven considerations to facilitating and protecting foreign investment through limits placed on the ability of the government to develop domestic laws and policies in a wide range of areas, including public health, patents on medicine, the environment, food labelling, internet use and privacy, and local media content. This makes the inclusion of ISDS provisions more dangerous.

Although current ISDS litigation by the Philip Morris tobacco company against Australia's plain-packaging legislation is globally significant, we have only escaped the danger of more cases because previous Labor and Liberal governments have only included ISDS in trade agreements with developing countries, which do not have investments in Australia, and have not included them in the Australia-US Free Trade Agreement. US corporations are the most frequent users of ISDS. The current Trans-Pacific Partnership Agreement, the TPP, has proposals for ISDS in the ongoing negotiations, which would therefore expose Australia to a much higher risk of litigation. There was strong evidence presented to the inquiry that ISDS safeguard clauses can and have been reinterpreted and overturned through the arbitration process. Australia has no oversight of control over the inclusion of ISDS in trade negotiations, or other aspects for that matter, of the secretive trade talks. Legislation is the simplest way to remove the risk of their use into the future.

The Australian Greens trade and foreign investment bill seeks to ban the inclusion of ISDS in future trade agreements in order to protect the public interest. Why should we be beholden to foreign investors' vested interests to the detriment of our own citizens? It is a very, very real risk. I am particularly concerned about the impact of ISDS provisions on Australian agriculture and the health and wellbeing of Australians. I urge farmers to take a stronger interest in the inclusion of these provisions, because I think it will lead to adverse impacts on farmers in this country. I urge them and their representative organisations to pay attention to these provisions.

The inclusion of ISDS provisions is a potentially detrimental policy for Australian agriculture. There are already examples of Monsanto suing foreign governments for decisions they see as not being in Monsanto's best interests. We can look at the example of Monsanto and Guatemala. In a landmark decision on 4 September, following intense pressure by Indigenous people, trade unions, farmers' organisations and others, the Guatemalan judiciary ruled to suspend the controversial plant variety protection law, commonly referred to as Monsanto law, because of the multinational biotech company's involvement in it. If passed, the Monsanto law would have given exclusivity on patented seeds to transnational companies, but opponents claim that the new law violated the Guatemalan constitution and the people's rights to traditional cultivation of their land in their ancestral territories.

The law offers producers of transgenic seeds—often corporate companies like Monsanto—strict property rights in the event of possession or exchange of original or harvested seeds of protected varieties without the breeder's authorisation. A breeder's rights extend to varieties, essentially derived from the protected variety. Thus a hybrid of a protected or unprotected seed belongs to the protected seeds producers. What are the implications of this? For one, if a Guatemalan farmer who had been tending his or her land for generations violates the law, wittingly or unwittingly, he or she could face a prison term of one to four years and fines of US$130 to $US1,300, which is very hefty for farmers in that country, who are frequently living on the brink of poverty.

The new legislation would open up the market for genetically modified seeds, which would threaten or displace natural seeds and end their diversity. This is an extremely dangerous proposition, because it threatens food security by introducing a vicious cycle to Guatemalan farmers. With the introduction of modified seeds, it would be hard, if not impossible, to revert back to using Indigenous seeds, making Guatemalan farmers dependent upon foreign seeds—expensive foreign seeds. By law, once genetically modified seeds are invariably mixed with natural seeds, the end result would be legally owned by the property rights holder—that is, guess who? Monsanto.

A publication of the Rural Studies Collective warned about the consequences of this Monsanto law, describing how the law 'promotes privatisation and monopolies over seeds, endangering food sovereignty, especially that of indigenous peoples'; and that 'Guatemala’s biodiversity will fall under the control of domestic and foreign companies.' That is right—handing over that biodiversity to companies to own. Opponents claim that, if passed, Monsanto's law could make criminals of already repressed small farmers who are just trying to cultivate crops for their own consumption, which they have been doing for generations. The law would have prevented Guatemalans from growing and harvesting anything that originates from natural seeds, and farmers could be breaking the law if these seeds had been mixed with patented seeds from other crops as a result of pollination or winds, unless they had a licence for the patented seed from a transnational corporation like Monsanto.

In a statement issued in July, the National Alliance for Biodiversity explained:

According to this law, the rights of plant breeders are superior to the rights of peoples to freely use seeds. It’s a direct attack on the traditional knowledge, biodiversity, life, culture, rural economy and worldview of Peoples, and food sovereignty.

Senator Scullion: Hear! Hear!

Senator SIEWERT: I am glad that somebody agrees that that is what Monsanto's law could result in and understands the issue.

Beyond the domestic repercussions of this ruling, it could also affect Guatemala's inclusion in the Central American free trade agreement. The free trade agreement between the United States and a group of smaller developing countries includes Guatemala. The plant variety protection law originated back in 2004 when Guatemala signed up to the agreement, and agreeing to Monsanto's law is part of the agreement. Should Guatemala or another nation have to listen to the demands of the US by honouring the free trade agreement laws? Not according to the Natural Society, who say:

Big Ag and Big Biotech would severely threaten international food sovereignty. More than 40 countries have already realized this possibility, banning GMO crops.

There are reports that Monsanto intends to sue the Guatemalan government under the ISDS provisions following this decision. We do not want this to happen in Australia. You only have to look at what could happen in Australia, where we have farmers who wish to grow organic crops; we have farmers who do not wish to grow genetically modified organisms. This law could threaten our ability to make laws to protect farmers from GMO crops, and the Steve Marsh case from Western Australia is a very good example.

You can easily foresee a situation where Monsanto brings a case against Australia if we bring in laws that protect farmers such as Steve Marsh from contamination or, for example, put in place strict liability laws or labelling laws around genetically modified organisms so that people know what food they are eating and can make a choice between genetically modified organisms and organic food. These ISDS provisions could enable US corporations to bring action against not only Australia for some of those other circumstances and impact on growers but also consumers who wish to make decisions about what they eat. This potentially could extend to taking that control away.

I would like to quickly look at food security in the south-west of WA. In the south-west of WA we are being significantly impacted on by climate change already. People are having to make choices about what they wish to grow, and they are looking at those markets which are clean and green. They are looking at the markets that do not want to be consuming genetically modified organisms. They want to capitalise on those markets. So they are starting to make decisions about what they grow and in what circumstances. Again, these particular provisions could significantly impact on their choices about what they grow.

ISDS provisions could also limit farmers' rights with regard to stopping fracking on their land. For example, there are disputes in Canada where investors are challenging measures that were introduced on environmental grounds. One, a claim by Lone Pine Resources, arose out of Quebec's moratorium on hydraulic fracturing or fracking that led to the revocation of the company's gas exploration permits. The ISDS litigation concerning mining has steadily increased over the past decade. OceanaGold, an Australian company, currently has a subsidiary that is suing the El Salvadorian government through ISDS provisions for more than $300 million, almost half the government's annual budget, over the government's refusal to grant a goldmining permit. Do we want that happening in this country?

This bill should be passed to protect the interests of Australian farmers and the Australian community and to make sure we have the ability to make decisions that are in this country's, our people's, our farmers' and our consumers' best interests. Going down the path, in this modern age, of supporting ISDS provisions facilitates global companies, multinational companies, taking over the decision making of the country. If they can bring litigation against environmental standards, provisions that protect our food sovereignty and our decision making on where we choose to mine, we are handing over decision making to unelected, transnational, multinational companies. We do not believe Australians want that. We believe they want those decisions to remain with Australia. We think this is a sensible road to take. We urge the Senate to pass this legislation.

Senator RUSTON (South Australia—Deputy Government Whip in the Senate) (11:18): I, too, rise to speak on the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 brought into this place by the Australian Greens. I understand the purpose of this bill is to prevent the Commonwealth from entering into an agreement with one or more foreign countries that includes investor-state dispute settlement provisions.

It is really quite interesting and refreshing, having listened to the contributions of a couple of those who have gone before me, to hear the Australian Greens finally acknowledge the concept of Australian sovereignty. I must say that many of the policies and legislative instruments that they have sought to introduce into this place were, in my opinion, completely contrary to protecting Australia's sovereignty. So I will just put on the record that it is very pleasing that, despite the probable ramifications of what they are trying to do here and their single-mindedness without due consideration for the other side of this particular argument and the debate, at last they realise that Australian sovereignty is important. It is also interesting that we have a situation where we have the Australian Greens arguing for less regulation and protection for Australian businesses, not more. That has certainly surprised me in listening to the debate so far.

In looking at the investor-state dispute settlement mechanism, my understanding of it in layman's terms is that this particular provision in international agreements gives the right to both parties to an agreement to have built into that agreement a mechanism by which disputes can be resolved. You would have to wonder why on earth we would be seeking not to put this protection in place for Australian investors? We have to remember very clearly that this is a two-way street. It is not as though we are suggesting with this mechanism that only international investors will be able to seek remedy for something that has occurred within Australia. We are also putting a provision into this particular mechanism to enable Australian investors in overseas markets to be able to seek remedy for wrongdoing in a particular marketplace.

The second very important component is that this is not about frivolous activity. This is not about frivolous litigation. There is no way in the world that any jurisdiction can bring a frivolous claim against either of the parties to an agreement. To suggest that we are going to have all these frivolous claims and that multinational companies are going to steal Australian sovereignty is an extreme view of what has been put in place as a protective mechanism for Australian investors. To suggest that Australian sovereignty will end up going out the window is somewhat of an overreach by those who are supporting this bill. Australia has had ISDS measures in place over a number of years. In fact, I believe there have been ISDS provisions in a number of the agreements that have been negotiated on behalf of Australian producers wanting to export overseas, and over that period of time, to my understanding, there has only been one case brought against Australia. That was brought by Philip Morris Asia in relation to plain packaging legislation under the 1993 agreement between the government of Australia and the government of Hong Kong for the promotion and protection of investments. As far as I am aware, that is the first investor-state dispute that has been brought against Australia.

When Australia went to plain packaging, Philip Morris was arguing that Australia's measures constituted an expropriation of Australia's investments in breach of article (6) of the Hong Kong agreement and that escalated the matter and triggered the dispute mechanism. Obviously, Australia has rejected the claims that have been made by Philip Morris Australia in relation to this matter and so far the constitutional challenges that have been taken against plain packaging have been refused. I would think that after the experience of 30 years and a multitude of trading arrangements, which Australia has entered into with people around the world, to have had only one challenge would suggest a fine track record for these arrangements and suggests there is no problem with these dispute mechanisms challenging Australia's sovereignty. Had there been several cases in which Australia had been found to be liable and had to pay remedy over 30 years, then you would have to look at this matter more seriously. But the fact that we have had these arrangements in place for 30 years and we have had one case brought against us, has not been found against us, does beg the question: why is it that we have this particular bill in the house at the moment?

It is also worthwhile mentioning in this space that, when negotiating FTAs or multi or bilateral agreements, it is very important to look at the circumstances that surround each and every one of these agreements. Australia does not have a blanket policy to include ISDS provisions in all of our agreements. In fact, we are very careful to make sure that the agreements that we enter into put specific provisions that are to the benefit of Australia in each and every one of them. Each time we make an agreement with a foreign nation, conditions are often very different and to come up with a blanket suggestion that we should allow Australia to enter into an agreement that leaves our investors exposed I think would be irresponsible. There are obviously situations where these particular provisions are considered not necessarily in Australia's best interests and so they are not included in the legislation. It really does worry me that we are debating this sort of legislation—it is scaremongering and all we are doing is scaring the horses—for what benefit?

An ISDS is not a new concept. So far 28 economies through four free trade agreements and 21 bilateral investment treaties over the past 25 years have had this provision, but modern ISDS provisions have very specific carveouts and safeguards to protect our ability to govern and regulate in our national interest. Those are the two words that we should underline when discussing anything about free trade or anything about international agreements—'national interest'. We need to ask: what is in our national interest? We operate in a world of risk—there is absolutely no doubt about that—and if we want to trade with international partners and promote our manufacturers, primary producers and service providers, who wish to operate in an international marketplace, then we have to realise there is a level of risk associated with that. It is very important that in going into these marketplaces that we have in place a number of provisions to protect our primary producers, service providers, manufacturers and anybody else who wishes to export.

One thing that we must never lose sight of is that Australia is an exporting nation. Australia cannot exist on its own markets; we have to export. That is the nature of Australia. We cannot support the population level we would need to sell to ourselves; we are never going to get rich selling to ourselves. First and foremost, any of our trade agreements and arrangements with oversea countries must be in the national interest and we have to ensure that our exporting organisations are given the maximum opportunity to succeed overseas.

I am quite happy to concede that there is always an element of risk when you go offshore due to the intricacies of foreign jurisdictions, but to end up in a situation where we seek to take away a very important protection for Australian investors overseas without considering the exposure—

Senator Whish-Wilson: ISDS has nothing to do with exports.

Senator RUSTON: that Australian producers have to the international market. I cannot say strongly enough that our export markets are so important that if we do not protect Australian investors and make sure we have those provisions in place—

Senator Whish-Wilson interjecting—

Senator RUSTON: we are way more exposed than other countries that are not so reliant on the export market. I think we need to look at the bigger picture and be absolutely and totally focused on what is in Australia's national interest, not in the interest of scaremongering and carrying on.

Senator Whish-Wilson interjecting—

Senator RUSTON: I would like the senator opposite who continues to interject to stand up and tell me about the myriad cases that have been brought against Australia in the last 25 years. As I mentioned a minute ago, there is but one, and as yet it has not been found against Australia. Really, to be carrying on like this, scaremongering and putting at risk through this legislation all of Australia's really important exporters is, I think, not just frivolous but extremely dangerous. The Greens should be asked to account for this.

The most important thing is to make sure that we protect Australia. Looking at the myriad free trade agreements currently being negotiated, particularly the two that have been brought to conclusion in the last few months—thanks to the extraordinary work of Minister Robb and his counterparts—and the benefit that those arrangements will bring to Australian producers, whilst you can measure it simply in terms of the reduction of the tariffs and trade barriers that Australian exporters now receive, you can also see that the opportunity for Australia is absolutely huge.

Just look at the KAFTA, the free trade agreement with Korea. In the area of beef, that will eliminate the 40 per cent tariff on beef and the 18 per cent tariff on by-products over the next 15 years. There is the abolition of the three per cent tariff on raw sugar. In the case of wheat, the 1.8 per cent tariff on wheat and the eight per cent tariff on wheat gluten will be eliminated. That may not seem a lot but, when you consider the volatility of the world wheat market and the massive impact that minor fluctuations in price can have on the world wheat market, it is really important that Australian farmers particularly get the opportunity to operate on a level playing field.

The dairy industry has historically faced very high tariffs, particularly on things like cheese and butter. They will be eliminated. Then there is wine. I come from a wine area in South Australia and I am sure my South Australian colleagues will have to concede that it is just so important with the current situation in the Australian wine industry that we create new export markets for our wine to put the Australian wine industry back where it used to be, at the forefront of international wine sales. At the moment, the industry is having a pretty tough time. Our grape growers and our winemakers are suffering from notoriously low prices, notwithstanding the fact that the Australian dollar has not helped them terribly much. We must give any little extra incentive possible to our wine exporters so that they can enter markets competitively, against some pretty stiff competition from countries like Chile. Chile has already been granted a tariff-free status that Australia has not been able to negotiate, so it is extraordinarily important that, in all of these agreements we are putting in place, we do the absolute very best that we can for our Australian farmers so that they are able to continue to grow their industry. The nature of the Australian economy means that we will never, ever be able to survive just by selling to ourselves. We must export, so these agreements are tremendously important.

The Japanese free trade agreement is equally important to Australian businesses, particularly Australian producers. We hear a lot about Australia having the opportunity to be the food bowl of Asia and the aspirations of many of our near neighbours to consume Australian produce, but, at the end of the day, there will always be a point at which the price has a bearing. Our ability to take advantage of the opportunities that are offered to Australia to become a significant supplier of food to our Asian neighbours comes about through our ability to negotiate agreements with these countries so that Australian exporters are in a position to export. Equally, Australian investors need to have the opportunity for protection when they are investing in operations overseas.

I look at this bill and think that we really need to be very, very clear as to what the net outcome is. The Greens have stood in here today and made an argument for some of the potential downsides of ISDS. I do not think anybody would disagree that a mechanism by which somebody can instigate action against another country is not necessarily favourable. However, what about companies in Australia who seek to invest overseas, particularly in countries whose legal regimes and legislative environments are not as robust as ours in Australia? What about them? Weigh up the risk borne by Australia against the risk that is borne by our investors who seek to go overseas and balance them out.

There is no possibility whatsoever for claims to be frivolous—and I think that is the bottom line. You cannot make a frivolous claim against another country under these provisions. If you cannot take frivolous claims and Australia has a very strong legislative and regulatory environment, the risk to Australia is so small compared to the massive risk that our investors would otherwise face in some of the markets they may seek to invest in. You balance it out and you end up with a net situation where Australia is by far the greater beneficiary of these provisions. I think that is where you need to start.

We cannot take all risk out of everything. In my opinion, we have gone too far in this country in trying to mitigate all risk. The problem with mitigating all risk is the fact that it costs a lot of money. This is not only in relation to ISDS arrangements; across the board, the fact that we have attempted to take all risk out of everything that we do is burdening this country with an unnecessary regulatory burden and bill. Half the reason that we are standing here with this budget crisis that we have at the moment is that the previous government legislated a whole heap of regulations to try and protect people from themselves. The cold hard facts of the matter are that as long as you continue to put more and more regulatory burden into the marketplace the more it is going to cost, and our businesses in Australia have to bear that burden.

To be sitting here today and suggesting that we are going to be able to take all risk out of the marketplace, for Australian sovereignty, is terribly short-sighted in the sense that we are trying to protect our Australian businesses largely from activities that could occur in foreign jurisdictions. There is very little risk here of foreign jurisdictions having any capacity to cause too much grief in Australia. I suggest that the piece of legislation that we have before us, whilst it may well have the best of intentions, is extraordinarily misguided.

Senator GALLACHER (South Australia) (11:38): I too rise to make a contribution in this debate on the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014. I think that our earlier speakers have indicated our position of opposition to this bill. I would have known two parts or nothing about ISDS about four months ago, but having moved from the Rural and Regional Affairs and Transport Committee and other committees onto the Foreign Affairs, Defence and Trade Committee I now, happily, know a little bit about it.

ISDS has been the subject of a couple of inquiries, and it is instructive to put a couple of lines on the record setting out some of the evidence that has been gathered by both the legislation committee and the references committee of the Senate Standing Committees on Foreign Affairs, Defence and Trade. The Department of Foreign Affairs and Trade provides the following definition of ISDS provisions on its website:

ISDS provisions grant foreign investors the right to access an international tribunal if they believe actions taken by a host government are in breach of commitments made in a Free Trade Agreement … or an investment treaty, thus providing additional protections for investors.

I think the line that has been taken here by the Greens is that only foreign investors in Australia need protection. Senator Ruston highlighted the fact that we are a trading nation and history shows that we have probably taken more actions against countries than have been taken against Australia, and the Philip Morris case is the one that comes to mind.

It is instructive to also put on the record that Australia has negotiated ISDS provisions in free trade agreements signed over the past three decades. Currently Australia has ISDS provisions in four free trade agreements: the Australia-Chile Free Trade Agreement, the Singapore-Australia Free Trade Agreement, the Thailand-Australia Free Trade Agreement and the ASEAN-Australia-New Zealand Free Trade Agreement. The Korea-Australia Free Trade Agreement, which has been signed but has not yet entered into force, also includes an ISDS provision. Australia currently has ISDS provisions in 21 bilateral investment treaties with Argentina, China, the Czech Republic, Egypt, Hong Kong, Hungary, India, Indonesia, Laos, Lithuania, Mexico, Pakistan, Papua New Guinea, Peru, the Philippines, Poland, Romania, Sri Lanka, Turkey, Uruguay and Vietnam.

It is instructive to cite a couple more lines with respect to this matter:

The Senate Foreign Affairs, Defence and Trade References Committee conducted an inquiry into the Australia-United States (US) Free Trade Agreement in 2003. At the time, the committee noted that the inclusion of ISDS provisions in agreements with developing countries was a new development. These provisions had primarily been included in agreements to protect Australian investments and property from expropriation by governments in those countries where the rule of law was weak.

This is a very pertinent issue. We had many submissions to the references inquiry into the KAFTA, which highlighted issues from intellectual property to the sovereign right of governments to legislate with respect to health and the rest of it; very well-qualified people indicated concerns with ISDS and the use of these ISDS provisions by global corporations, so to speak, in the case of Philip Morris. When listening to those submissions, I think it is instructive to note that these are provisions that are used after there is exhaustion of the rule of law in the country or countries from which we are seeking a remedy. In Korea, there is a legal system that is recognisable and works; in Australia, there is a legal system that is recognisable and works.

Very interestingly, evidence was put that the Koreans had simply said, 'We will have ISDS or no treaty,' which, given that there is a rule of law in both countries, would seem to have been a tactical position that they had taken. To be fair, they probably had us over a barrel: if we do not get into the Korean market with our agricultural exports, primarily beef, by 1 January, we will be suffering a further competitive disadvantage with the American growers. So, in its wisdom, the government made a decision to include the ISDS. That seemed to provoke a reaction, if you like, and maybe this bill is a reaction to that circumstance.

The position of the opposition, though, is that we were not prepared to delay the KAFTA in order to negotiate amendments to the ISDS mechanism. That would have been unproductive, so to speak. The committee recognised that we already had, as I laid out before, a number of ISDS provisions within quite a number of bilateral and free trade agreements. I think it is also instructive to put on the record that, if the key objective of such a negotiation should be the clarification of our shared understanding of the word 'expropriation', then we get in behind the ISDS provision to the actual detail. The committee noted that other free trade agreements, such as the Canada-Korea FTA, have used narrower definitions of where the term 'expropriation' applies. In the view of the committee, a narrower definition of expropriation which limits the scope of potential liability would provide additional predictability and certainty.

What is very clear to me in my short time on the Foreign Affairs, Defence and Trade Committee is that this is a very complex area. This is a very, very complex subject. ISDS may well provide us with certainty when we are investing in countries where there is less of a rule of law than in Australia. It may provide that balance that allows people to invest in countries where the rule of law is not as visible as it is in Australia. The reverse position is that we are pretty open and honest about our legal system, as Philip Morris found. If you want to challenge the system, then the system will play its part and a decision will be handed down. To go off then and use a Hong Kong free trade agreement to advance concerns is an entitlement and a right. Philip Morris is a global corporation and it has basically done what global corporations do in trying to protect their shareholders' position. Very clearly, it seems to me that ISDS is a horses-for-courses argument. In some cases it would probably be appropriate, as we have determined over the last three decades. Into the future it probably becomes less valuable in the view of the opposition.

It is worthwhile noting the recommendation of the Productivity Commission on ISDS:

That Australian Governments should seek to avoid the inclusion of investor-state dispute settlement provisions in BRTAs that grant foreign investors in Australia substantive or procedural rights greater than those enjoyed by Australian investors.

So, clearly, it is not only experts or people making submissions saying that ISDS is out. We also have the Productivity Commission making a recommendation. The job of the trade minister gets harder and harder. He has to negotiate a trade agreement with a country in the interests of Australia's exporters, and he is getting very competitive and conflicting advice from all quarters.

The committee recognised that the Australian government had indicated it will consider ISDS mechanisms in future trade agreement on a case-by-case basis, which is basically a replication of the last 30 years. In light of this position, the committee considered it vital that the Australian government ensure there are sufficient safeguards within those future ISDS mechanisms to protect the ability of the Australian government to conduct its ordinary processes without the apprehension that investors may instigate compensation claims if investments are negatively affected. So, we have this very complex situation. Very clearly, the committee would recommend that the Australian government should not agree to investor-state dispute settlement mechanisms in future free trade agreements. The reason being is that we have had a history, for over 30 years, of some in, some out, some working well, some not so well, and then we had the Philip Morris position.

Along with a number of other people I have a view, which has come through evidence to the committee, that ISDS is probably not the way to go forward. With the existence of a good legal system in Korea and a good legal system in Australia, ISDS does not appear to have merit to be included. Having said that, free trade agreements are negotiated differently in different countries. I was told last night that the Japan free trade agreement needs to go to the lower house of the Japanese parliament for agreement and that no trade agreements can be made without that assent. We do know that the Korean free trade agreement is currently before the Korean parliament, and they need to sign off on it. Clearly, that is not the case in Australia where only the enabling legislation goes through the respective parliaments. Here we have a situation where we can all be on the same wavelength but on different paths, and I think that is what has happened in this debate.

The point where we get to agreement is not clear. It is the view of quite a number of well-educated, skilled research people that ISDS provisions are going to be detrimental to Australia in the future. It is the attitude of other people that they have worked well for three decades, and we have had only one case in three decades. It protects Australia's investments overseas. We are trading nation and the more we can gain access to markets the better. It is very clear that different parliaments deal with it in different ways. It is also clear that, at the end of the day, there is a negotiation process where someone has to bite the bullet, so to speak, and make a decision. For better or worse, in the KAFTA agreement this government has done that. We have placed on the record our position in respect of that. There you have a broad-brush approach to the situation we find ourselves in.

The European Union has a view on ISDS. The Americans have a view on ISDS. Someone argued that the Americans are using ISDS as a mechanism for their global corporations to further enhance their primacy in the market and their leverage. I am not across that. I hear that view, but I do not subscribe to it particularly—I see no evidence of that. But investor-state dispute settlement, or ISDS, is clearly a topic that is going to be around for a fair while. It will not be resolved in the short term—and, importantly, it will not be resolved by the passage of this bill. This bill could in fact have a detrimental effect on negotiations which are in the best interests of Australian trade.

I will restate the argument. These sorts of trade negotiations have been going on for the last thirty years. There are a large number of countries involved, and trade access to those countries is critical to Australia's economic welfare. Many thousands of mining industry workers, mining companies, agricultural workers, pastoralists and so on rely very heavily on agreements like the Korean free trade agreement.

It is worth noting that even a country as prosperous as Korea, with an average income of over US$30,000 per annum and with very healthy exports of manufactured goods, protects its beef production to the tune of 40 per cent. My question to DFAT was, 'Can you explain to me why a country as wealthy as South Korea taxes its citizens 40 per cent on their purchases of protein?' I asked the Japanese ambassador the same thing. It appears that they protect those industries not for economic reasons but for cultural reasons. Their rural landholders and their rural agricultural lobby groups are immensely strong. It makes no economic sense to charge their citizens 40 per cent extra for protein.

Assuming the Korean parliament agrees to the free trade agreement and we get to 1 January 2015 with the agreement in place, then at least our beef exporters will not be at an even more substantial disadvantage in the Korean market than they currently are. But, as I said, for 75 per cent of our trade with Korea there are no tariffs either way. It is iron ore, it is concentrates, it is lead, it is zinc—it is stuff they need and, as we speak, there are no barriers to any of that coming and going. The barriers have primarily been in the agricultural sector because the Koreans have a view—unlike Australia—that they need to protect that sector.

Delaying the agreement because of the ISDS provisions would be economically foolish. Were we to pass a bill like this, which would have that effect—at least in intent—it would put us at risk of not having the Korean free trade agreement operating on 1 January 2015. The Japan free trade agreement starts on 1 April. I thought that was quite interesting—April Fools' Day being the date of commencement of a free trade agreement. There would be a similar effect on that agreement if we were to take these ISDS provisions off the table. The Koreans have clearly indicated that it is non-negotiable. They wanted the ISDS provisions.

The opposition remains opposed to ISDS clauses. We would look to further clarify the definition of 'expropriation', as other nations have done, but we would otherwise proceed in an orderly manner to pursue Australia's trade interests. I do not have any particular view of Minister Robb other than that he has a very complex and difficult job negotiating these outcomes—as all other trade ministers who have represented the Australian government have had. It is an extremely complex field. Our ministers do, in the main, the best they can in the context of the matters that are up for negotiation at the table. ISDS provisions remain under extreme scrutiny by this opposition, but they should not prevent these agreements from proceeding.

Senator DI NATALE (Victoria) (11:57): The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 was introduced by Senator Whish-Wilson. Senator Whish-Wilson is leading the charge in informing the Australian community about, and protecting the Australian community from, the impact of secret trade deals negotiated without the scrutiny of the Australian parliament. This bill goes to the heart of what the role of government should be and what the role of corporations should be in our community.

The language in this area is very dense and very technical. The term 'ISDS' is used deliberately to ensure that most people do not understand its implications. It is actually very simple. It is simply about whether corporations should have the right to sue governments over the decisions they make. Should a corporation have the right to sue a government if that government makes a decision that affects the corporation's bottom line? That is what this is about. It is very straightforward—and it is a fundamental question. What is the role of government? Should corporations be able to penalise governments for making laws that are in the public interest but which impact on the bottom line of those corporations? It goes straight to the heart of what the role of government is. I take the Churchillian view that democracy is the worst form of government—except for all the others. I would much rather that democratically elected governments made decisions on behalf of the community rather than corporations, whose primary responsibility is to make a profit and to ensure that shareholders get a return. That is effectively what is at stake here.

Of course, when you get into these debates and you get into these polar corners, you end up with people who support trade deals and people who do not. I am not anti trade. I think international trade is a good thing. I think international trade is a tool, if used properly, that can lift people out of poverty. International trade and foreign aid together are very, very powerful tools to lift the living standards of developing countries and developed countries. But it cannot just be free trade; it also has to be fair trade. Those two things need to go together.

Again, reducing tariffs can be a good thing. In fact, it has been a good thing here in Australia, across many industries, enabling us to be a much more competitive, open economy. But this is not some divine rule that has been handed down from above on a tablet. It is interesting that it is often those industries that have benefited from protection from government, that have been able to grow and become strong, that are the greatest proponents of free and fair trade. Trade is a tool here; it is not an outcome.

What these provisions represent is basically a right for companies to make a government go before a local court or a specially arbitrated international tribunal if it believes that government has breached the terms of a trade deal. That is, if the company or investor is successful, governments are held financially liable for the losses that the company incurs. It is so pervasive that it cuts across all tiers of government. It is not just a question for the federal government; it is a question for state governments and a question for local governments.

The great shame here, and we have heard this time and time again, is that there is no transparency in this process. These deals are being negotiated in secret and the community do not understand them. It is a very technical area and it is only after a number of briefings that I have come to understand just how far reaching and pervasive some of these terms are.

We heard from the other side that actually Australia is not really going to be caught up in this. There have been very few investor-state dispute provisions targeting Australia. Let us not forget there have been over 550 claims made against governments over the past 10 years. There have already been 550 disputes, cases brought against governments, over the past 10 years. Australia has signed on to 28 agreements that include these provisions—deals with countries like China, India, Peru, Chile, Singapore and so on.

There is one situation that I want to focus on specifically because it highlights just how dangerous these investor-state dispute provisions are, and it is the issue of plain packaging. We now know that Philip Morris is suing Australia under an ISDS provision in the Hong Kong-Australia investment agreement. What they are doing is they are challenging some of the most significant public health measures introduced by any parliament—that is, our plain packaging legislation introduced by the previous government with the strong support of the Greens—to try and reduce the number of people taking up smoking. But under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments—it is called the Hong Kong agreement—we have seen a claim being brought against Australia. It is the first one that has been brought against Australia. I guarantee, if we sign on to this TPP with the ISDS provisions which we have heard about, it will not be the last.

Philip Morris's Asian division claim that Australia's tobacco plain packaging regime constitutes a breach of an agreement, and that agreement is that there is fair and equitable treatment of Philip Morris Asia's investments. They are asserting that the plain packaging legislation constitutes an unreasonable and discriminatory measure and that their investments have been deprived of full protection and security. That is exactly the point. This is one of the only products we have that, if it is used according to the manufacturer's instructions, will kill you. So the Australian government, as it has done over successive years, has taken an important measure to try and reduce smoking rates. It is what the community expect of us, and yet here we have a multinational company taking action against the Australian government because its profits are under threat. That is what this debate is about.

What we have is the Australian government making laws. They are good laws. They are laws that save people's lives, and yet we have an undemocratic entity taking action against a sovereign nation because of a threat to its investment. The question, of course, is: where does this stop? We now know that there are questions around the Pharmaceutical Benefits Scheme in this agreement, and access to affordable medicines. What about food regulation and food safety?

Let me focus on one specific area. It is the area of a new class of drugs that we call biological drugs. In the rules that we know were being discussed just this week, there were negotiations around the use of biological drugs that will, if implemented, delay access to affordable cancer treatments and new vaccines and increase the cost of PBS listed medications to Australian consumers. There are about 64 of these biological drugs now listed on the PBS. There are going to be many, many more to come. It is a very exciting area of research, generating cancer drugs, medicines for conditions like rheumatoid arthritis and multiple sclerosis and other vaccines. They are very difficult to make. The manufacture of these biological drugs is technically very, very complex. It means that they are expensive. During the period when the company makes the drug, it gets a monopoly because of the nature of the production process of the drug. You cannot simply copy it in the same way that you copy other medications.

We have a process called data exclusivity. Let me try and unpack that. Any drug that is made gets five years of something called data exclusivity. It means that, if you are a generic company and you want to copy someone else's drug, the trials that were done with the originator drug cannot be used for a minimum period of five years. It is an added layer of protection to the company that is innovating and making the drug. It says, 'If you want to copy this drug, it is going to be five years before you can use our results.' Normally in our system, with generic drugs, they do not have to repeat the clinical trials that are done by the originator, and in five years time they get access to that data. It is called data exclusivity. It is an added layer of protection to patent laws.

Under this proposed agreement, there is a plan to extend that data exclusivity. The US wants 12 years of data exclusivity. It means that, should a biological drug be manufactured to treat cancer or rheumatoid arthritis or multiple sclerosis, it will be an additional seven years before a competitor can come along and say, 'We can make this drug, but we can make it for a lot cheaper; it is going to cost the taxpayer a lot less.' That is seven years that we prevent a competitor's entry into this market. These are the champions of free trade! 'We love competition; we love it so much that we are going to stop competition for seven years by disallowing another entrant into the market.' That is what the US wants right now. In Australia, we have a five-year period. The US wants 12. What are we going to get? We simply do not know, because these deals are being negotiated in secret.

I think it is a great irony here. Competition is great. It is wonderful. It is the engine to a productive economy, unless you are a corporation who wants to use patent law, who wants to evergreen and who wants to use data exclusivity to prevent the entry of a competitor—in which case, 'We don't like it.' At the moment, this issue is being discussed very much. The Pharmaceutical Patents Review Panel has said very explicitly that there are no examples that indicate that the current protection systems are not sufficient enough to provide protection for innovator companies. I quote the Pharmaceutical Patents Review Panel:

… at this stage the case has not been made to extend data protection for biologics in Australia.

We do not know what is going to happen. We may find it goes to eight years, as I think Japan are currently talking about, or 12 years, as is the case in other countries.

This is a huge issue. Let me give you an example. There is a particular drug that is marketed as Lucentis. It is an injectable antibody. It treats macular degeneration and stops people from going blind. It was a drug with the third-highest cost to government in 2013. It cost Australian taxpayers $286.9 million in total. When the first biosimilar drug comes onto the market—that is, a generic competitor—you will get a 16 per cent statutory price reduction. That is a saving to the taxpayer of $45 million in the first year, with a whole lot more flow-on effects from price disclosure in subsequent years. That is a huge saving. On the one hand, we have a government running around like Chicken Little saying: 'Look at how unsustainable the health system is. We've gotta introduce co-payments. We've gotta make medicines more expensive.' Well, you are right; you are making them more expensive through these trade deals. That is what they are doing. If you are so concerned about the cost of medications and the cost of the PBS, why would you sign a trade deal that is going to prevent the entry of cheaper generic drugs into the market? That is what we are dealing with right now.

There are so many other areas in this agreement that we could talk about. We have heard from my colleague Senator Rachel Siewert about a whole range of environmental disputes. There are disputes in Canada where investors are challenging measures introduced on a whole range of environmental grounds. There are pine resources in Quebec. They had a moratorium on hydraulic fracturing there, which meant that the company lost their gas exploration permit, so there is a dispute going on there. There is a moratorium on offshore wind farms in Ontario, which was a silly decision by that government, but it is their decision to make. They were democratically elected; if they want a moratorium, they should be able to do it—even if I disagree with that. Then we are told that the ban is a breach of the contract for electricity supply with the Ontario Power Authority for a 20-year period, so there is another dispute. There is OceanaGold, an Australian company, who have a subsidiary in El Salvador suing the government for more than $300 million. Why? Because the government refused to grant a goldmining permit. They are being sued because they knocked back a permit for a goldmine. In Sweden, there is an energy company that has fielded a request for arbitration against Germany. Again, it is because the government made a decision—in this case, I think it was a good one—to phase out nuclear power. Here we have situation after situation where democratically-elected governments, making usually good but sometimes bad decisions, are being challenged by hugely profitable multinational corporations because they affect their profits.

We have to decide who it is that should be making decisions on behalf of the public interest. Who is it? Democratically-elected governments or corporations? I know how I would decide. Then you have to ask the question: what is it all for? The Productivity Commission in 2010 said:

The Commission received no feedback from Australian businesses or industry associations indicating that ISDS provisions were of much value or importance to them.

Another quote:

There does not appear to be an underlying economic problem that necessitates the inclusion of ISDS provisions within agreements.

Here we have our government, behind closed doors, talking to a range of countries, introducing these secret provisions that nobody wants, not even Australian business, that will have an impact on a whole range of vital sectors making decisions about plain packaging, the costs of medicines, whether a mine should be approved and the sort of energy supply we have in this country. Who do we want to be making those decisions? I know who I want. I want the people, who, every few years, I mark a little number next to their name to be accountable. I want to know that, if they get it wrong, I can go back in a few years and boot them out. I do not want some faceless person whose only obligation is to return a profit and who is not accountable to the people that he is taking action against.

I commend Senator Whish-Wilson's legislation. It is an important issue and I think it is about time we started recognising that it is governments, not corporations, that should be legislating on behalf of the public interest.

Senator DASTYARI (New South Wales) (12:16): I do want to acknowledge the large presence of people in the press gallery who have come to hear my words about ISDS! I want to thank them for making the effort. And I will confirm the rumours are true that at 12.20 today—

Senator Whish-Wilson interjecting—

Senator DASTYARI: No, the rumours are true! At 12.20 today there is going to be a pretty important announcement in the Senate chamber, when Senator Fifield finally confirms rumours that he is appearing on Dancing with the Stars. I do not have much time because I believe we are limited to 12.20, so I will try to cover all the ground that I want to cover. Firstly, I congratulate Senator Whish-Wilson for bringing this bill forward, the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, and for encouraging us to have this debate. The truth is that, for something as significant as ISDS, there has not been all that much interest. It is not a topic that, frankly, enough people understand or enough people have been talking about. That is unfortunate, considering the significance of all of this and the impact this can and will have.

It is important to take a step back and see where all this came from and why it was significant in the first place. The principle behind it, like a lot of principles, is not necessarily a bad one. I slightly disagree with some of what Senator Di Natale said, although I agree with his sentiment. I do not oppose the idea that corporations and businesses have a right to protect some of their investments and that they do have a right, especially when dealing with certain nations, including Third World nations, that do not have the same kind of natural law or rights that we have where a general's brother will suddenly start nationalising your business for their own gain. In those kinds of extreme circumstances there should not be some kind of international or trade vehicle that allows businesses to maintain and protect their rights and property. That, as a principle, I do not think is a bad thing. But what is incredibly unfortunate is what has happened in the ISDS debate and what we consistently see happen. What starts off as what seems like a fairly reasonable principle—that is, businesses that make huge investments in other nations should have some kind of capacity to protect their investment—is overtaken and distorted where big corporations are using free trade agreements to stymie or profit from what would otherwise be democratic, reasonable and rational decisions that governments make. Governments can and will from time to time be making decisions that will go against the interests of private corporations. But when they do it and they do it in the public good, they should have a right to be able to do that. Of course, within Australian law we believe that when this happens to Australian companies they should have an opportunity to participate in that process. We have a parliament and places like this so that we can have that kind of debate.

What is really worrying about the ISDS debate is that a corporation can take on a government without having to really make the public case, without even having to debate whether their actions are in the public interest or public good and, more unfortunately—and you see this happening right around the world—corporations are misusing ISDS provisions in obscure trade agreements, some of which go back 20 or 30 years, simply to give themselves a vehicle or an avenue to make those kinds of claims.

There is this idea that there is a handful of international lawyers who are becoming very wealthy in this quasi legal space. You also have a whole lot of senior lawyers, senior jurists, senior academics across the world who are highlighting the fact that it is a really big problem when a small group of people meet in a hotel room to resolve an ISDS dispute and make decisions that can have a significant impact of tens, hundreds or even billions of dollars on a national economy that should be entitled to make those decisions.

Where I slightly disagree with respect to this legislation—and where I disagree somewhat with Senator Whish-Wilson, for whom I have a lot of respect for on this issue—is prohibiting it as a rule. I do not think that is the right way to go. But I think we should be very aware of ensuring it is not part of how we engage in our own trade negotiations.

Those in the chamber who follow this stuff closely—and a lot of people follow this stuff a lot closer than I do—can tell you about where things are at with the Trans-Pacific Partnership and whether there will be ISDS provisions within that. I congratulate the former Howard government on taking out the ISDS provisions when they initially negotiated the free trade agreement with the US. I understand there is a lot of pressure from many corporations that it be included in future agreements. Those are not just domestic corporations; I think it is the big American companies that have been very outspoken in their support of including the ISDS provisions. The American government and the American congress itself have been quite supportive. The reason is that they have never been at the other end of it. The American system has never really been at the other end of losing one of these big disputes. Once that happens, and I think it is inevitable that it will happen, the tide will start to turn.

We need to look at what is in the Australian interest and what is in our own interest here. To highlight the concern, I want to use the most recent free trade agreement with South Korea as an example. Again, as a point of principle, a free trade agreement with South Korea is a good thing. Is it going to massively change the Australian economy? No. There are larger trade deals; there are smaller trade deals. But it is something that should be welcomed. The inclusion of the ISDS provisions is, I think, unfortunate. I think it has been made quite clear by the former trade minister at the time, Craig Emerson, and others that it was not something Labor was prepared to negotiate into the agreement. We felt that the agreement would have been better and that the agreement should not have included those ISDS provisions. Unfortunately, the current government had a different view. It passed it with the ISDS. Was that reason enough, as far as we were concerned, to oppose the whole free trade agreement? No. But it is unfortunate. We believe it could have been a better free trade agreement without ISDS. We certainly would have negotiated it so that it would not have been included.

More specifically, though, getting to Senator Whish-Wilson's bill, I think it is unfortunate that a whole chunk of Australian business and the Australian community are not really aware just of the significance of this ISDS debate for Australian society. Senator Di Natale made a reference to the most recent case, regarding tobacco and an obscure provision within a free trade agreement between Australia and Hong Kong that actually goes back to before Hong Kong even returned to being part of China. To be able to use that and latch onto that to make an argument against what I think was a very reasonable policy that was introduced by the Labor Party is concerning, and it should be concerning.

When we are seeing ISDS being used in that way, the international community has a right to be concerned. It should not be part of our free trade agreements. We should be quite outspoken in opposing it when we are looking at the TPP and other trade deals. I note that I am running out of time but I will say that Senator Whish-Wilson should be congratulated for bringing this forward. I do, however, believe there are better ways of tackling the ISDS issue than through this bill. While I will not personally be supporting the bill itself, I certainly support the sentiment that we should all be very, very concerned about ISDS and the risks that arise from it.

The DEPUTY PRESIDENT (12:25): Order! It being 12:25, the time allotted for this debate has now expired.

Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (12:25): I present the 14th report of 2014 of the Selection of Bills Committee.

Ordered that the report be adopted.

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

Leave granted.

The report read as follows—

SELECTION OF BILLS COMMITTEE

REPORT NO. 14 OF 2014

1. The committee met in private session on Wednesday, 29 October 2014 at 7.21 pm.

2. The committee resolved to recommend—That—

(a) the provisions of the Acts and Instruments (Framework Reform) Bill 2014 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 25 November 2014 (see appendix 1 for a statement of reasons for referral);

(b) the provisions of the Australian Citizenship and Other Legislation Amendment Bill 2014 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 1 December 2014 (see appendix 2 for a statement of reasons for referral);

(c) the provisions of the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014 be referred immediately to the Environment and Communications Legislation Committee for inquiry and report by 9 February 2015 (see appendix 3 for a statement of reasons for referral);

(d) the provisions of the Customs Amendment (Japan-Australia Economic Partnership Agreement Implementation) Bill 2014 and the Customs Tariff Amendment (Japan-Australia Economic Partnership Agreement Implementation) Bill 2014 be referred immediately to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 27 November 2014 (see appendix 4 for a statement of reasons for referral);

(e) the provisions of the Freedom of Information Amendment (New Arrangements) Bill 2014 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 25 November 2014 (see appendices 5 and 6 for a statement of reasons for referral);

(f) contingent upon its introduction in the House of Representatives, the provisions of the Tax and Superannuation Laws Amendment (2014 Measures No. 6) Bill 2014 be referred immediately to the Economics Legislation Committee for inquiry and report by 25 November 2014 (see appendix 7 for a statement of reasons for referral); and

(g) the provisions of the Telecommunications Legislation Amendment (Deregulation) Bill 2014 and the Telecommunications (Industry Levy) Amendment Bill 2014 be referred immediately to the Environment and Communications Legislation Committee for inquiry and report by 9 February 2015 (see appendix 8 for a statement of reasons for referral).

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

• Albury-Wodonga Development Corporation (Abolition) Bill 2014

• Amending Acts 1970 to 1979 Repeal Bill 2014

• Building Energy Efficiency Disclosure Amendment Bill 2014

• Omnibus Repeal Day (Spring 2014) Bill 2014

• Statute Law Revision Bill (No. 2) 2014.

The committee recommends accordingly.

4. The committee considered the following bill but was unable to reach agreement:

• Counter-Terrorism Legislation Amendment Bill (No. 1) 2014

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

• Australian War Memorial Amendment Bill 2014

• Civil Law and Justice Legislation Amendment Bill 2014

• Corporations Amendment (Publish What You Pay) Bill 2014

• Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014

• Export Finance and Insurance Corporation Amendment (Direct Lending and Other Measures) Bill 2014

• Mining Subsidies Legislation Amendment (Raising Revenue) Bill 2014

• Motor Vehicle Standards (Cheaper Transport) Bill 2014

• Save Our Sharks Bill 2014

• Social Security and Other Legislation Amendment (Caring for Single Parents) Bill 2014

• Treasury Legislation Amendment (Repeal Day) Bill 2014.

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

•   Australian War Memorial Amendment Bill 2014

•   Civil Law and Justice Legislation Amendment Bill 2014

•   Corporations Amendment (Publish What You Pay) Bill 2014

•   Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014

•   Export Finance and Insurance Corporation Amendment (Direct Lending and Other Measures) Bill 2014

•   Mining Subsidies Legislation Amendment (Raising Revenue) Bill 2014

•   Motor Vehicle Standards (Cheaper Transport) Bill 2014

•   Save Our Sharks Bill 2014

•   Social Security and Other Legislation Amendment (Caring for Single Parents) Bill 2014

•   Treasury Legislation Amendment (Repeal Day) Bill 2014.

(David Bushby)

Chair

30 October 2014

APPENDIX 1

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Acts and Instruments (Framework Reform) Bill 2014

Reasons for referral/principal issues for consideration:

To ensure proper scrutiny of this Bill and its potential implications.

Possible submissions or evidence from:

Relevant agencies, stakeholder groups and the public.

Committee to which bill is to be referred:

Senate Legal and Constitutional Affairs Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

26 November 2014

(signed)

Senator Moore

APPENDIX 2

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Australian Citizenship and Other Legislation Amendment Bill 2014

Reasons for referral/principal issues for consideration:

To allow detailed consideration of the provisions of the Bill to ensure it does not have unintended adverse consequences.

To facilitate public submissions to ensure stakeholders views can be taken into account.

Possible submissions or evidence from:

Department of Immigration and Border Protection

Immigration stakeholders

Committee to which bill is to be referred:

Senate Legal and Constitutional Affairs Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

Monday 1 December 2014

(signed)

Senator Moore

APPENDIX 3

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Broadcasting and Other Legislation Amendment Bill 2014

Reasons for referral/principal issues for consideration:

The removal of auditing requirements for Australian content has the potential to significantly impact the amount of Australian content in the local broadcast media landscape. In addition, there are significantly concerns over the legislation's change to captioning requirements. Both have the potential to significantly impact the viewing experience of Australian television content for local audiences.

Possible submissions or evidence from:

Television stations (Seven, Nine, Ten, ABC, SBS),

Consumer groups such as CHOICE.

User groups of captioning services.

Media diversity and competition academics.

Committee to which bill is to be referred:

Senate Environment and Communications Legislation Committee

Possible hearing date(s):

28 November

Possible reporting date:

February 9, 2015

(signed)

Senator Siewert

APPENDIX 4

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Customs Amendment (Japan-Australia Economic Partnership Agreement Implementation) Bill 2014

Customs Tariff Amendment (Japan-Australia Economic Partnership Agreement Implementation) Bill 2014

Reasons for referral/principal issues for consideration:

To enable thorough scrutiny of the provisions of the legislation.

To supplement the inquiry of the Joint Standing Committee on Treaties into the Agreement.

Possible submissions or evidence from:

Department of Foreign Affairs and Trade

Australian Customs and Border Protection Service

Customs Brokers and Forwarders Council of Australia

Export Council of Australia

Other industry groups and businesses affected by the Bill [see the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Customs Amendment (Korea-Australia Free Trade Agreement Implementation) Bill 2014]

Committee to which bill is to be referred:

Senate Foreign Affairs, Defence and Trade Legislation Committee.

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

Monday 1 December 2014

(signed)

Senator Moore

APPENDIX 5

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Freedom of Information Amendment (New Arrangements) Bill 2014

Reasons for referral/principal issues for consideration:

To ensure proper scrutiny of this Bill and its potential implications.

Possible submissions or evidence from:

Relevant agencies, stakeholder groups and the public.

Committee to which bill is to be referred:

Senate Legal and Constitutional Affairs Legislation Committee

Possible hearing date(s):

To be determined by the Committee

Possible reporting date:

26 November 2014

(signed)

Senator Moore

APPENDIX 6

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Freedom of Information Amendment (New Arrangements) Bill 2014

Reasons for referral/principal issues for consideration:

The disbanding of the Office of the Australian Information Commissioner will result in a lack of independent review and no statutory body advocating on behalf of information access and open and transparent government. It will result in unaffordable review processes via the AAT. The implications of this bill on the democratic process and on the ability of the media and NGOs to review the decisions of government are unknown and a committee inquiry will help identify them.

Possible submissions or evidence from:

Media Entertainment and Arts Alliance

NSW Council of Civil Liberties

Office of the Australian Information Commissioner

Right to Know

Media organisations eg. The Guardian, Fairfax, New Matilda, The Australian.

Human Rights Law Centre

Committee to which bill is to be referred:

Senate Finance and Public Administration Legislation Committee

Possible hearing date(s):

November 4

Possible reporting date:

4 December 2014

(signed)

Senator Siewert

APPENDIX 7

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Tax and Superannuation Laws Amendment (2014 Measures No.6) Bill 2014

Reasons for referral/principal issues for consideration:

Consider the appropriate rate of indexation for fuel and ensure fuel tax credit provisions operate efficiently (schedule 4), as do grants calculated by reference to the duty rates (schedule 5).

Ensure that amendments have been effectively designed to remove tax impediments to certain business restructures (schedule 1), provide certainty for foreign pension fund investments in Australian managed investment trusts (schedule 2) and implement tax aspects of the Force Posture Agreement with the United States (schedule 3).

Possible submissions or evidence from:

Australian Chamber of Commerce and Industry

Business Council of Australia

Australian Trucking Association

National Farmers Federation

Minerals Council of Australia

Department of the Treasury

Australian Taxation Office

Committee to which bill is to be referred:

Senate Economics Legislation Committee

Possible hearing date(s):

To be determined by the committee.

Possible reporting date:

24 November 2014

(signed)

Senator Fifield

APPENDIX 8

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Telecommunications Legislation Amendment (Deregulation Bill 2014

Telecommunications (Industry Levy) Amendment Bill 2014

Reasons for referral/principal issues for consideration:

This bill contains a number of legislative changes which have the potential to significantly change the operation of the telecommunications industry. Especially concerning is Schedule 5, which will remove a requirement for telcos to divulge the number of warrantless metadata requests they receive from law enforcement agencies. In order to ensure regulatory stability in the telecommunications industry and transparency of warrantless requests, the industry and consumers must be able to provide feedback on this bill in detail.

Possible submissions or evidence from:

Telecommunications industry (eg Telstra, Optus, iiNet, Vodafone)

Consumer representatives (eg ACCAN, Choice)

Civil liberties organisations (eg Civil Liberties Australia, the NSW Council of Civil Liberties

Committee to which bill is to be referred:

Senate Environment and Communications Legislation Committee

Possible hearing date(s):

28 November

Possible reporting date:

February 9, 2015

(signed)

Senator Siewert

Senator FIFIELD (Victoria—Manager of Government Business in the Senate and Assistant Minister for Social Services) (12:25): I move the following amendment in respect of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014:

That the bill not be referred to committees.

Senator SIEWERT (Western Australia—Australian Greens Whip) (12:25): The Greens do not agree that that bill should not be referred. We did refer it. We think that the Senate committee should be looking into that particular bill on provisions. We are very disappointed that the Senate is deciding not to refer it, so we would like to note our dissent from that call by the Selection of Bills Committee. I obviously did not sway the committee in my arguments last night, and I do not think I will sway the Senate in the arguments now. I do not wish to delay the business of the Senate but I would like it recorded that we dissent from the agreement between Labor and the government that it should not be sent to committee.

The DEPUTY PRESIDENT (12:27): The question is that Senator Fifield's amendment be agreed to.

Question agreed to.

The DEPUTY PRESIDENT (12:27): The question now is that the motion moved by Senator Bushby be agreed to.

Question agreed to.

The DEPUTY PRESIDENT (12:28): I remind senators that the question may be put on any proposal at the request of any senator. Are there any such requests? There being none, I shall now proceed to the discovery of formal business.

Senator McLUCAS (Queensland) (12:45): I rise to speak to the Dental Benefits Legislation Amendment Bill 2014 and indicate that the opposition will be supporting this legislation. This is legislation that would have been adopted by Labor if we had been in government, so we indicate that we will support it. The purpose of the Dental Benefits Legislation Amendment Bill 2014 is to amend the Health Insurance Act 1973 and the Dental Benefits Act 2008 to specify that Professional Services Review Scheme, which enforces compliance with appropriate practices, applies to services provided under the Child Dental Benefits Schedule. It is also to waive debts incurred by dentists under the superseded Chronic Disease Dental Scheme before 1 April 2010 due to noncompliance with administrative requirements. It waives debts incurred after this date if a dentist can demonstrate an intent to comply with the scheme. The bill also will ensure compliance with the legislative requirements for the payment of dental benefits and it allows the minister to delegate powers to insert a definition of a dental provider and allow for protected information to be shared between agencies.

The Child Dental Benefits Schedule—CDBS—was closed on 1 December 2012. It operated under Health Insurance (Dental Services) Determination 2007, as made under section 3C of the Health Insurance Act 1973. The scheme provided for up to $4,250 over two calendar years in Medicare benefits for private dental services for people with chronic medical conditions and complex care needs. The Department of Human Services conducted audits on the CDBS and found that there was a high rate of noncompliance with the provider reporting requirements set out in section 10(2) of the determination. Debts were raised against dentists found to be noncompliant through the audit process.

Further, more than 20 per cent of recipients were not pensioners or concession card holders and more than 20 per cent of spending was on high-cost restorative services. Section 10(2) of the determination required a dentist to provide a treatment plan to the referring medical practitioner and the patient and a quote to the patient before starting treatment. Audits for claims of benefits under the CDBS found that many dentists did not comply with these requirements. As a result, benefits were incorrectly paid and under section 129AC of the Health Insurance Act. These amounts are due to the Commonwealth from the dentists concerned.

Representations from the Australian Dental Association and other groups outlined that dentists had not been aware of their obligation under the Chronic Disease Dental Scheme until April 2010 and the government has decided that debts due to the Commonwealth solely as a result of noncompliance with section 10(2) before April 2010 should be waived. The government has further decided that debts solely due to noncompliance after April 2010 should be waived as long as the dentist can demonstrate an intention to comply with the CDBS obligations.

At present, the debt waivers are proceeding under section 34 of the Financial Management and Accountability Act. However, the government thinks this is a slow and unwieldy process that requires unnecessary administration and processing in both the Department of Human Services and the Department of Finance. This has resulted in the government's decision to include a special debt waiver provision in the Health Insurance Act. Powers to assist the chief executive of Medicare in determining and enforcing compliance with legislative requirements for the payments of benefits are inserted under part 3—compliance. Equivalent powers were inserted into the Health Insurance Act through an amendment in 2011 and the provisions in this part are modelled on those Health Insurance Act provisions.

Part 4 of the bill provides for a delegation of ministerial powers, which is currently not included. Part 5 amends the definition of the dental provider to align with the definition under the national law dealing with the registration of health professionals. Part 6, the provision of information, allows for information obtained under the act to be disclosed to the minister and the department administrating the Veterans' Entitlements Act 1986 if the disclosure is for the purpose of administering the Dental Benefits Act, as people may be eligible for dental benefits if they are receiving certain allowances paid by the Department of Veterans' Affairs. Part 7 is a minor technical amendment.

The Child Dental Benefits Schedule commenced on 1 January 2014 and provides two- to 17-year-olds who meet a means test with access of up to $1,000 of benefits over two calendar years for basic dental treatment. The Child Dental Benefits Schedule replaces the Medicare Teen Dental Plan and provides more comprehensive coverage through a greater range of services to a larger group of children. The CDBS formed part of Labor's $4.1 billion dental reform package announced on 29 August 2012. The dental reform package comprised $2.7 billion for around 3.4 million Australian children, who will be eligible for subsidised dental care through the CDBS. It provided $1.3 billion for around 1.4 million additional services for adults on low incomes, who will have better access to dental care in the public system, and $225 million for capital works and workforce in the dental area to support expanded services for people living in outer metropolitan, regional, rural and remote areas.

There are potential risks to the Child Dental Benefits Schedule. Minister Dutton flagged concerns with the way he thinks the CDBS has been structured in the second reading speech to this bill in the other place. He said he was going to keep a watching brief on the outlays and the initial usage rates, as well as practices across states and territories in relation to their operation of this scheme. I am concerned, and I put this on the record, that this could be the government's commencement of undoing this very successful scheme. It is extraordinary that in our country it is only in recent years that we have included dental services in our federally funded health system. Unfortunately, when Medibank was first being negotiated, dental services were not included. It was seen that having a big conversation, if I can put it that way, with both the medical profession and the dental profession at the same time would be a hard thing to achieve, so a decision was made not to include dental services.

That has been a concern to Labor for a long period of time. That is why when we were in government we put a lot of effort into ensuring that we improved our effort from the federal perspective to provide support, particularly for low-income earners, to receive proper dental care. We do not have a good dental record in this country, and it is time that we make sure that children particularly are attending the dentist as regularly as they should and that they get into the habit, frankly, of going to the dentist. Unfortunately, not many of us like doing that, but that is why we established the Child Dental Benefits Schedule when we did, to basically get into place the habit of going to the dentist on a regular basis. Prevention is better than cure, no more so than when it comes to dental services.

This also gives me an opportunity to apprise the Senate of work that the Senate Select Committee on Health has been doing to inquire into changes to the health system that the budget proposes. I want to go to the question of GP co-payments. I listened to AM this week, and Mr Hockey was asked about why the GP co-payment proposal was not considered prior to the election and whether that wasn't a broken promise, because no-one was told during the election campaign that the government was going to require a co-payment to be paid but, come the budget, we find that there is a tax on going to the doctor. Mr Hockey said, 'But we promised that we would fix the budget bottom line', or words to that effect. I was surprised that the interviewer did not pick him up on that, because the budget papers show quite clearly that the funds raised by the GP tax will go to the Medical Research Future Fund.

That will not fix the budget bottom line, and that is an issue that has been canvassed by the Senate Select Committee on Health in a number of places. Not every witness to the committee, but almost all, is extremely critical of the measures in this budget that say that we will tax those who are sick and those who are poor, particularly to go to the doctor but also to get their pharmaceuticals filled and to use diagnostic imaging. We had evidence in the committee from people saying that the people who will be most disadvantaged by this, as I said, will be the sick and the poor but particularly homeless people, people who are living in rural and remote areas and people who use the services of Aboriginal medical services. There is a lot of work being done to try to ascertain the real cost that will be incurred in our Aboriginal and Torres Strait Islander community from people who defer receiving primary healthcare services. So, the GP tax, the GP co-payment, has been broadly and widely criticised for being poorly targeted and because it will add to the health burden of the country. Once again, to go back to Mr Hockey's comment about fixing the budget bottom line: it does not, and he should know that; he is the Treasurer.

Finally, I want to go to some commentary around the disbanding of Medicare Locals. Mr Abbott said, prior to the election, that there would be no change to Medicare Locals—that the 61 Medicare Locals as they existed would be there into the future. Now we find that Medicare Locals have all been abolished; they will cease to operate at the end of June next year. We also know that the potential cost of disbanding and winding up those Medicare Locals is $120 million. Some of that money may be saved if some of those Medicare Locals transition into Primary Health Networks, but the costs are huge, and for what benefit? I say that the reason this government does not like Medicare Locals is that they have the word 'Medicare' in there. Liberals do not like Medicare. We know that. We saw that back in the 1970s when the Liberal Party got rid of Medibank. We had to reinstate it as a Labor government when we came into power. I suggest that the reason this government is disbanding the Medicare Locals system is that they do not like the name, because the Primary Health Networks essentially do a similar job, but they will now do it over a much larger geographic area.

As a person representing particularly a regional area in the country, I express real concerns about this. The geographical area that the North Queensland Medicare Local will now cover will go from the Torres Strait Islands, from the border with Papua New Guinea, to south of Mackay and over the Great Dividing Range. It is a massive area and the health needs of those different communities are enormous. That we could have a local health service connected to local health needs over such a vast area is a fundamental design mistake, in my view. Our committee will continue to investigate the development of the primary health networks. We will continue to do the work to uncover these design mistakes that we believe—certainly Labor members believe—are inherent in the design of the primary health networks. In continuing that work, hopefully we will be able to provide some advice to the parliament about some of those issues in the short term.

To come back to the bill, I reiterate that Labor will be supporting the passage of the Dental Benefits Legislation Amendment Bill. I commend the bill to the chamber.

Senator BILYK (Tasmania—Deputy Opposition Whip in the Senate) (13:01): The Dental Benefits Legislation Amendment Bill 2014 will create a waiver provision for the Medicare Chronic Disease Dental Scheme and make a number of amendments to the operation of the Child Dental Benefits Schedule. At present, the debt waivers are proceeding under section 34 of the Financial Management and Accountability Act 1997. I am aware that the government thinks this is a slow and unwieldy process that requires unnecessary administration and processing, in both the Department of Human Services and the Department of Finance, which has resulted in the government's decision to include a specific debt waiver provision in the Health Insurance Act. This bill will make amendments to the Dental Benefits Act and the Health Insurance Act to align compliance powers and to make these powers applicable to the CDBS. It also amends both acts so that the Professional Services Review scheme can be applied to dental services provided under the CDBS.

On this side, we take very, very seriously the issue of inappropriate professional behaviour and we support the application of compliance powers as well as the operation of the Professional Services Review scheme. The previous scheme was closed from 1 December 2012 and we know that the audit activity of the CDDS detected a high rate of noncompliance with the recording requirements of dentists. As a result of this, audit activity debts were raised against dentists found to be noncompliant. Indeed, I had a dentist in my local area come to me with a number of concerns, which I progressed up the chain of command, so to speak. We are aware on this side of how important that is. As I said, we take very seriously the issue of inappropriate professional behaviour and we support the application of compliance powers as well as the operation of the Professional Services Review scheme.

The bill will amend the Health Insurance Act to create a provision that will require the Chief Executive Medicare, CEM, to waive debts raised against dentists for services provided before 1 April 2010 that had satisfied all legal requirements but had breached section 10(2) of the Health Insurance (Dental Services) Determination 2007. As I said, it will also require the CEM to waive debts for services provided after 1 April 2010 if the dentist can provide evidence that there was an intent to comply with section 10(2) of the determination. Some dentists have already paid CDDS debts to the Commonwealth that fall under this waiver, and this bill provides for those amounts to be repaid to the dentists concerned.

The bill will also make amendments to the Dental Benefits Act 2008 and the Health Insurance Act to support the operation of the child dental benefits scheme, which is obviously a really important scheme. The child dental benefits scheme commenced on 1 January 2014 and provides two- to 17-year-olds who meet a means test with access to up to $1,000 in benefits over two calendar years for basic dental treatment. In my socioeconomic areas, we see a lot of bad dentistry in young people and these measures are needed to ensure the health of their teeth and that they are able to live a decent life. If you have bad teeth, it can lead to all sorts of other health issues and concerns. I have even known of people who have not been able to get jobs because their teeth have been in such bad condition that people did not want to employ them.

The Child Dental Benefits Schedule replaced the Medicare Teen Dental Plan and provides more comprehensive coverage through a greater range of services to a larger group of children. As I said, it is means tested, but, of course, those children really need that sort of help. The child dental benefits scheme formed part of Labor's $4.1 billion dental reform package, which was announced on 29 August 2012. The Child Dental Benefits Schedule replaced the Medicare Teen Dental Plan from 1 January 2014. This program is a really important investment in prevention. We know that oral health in children is the best predictor of our oral health as adults, and this can be of grave concern.

In addition to dental for kids, the dental reform package provides extra funding for 1.4 million additional services for adults on low incomes, including pensioners and concession card holders and those with special needs, to have better access to dental health care in the public system. Just as bad oral health in children can lead to other illnesses and health issues, so it can with adults. It is important that we do what we can to help in that area. There will be more services and more dentists in areas of most need, which are obviously outside the capital cities. Coming from Tasmania, where there is a large rural population and regional population, it is great to hear that. This package was on top of the $515 million announced in the 2012-13 budget, which included a blitz on public dental waiting lists.

I was talking earlier about the oral health of our children, and we know that it has been declining since the mid-1990s. Almost 20,000 kids under the age of 10 are hospitalised each year due to avoidable dental issues. By the age of 15, six out of 10 kids have had tooth decay, which is probably not a good sign of what our nation is doing with regard to dental health and oral hygiene. Further, 45.1 per cent of 12-year-olds had decay in their permanent teeth, and, in 2007, 46 per cent—just under half—of children aged six attending school dental services had a history of decay in their baby teeth. The issue of oral hygiene and dental health is not one that should be taken at all lightly; it is one that we obviously should be supporting and putting money into. Dental providers carry out a range of services for all people, and those services are most important. As I have said, I think this is overlooked quite a lot of the time.

This bill amends the definition of a 'dental provider' to align with the definition under the national law dealing with the registration of health professionals. Part 6, 'Provision of information', allows for information obtained under the act to be disclosed to the minister and department administering the Veterans’ Entitlement Act 1986 if the disclosure is for the purpose of administering the Dental Benefits Act. That is because people may be eligible for dental benefits if they are receiving certain allowances paid by the Department of Veterans' Affairs.

The machinery amendments to the Dental Benefits Act include clarifying provisions related to the disclosure of protected information, allowing the delegation of ministerial powers to the secretary or SES employee of the Department of Health, amending the definition of dental provider and correcting a minor technical error in section 4. It will be interesting to see what sort of impact this has. A longitudinal survey might need to be done with regard to oral dental health and the impact that people having easier access to dentists will have on our society. I know other people wish to speak on this legislation, so I will conclude my remarks.

Senator MOORE (Queensland) (13:11): I am not going to take long in this discussion on the Dental Benefits Legislation Amendment Bill 2014, but I want to speak again on this issue around dental services. Mr Acting Deputy President Bernardi, you would remember that in this place we had considerable debate on the issues around the dental services determination bill in 2007. We also had considerable debate—and it is all on record—on concerns about the full understanding of the responsibilities of dentists involved in that program and claims that there was a lack of understanding and a lack of knowledge of the compliance requirements that were brought into place, because this was the first time that there was such a clear use of the government system for dentists. I remember making statements here about the professional needs of organisations to understand their requirements, particularly when government money was involved, and the responsibilities for people in the profession, the dental profession, and also the government departments to work through appropriately their responsibilities. I also talked about the special link that was available in that legislation, which has now passed, between the referral processes of doctors through to the dental profession to make the link that was in that legislation to ensure that the processes under the dental responsibilities met the special needs of people and that there was a genuine understanding of the need for the dental work to fulfil the requirements of the plan, as we then knew.

On our side of the chamber, we celebrated the first steps towards allowing MBS coverage for dental processes. We celebrated the availability of this scheme, because up until then there had been real concerns in the community about how they could access dental services. There was so much evidence, across the board, on dental health; evidence that was pointed out most clearly, from my point of view, in the Senate Community Affairs References Committee Inquiry into Poverty where we were looking at the whole range of issues which had impact on the community. Consistently, when we had private meetings and when we had public meetings in the community, the issues around dental health came up so strongly.

That led to a range of consultations, negotiations and the development of policy on our side but also from the government, who did listen to the concerns about appropriate dental health and the impact of dental health on people's wellbeing at all ages. Indeed, the issues that were raised through that process of consultation did not limit the needs around dental health to one particular group. It talked about the particular processes for young people, which was then picked up by the Labor scheme that came later about adolescent dental health. It looked at the particular needs of developing dental processes so that people would have timely intervention early in their lives so that they would not have the horrors of exacerbated decay and also malfunction in dental processes, which lead to inordinate pain and inconvenience, which are lifelong.

Another particular group of people that came to see us were age pensioners and people who had had no ability in their own youth to have that intervention, and who, as they grew older, were suffering quite seriously from poor dental hygiene and poor dental health.

There was a welcoming but then, when there was an audit of the scheme at the time, we found that the simple process of making the scheme operate, the compliance issues, were not effectively being fulfilled. When the Department of Human Services did their audit—and I think Senator McLucas mentioned this—there was a high rate of noncompliance with provider reporting requirements which were clearly set out in the act. I know that there is a range of opinion but, if you reflect on what I said in this chamber at the time when we were looking at the changes in the dental scheme, I seriously believe that there is a personal responsibility for professional people and organisations to understand the rules and to work within them. Nonetheless, it was put forward by the then government that there was concern, there was a lack of knowledge and there could well have been an 'inadvertent' misuse of the program. People were unaware of their responsibilities and therefore were paid considerable money by the government for providing services under the legislation and then were found out, in effect, to have had an overpayment.

The bill before us talks about the importance of having a clearly understood waiver so that, when the overpayments are identified, there is the opportunity to put it to the people involved. There was great lobbying and advocating by the Australian Dental Association, as well as by individual dentists who visited most parliamentarians in this place to put forward their cases. There was an agreement that there would be a procedure put in place where many debts would be waived, but there were a distinct number of dental operators who did have overpayments identified and then appropriate repayment plans were put in place.

One of the issues that has come out through this bill, which is for all intents and purposes a bit of a housekeeping bill, was to change the way that the waivers and repayments would operate from what is a standard government procedure, which is the Financial Management and Accountability Act 1997—which we all know is essential reading for everybody. Nonetheless, that piece of legislation spells out how overpayments are identified and how repayments to the government are done. Minister Dutton has actually seen that and believes that this is complex and may cause undue stress and delay and therefore they are placing the procedures within the health department to ensure that that will happen. We have no intrinsic opposition to that. I think it is important to see that we look at the history of where it came from and the delegations that now operate within the health act.

I certainly hope that the amount of work that will be done developing this legislation will ensure that professionals in all areas, particularly the dental profession, will have a greater awareness of their requirements of access to Medicare payments, and will have established a stronger communication link so that there is the ability for people to check out what they are required to do before they enter into a contract—and it is a contract.

This is a contract between professionals and the government to ensure that they appropriately receive Medicare payments. My hope is that, from the problems we have had in the past, the identification has been that, perhaps, communication was not as strong as it should have been. Also there is the clear link and understanding that you just do not get Medicare benefits because you do a service. There are individual responsibilities around the type of service you are providing and what you are required to do. In the previous scheme, that real link between appropriate referrals and the types of services covered by the act did seem to be of some concern around the lack of clarity.

The other element leading on directly from putting responsibility back into the Department of Health is the extension of the professional services review to cover dental practitioners who are involved in providing these services. It is one of those things that is self-evident. The professional services review that now operates in the medical profession allows professional consideration of the behaviour and practices of anyone within the services and, under those professional bodies, allows them the ability to check out if there are any allegations of malpractice or misuse of Commonwealth money. We know that it operates in all medical areas now if people are receiving Medicare payments. There have been some considerations around that.

The community affairs committee had an inquiry into this area about 18 months ago, actually stimulated to an extent by lobbying around Senator Abetz with concerns about the way the PSR, the Professional Services Review, operated. The core principle that came out of that discussion, which was vindicated and reinforced by the inquiry, was that there must be appropriate review. Should there be allegations of any malpractice or change of behaviour, there should be a process where that is able to be considered. This bill, amongst other things, actually ensures that activation of the professional services review, with dentists providing services under the MBS covered by the PSR, and that it is appropriate that that would be covered by this scheme.

In terms of our past experience and the investigations that we have had through the development of the wider dental scheme, we totally support the two elements of, firstly, ensuring that the waiver responsibility is back with the department so that they understand the profession and are able to work with it and, secondly, the PSR. I am not going to take the time of the chamber by talking about the importance that Labor places on an appropriate dental scheme across our country. We have made that commitment on the basis that, if you are looking at the health and wellbeing of Australians, it is absolutely critical that we acknowledge that there are needs around oral hygiene and oral health. We have a highly skilled and well-trained dental profession in our nation. In fact, it is highly regarded around the world for the training we provide. We are able, then, to ensure that we can best link the needs of the community across our whole country, not just in large capital cities, but across the whole nation, with effective and responsive services. In this area, it is absolutely essential that we look at making sure that the workforce is located where the need occurs. I see Senator O'Sullivan across the chamber and I am sure he can confirm that, when visiting regional areas in Queensland, one of the key issues that is raised all the time is access to dental services.

I will put on the record a visit I made to the central western area. I went to several significant regional towns with fully set up dental chairs and a history of having had dental professionals—dental professionals with immediate links to the local schools, the local aged-care sector and the local community. Because of workforce shortages and a reluctance of people to serve in regional areas, those chairs—that equipment, those practices—had been abandoned. As a result, people have to travel long distances to get the basic dental services we all expect, as a right, to be able to access in our own suburbs and towns.

We support this bill. There are a whole range of other housekeeping matters in the bill, but I will not refer to those.

Senator Ryan: Of course you won't!

Senator MOORE: No, I will not. I have put the issues that are of principal concern to me. If Senator Ryan were to check the record of debates on this subject, he would find that I have contributed to most of them—and the issues of credibility and professional integrity have always been central to the contributions I have made.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:24): While I note that the opposition has indicated its support for the Dental Benefits Legislation Amendment Bill 2014, we have had a couple of contributions that were a bit unexpected, given that this time on Thursday mornings is set aside for non-controversial legislation. It is tempting to address those contributions, particularly the bits on the history of dental care in Australia and the importance of dental care. I will just note in passing that it was the Howard government, when the current Prime Minister was the Minister for Health, that first put dental care on the MBS.

However, this bill is about administrative arrangements. It is finely targeted at administrative arrangements. It is not about dental care more generally. I note again that the opposition has indicated its support for this bill and I commend it to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Bernardi ) (13:25): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:25): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (13:26): Labor supports the Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2014. All of us in this place should do what we can to avoid overregulation. It reduces productivity and it hurts jobs growth. Labor has a proud record in government of doing this. It was the Labor government that delivered a single national system of laws governing the maritime sector. This was the biggest maritime reform in a century. It eliminated duplication of laws and reduced complexity.

Through the Council of Australian Governments, COAG, Labor delivered an ambitious reform agenda. In infrastructure and transport, Labor put in place a national maritime regulator, a national heavy vehicle regulator and a national rail regulator. These three national agencies replaced 23 separate state and territory regulators. Labor's changes are expected to save business $30 billion over the next two decades.

The bill before us today follows Labor's reforms and retains the spirit of the national laws. It contains simple amendments to clarify aspects of the legislation based on the experience of its operation. The opposition will be supporting these amendments. They will allow the Australian Maritime Safety Authority to exercise discretion when considering the suspension, revocation or variation of vessel certificates. The bill also includes minor changes relating to the definition of 'defence vessels', clarifies the regulator's functions and allows for subdelegation of powers in some circumstances.

I am very pleased to have the opportunity to speak on this issue today, because it gives me the opportunity to raise some concerns about the government's fascination with red-tape reduction. Some regulations are important for ensuring the health, safety and welfare of working people all over this country. As we have recently gone through a period of privatisation in the areas of gas, electricity and water, there is a need for regulatory compliance so that the market is not just allowed to let rip in areas where workers need some protection

These are some of the concerns I have with the government's rhetoric on red tape reduction, because red-tape reduction goes to regulation and, in many cases, regulation goes to good governance. As Professor Stephen Duckett, Health Program Director at the Grattan Institute, said:

One person's red tape is another person's legitimate protection.

This is especially the case in the maritime industry. We have seen in the maritime industry, on the docks and the wharfs of this country over many years, a lack of regulation, a lack of so-called red tape, a lack of protection for working people in this country. My concern is that the slogans that the coalition comes up with about reducing red tape could leave many Australians exposed to a lack of protection, a lack of support and a lack of a healthy and safe environment when they go to work. These are concerns that I have in relation to the government's proposals on these issues.

When you talk about maritime safety, you always have to remember where we came from in terms of safety in the maritime industry. I remember, when I was a union official in the early 1990s, the significant investigation and inquiry that went on in the parliament under the Hon. Peter Morris. The inquiry report was named Ships of shame. When you turn your mind back to some of the issues that resulted because of a lack of red tape, because of a lack of proper regulation and because of a lack of enforcement, workers were dying in the international maritime industry. But, when you go back to the nineties—it is not that long ago—the economic circumstances that prevailed at the time meant that there was huge cost-cutting going on in the maritime industry. Look at the situation now: you have arguments that you should be getting rid of regulation because it will reduce costs and it will increase productivity. I have never heard a coalition politician on their feet in this place being able to explain what productivity is, because they just mouth the platitudes. They just go on about improving productivity, and then they conflate productivity with cost-cutting—about cutting workers' wages and conditions, and cutting regulation that protects workers when they go to work. That is the sort of increased productivity you hear from the coalition. They relate this to red tape and you see important parts of the control systems in this country pulled apart on this altar of improved productivity when it is nothing more than cost-cutting. This side of the chamber finds that an unacceptable proposition. It is totally unacceptable to just have red-tape reduction—getting rid of important protections for people in this country. When you start cutting costs, safety suffers.

In the Ships of shame inquiry, we saw that the lack of so-called red tape and the lack of regulation at the international level allowed flags of convenience to be the norm in the international shipping industry. We certainly are not arguing that the domestic maritime industry will go down this path quickly in this country, but you always have to be careful that the rhetoric does not have unintended consequences. The rhetoric of red tape reduction—getting rid of checks and balances and supports for working people in this country—is very easy to happen under the rhetoric from the coalition.

We saw with the flags of convenience that ship management and international companies flouted international conventions. They argued at the time that those conventions were merely red tape—that those conventions were regulations that were impediments to productivity and impediments to the effective operation of their business—and that the market should be just allowed to rip. So, while we support this bill, I am pleased to have the opportunity here today to draw attention to some of the consequences if we are not careful and we are not clear about what the implications could be when we remove regulation.

We had ships' masters in the early nineties coming to Australia with crews that they could not communicate with. The ship's master could not speak the same language as the crew, and some of the crews could not speak the same language as each other. We had the situation where communications went down the tube. What happens if you are in charge of a massive carrier bulk ship on the high seas during an emergency and people cannot talk to you? These are some of the reasons you need some red tape. These are some of the reasons you need regulation in a country. You simply cannot trash and sacrifice regulation on the altar of big business demands. You cannot do that. We had crews coming into this country whose quality of training was abysmal. Some of them had no training or they could not communicate with each other. They were just taken off the shore, put on a ship and were supposed to learn on the go. There was no regulation about what the training should be. There was no red tape to make sure that people were safe. This was the experience in the Ships of shamereport. We had false qualifications in the industry. Qualifications were being forged.

There has been, since the Ships of shame report, progress towards dealing with many of these issues. But, if you listen to the rhetoric of the coalition, I am sure there would be some of the extremists—and there are many of them in the coalition—who argue that 'this is simply red tape gone mad', that 'it is regulation gone mad' and that 'the bosses can look after themselves; just trust big business, they will fix it all up'. I come from a background where I have experienced what happens when big business is allowed to operate without proper regulation. I have experienced what happens when red tape, which is really about looking after workers' rights, is removed. I have seen this happen, and I do not think we can go back to that. That is why I am raising, in my contribution, the need—even though we support this bill—to be careful about this approach on regulation. In the 1990s, the Ships of shame inquiry, which was a joint coalition and Labor inquiry, found that there was no red tape in place and there was no regulation in place to make sure that some of these crews were fed. They were denied food on some of these ships, they were bashed up on these ships, because it was a free-for-all. Big business was doing what big business wanted to do. There was no red tape and no regulation applying. So you need red tape and regulation in specific circumstances.

Where red tape and regulation is old and antiquated, then we will have no problem dealing with those issues. When they do not impede the operation of a business, then I question the need to make such a big issue of removing antiquated red tape that does not interfere with anything and is wasting the time of the parliament. Some of these maritime ships had two pay books designed to deliberately deceive. The red tape and regulation was being ignored. There was accommodation that was absolutely atrocious on these ships. There was a lack of washing facilities. The crew could not even wash. I say, if it is a bit of red tape to make sure that someone on a ship can wash, then that is red tape that is worth having. That is regulation worth having. If it is red tape to say that there has to be a healthy and safe working environment, then that is red tape and regulation worth happening. If there is red tape that says that maritime crews have to have a reasonable standard of medical care, in my view, that is red tape that is worth having. These are issues that we have to be careful about.

In supporting the bill, it has given me the opportunity to provide some balance to this argument that all red tape is bad, because all red tape is not bad. I am sure that this afternoon, when we get down to looking at some of the bills that are going to keep us here probably all night, there will be plenty of red tape in those bills. I have not seen the bill to any great degree so far, because it was a secret until this morning, but I am sure that no-one will stand up here and say, 'There will be no red tape in relation to the bills that will be before the Senate this afternoon,' because red tape, protections and regulation are part of a democratic society. I agree that one person's red tape is another person's protections. Protections should always be at the forefront; not an ideology that says, 'All red tape is bad, because the IPA has said it is bad.' The troglodytes in the Institute of Public Affairs say: 'This is bad. Everything will be great if you just let the market rip. If there is no red tape, if there are no protections, the market will look after it and the bosses will look after you. Don't worry; everything's going to be okay, because the market will look after you.' I have never believed that nonsense. I do not think anyone with any common sense believes that. It is only the ideologues on the other side. It is only the extremists on the other side that believe these things. When we are looking at red tape reduction, always be aware that there are two sides to red tape, and one side to red tape is the protection of people's rights, the protection for workers to go to work and come home safe. If that is red tape, so be it. That is an important component of red tape. That is regulation working effectively. We cannot have the extremists in the coalition simply picking away, initially, then ripping and tearing away proper regulation in this country. People will lose their lives if red tape and proper regulation are not there in the area of health and safety.

It was the trade union movement that had to argue with the previous Howard government to actually do something about asbestos. We have had 'ships of shame' full of asbestos coming to this country. All we hear from the coalition is that you must get rid of red tape and regulation. This is ideology gone mad, on the other side. We support this bill, we support getting rid of regulation but we support the rights of workers having decent safeguards through red tape or regulation when required. (Time expired)

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:46): While it is tempting to respond to Senator Cameron's paean for the socialism of Britain in the 1950s and the history of inquiries into international shipping—and indeed his love of red tape!—this bill is in fact about marine safety domestically. I note the Labor Party is supporting it and I commend the bill to the Senate.

The ACTING DEPUTY PRESIDENT ( Senator Williams ): The question is that the bill be read a second time.

Senator Sterle: Mr Acting Deputy President, I looked across at the parliamentary secretary, Senator Ryan, and I thought he was going to make a contribution, not close the debate, and I was listed to speak on the bill.

The ACTING DEPUTY PRESIDENT: The minister has closed the debate on the second reading, but you can always speak on the third reading.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT: Senator Sterle, are you seeking the call?

Senator Sterle: No, thank you, Mr Acting Deputy President.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:47): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (13:48): I am pleased to speak today on the Albury-Wodonga Development Corporation (Abolition) Bill 2014. I was glad to read the remarks of the Independent member for Indi in the other place on this bill. The member for Indi, as the local member for the Wodonga half of Albury-Wodonga, gave a strong contribution to the debate on this bill in the other place. I believe that bears some acknowledgement here.

I am pleased to draw on that contribution in making my remarks here in the Senate this afternoon. The member for Indi drew the attention of avid listeners to parliament and readers of Hansard to a book by Bruce Pennay entitled The Experiment: Imagining the Albury-Wodonga National Growth Centre. In this book, Pennay states:

On its instigation in 1973, the Albury-Wodonga National Growth Centre experiment was hailed as a novel and imaginative project.

It was a pilot scheme that was extended to influence the urban settlement patterns right around Australia. It was a "bold venture", a brave attempt, to solve a longstanding problem. It involved three governments working cooperatively on an "exciting adventure".

Today we have before the Senate legislation to abolish the Albury-Wodonga Development Corporation. Before we vote on this legislation, it is important to take the time to look back at the history and the purpose of the Albury-Wodonga Development Corporation, as the member for Indi did in the other place. When we look at Albury-Wodonga, you have only to look at the Whitlam legacy. That is the reality.

It is something of a coincidence that, in this week, when the Senate began by expressing its condolences following the passing of former Prime Minister Gough Whitlam AC, QC we find before us a piece of legislation that has at its heart the legacy of the Whitlam government. The concept of regionalism and to build significant regional centres was part of the legacy and vision of the Whitlam government from the beginning. Gough Whitlam first raised the idea for the regional development projects in Albury in a speech he gave in Sydney in 1969. He then visited Albury in 1970 for a Rotary conference. I understand that he stayed at the Travelodge that night and later boasted that the speech took him from the Travelodge to The Lodge. It then formed part of his Blacktown campaign speech in 1972, in which he said:

A national government which cuts itself off from responsibility for the nation’s cities is cutting itself off from the nation’s real life. A national government which has nothing to say about cities has nothing relevant or enduring to say about the nation or the nation’s future. Labor is not a city-based party. It is a people-based party, and the overwhelming majority of our people live in cities and towns across our nation.

He went on:

A Labor Government will have two over-riding objectives: to give Australian families access to land and housing at fair prices, and to preserve and enhance the quality of the national estate—

the environment. Then he said:

We will set up a Commonwealth-State Land Development Commission in each State to buy substantial tracts of land in new areas being opened up for housing and to lease or sell at cost fully serviced housing blocks …

Today, the parliament is dealing with the legacy of that 1972 campaign speech. Upon taking government, a new department and a new function for the Commonwealth was established. We had a Department of Urban and Regional Development, with the great Tom Uren as the minister. That started the Albury-Wodonga National Growth Centre Project in 1973, which ultimately became the Albury-Wodonga Development Corporation, on 21 May 1974, with the hope for it to be a model for similar schemes elsewhere. The reform program for regional development produced results through direct grants to local government bodies around Australia. Grant programs included were for flood mitigation, urban renewal, leisure and tourism facilities, and for building sewerage systems in unserviced urban areas.

Under the Department of Urban and Regional Development, the Albury-Wodonga Development Corporation was established on 21 May 1974. Out of this we not only found a vision for Albury-Wodonga but found a Commonwealth government taking responsibility for entirely new areas of policy that the Commonwealth had previously not touched. Today, we not only put down a marker for the great growth that occurred in Albury-Wodonga but also acknowledge that the principles of regionalism and the principles of obligations to people who live in cities and suburbs are something that would be a function of the Commonwealth of Australia.

I note that in The Border Mail on 21 October 2014 Howard Jones wrote that:

Five weeks after man first landed on the Moon, Gough Whitlam proposed something that ultimately turned out to be even harder to achieve — a huge new combined city for Albury-Wodonga.

Jones went on to write that Whitlam:

… started the Albury-Wodonga National Growth Centre project in 1973, four years after raising the idea in a speech in Sydney when he was still the federal opposition leader. On April 17, 1970, he visited Albury for a Rotary conference to expound his theories for regional development, drawing on the views of the then-head of Uncle Ben’s, Wodonga, Dr Henry Nowik.

Time precludes me from going further into the memories of the great Gough Whitlam on this issue. Labor supports this bill, but we have to always remember the legacy of Labor in bringing about regionalism—looking after the regions in this country. We support the bill.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:55): On this occasion, I will agree with Senator Cameron and note the irony in some ways of this bill being introduced into this place in the same week that the condolences were held for the former Prime Minister. I think the Bills Digest came out of the House of Representatives the day after the former Prime Minister passed away. Needless to say, I would probably have a different view of the history of this particular corporation and the expansion of Commonwealth authority into an area for which it had no constitutional authority. I do accept, however, his comments that it was the particular passion of the former minister, Mr Tom Uren. But those days, in many ways, have passed. In that case, I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Williams ) (13:56): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:56): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (13:57): I am pleased to rise to speak on the Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Bill 2014. Social security has been getting a pretty bad rap from the coalition. Trying to attack ordinary Australians who have fallen on hard times, coming after ordinary Australians, is just an absolute disgrace. There is nothing more disgraceful in politics than to watch the coalition attack, through its budget process, the proud history of social security in this country. This is a coalition that is ripping away at the heart of the protections for ordinary people in this country. This is a coalition that does not care about the pensioners. This is a coalition that does not care about decent rights for people in this country. This is a coalition that will pay a heavy price for the lies and the deceit that it has foisted upon this country. This is a coalition that would take away pension rights in this country, that would force people to work until they were 70—to work till they drop.

This is a coalition that is a reprehensible mob. They do not care anything about the future and the future of their electorates. They only care about looking after the people who put the money in their back pockets and hand it over to the coalition for their elections. The people who hand over the brown paper bags in the front of their Bentleys are the people the coalition look after. You only have to look at the legislation that has been brought up in this place. It is legislation that is all about looking after the miners, looking after the banks, looking after big business and screwing ordinary working people in this country. What a shameful mob you are—up there every day after ordinary working people's rights, after the pensions of Australians. That is what you are about—

The PRESIDENT: Senator Cameron, to the chair; not across the chamber.

Senator CAMERON: I apologise, Mr President.

The PRESIDENT: And, Senator Cameron, time has now expired for your contribution. It being 2 pm, we move to questions without notice.

Senator CASH (Western Australia—Assistant Minister for Immigration and Border Protection and Minister Assisting the Prime Minister for Women) (15:15): by leave—I table a document in response to an order for the production of documents following Senate general business notice of motion No. 484 from yesterday.

Senator McEWEN (South Australia—Opposition Whip in the Senate) (15:58): On behalf of the Chair of the Environment and Communications References Committee (Senator Urquhart), I present additional information received by the committee on its inquiry into the management of the Great Barrier Reef.

Senator COLBECK (Tasmania—Parliamentary Secretary to the Minister for Agriculture) (15:59): By leave—I present a government response to a committee report as listed in today’s Order of Business as well as the government's response to reports of the Education and Employment References Committee on affordable early childhood education and care services. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.

Leave granted.

Senator SIEWERT (Western Australia—Australian Greens Whip) (16:00): by leave—I table a non-conforming petition from thousands of students to continue the funding of the Indigenous Tutorial Assistance Scheme to ensure that Aboriginal and Torres Strait Islander students are given the best chance to succeed at university.

Senator COLBECK (Tasmania—Parliamentary Secretary to the Minister for Agriculture) (16:01): I table a revised explanatory memorandum relating to the bill and I move:

That this bill be now read a second time.

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

Leave granted.

The speech read as follows—

FREEDOM OF INFORMATION AMENDMENT (NEW ARRANGEMENTS) BILL 2014

The Freedom of Information Amendment (New Arrangements) Bill 2014 implements the 2014-15 Budget measure, Smaller Government—Privacy and Freedom of Information functions—new arrangements.

The Bill will streamline arrangements for the exercise of privacy and freedom of information (FOI) functions from 1 January 2015. The Office of the Australian Information Commissioner (OAIC) will be abolished. The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.

The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions. Mandatory internal review of decisions of FOI decisions before a matter can proceed to the Administrative Appeals Tribunal will ensure access to low cost and timely review for applicants. The Tribunal will receive a funding boost to assist with processing FOI reviews.

The Commonwealth Ombudsman will be responsible for investigating complaints about actions taken by an agency under the Freedom of Information Act 1982 (the FOI Act). The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity.

The measures in the Bill will save $10.2 million over four years, part of the Government's continuing commitment to repair the Budget.

Merits review of FOI decisions

The OAIC was established by the former Labor Government in 2010 to bring together oversight of privacy protection and access to government information into one agency.

This created an unnecessarily complex system, with multiple levels of external merits review for FOI matters. It also led to duplication in FOI and privacy complaint handling which has contributed to delays in these matters.

The Bill will create administrative efficiencies and reduce the burden on FOI applicants by providing that the Administrative Appeals Tribunal is the sole external merits review body. This aligns with other merits review processes across the Australian Government.

Under the new arrangements, those applicants who wish to seek review of an FOI decision will first be required to seek internal review. If an applicant is not satisfied with the internal review decision, they may apply for full merits review at the Administrative Appeals Tribunal.

The OAIC will endeavour to finalise as many FOI review applications as possible. However, there will be some reviews that are unable to be finalised before 31 December 2014.

Those applicants whose FOI review applications have not been finalised before 31 December 2014 will not be disadvantaged by the new arrangements. The Bill provides for the transfer of applications which have not been finalised to the Administrative Appeals Tribunal. No application or other fee will be payable in relation to transferred applications. This ensures that no applicant who has sought external merits review will be disadvantaged by these changes.

This Bill does not affect the legally enforceable right of every person under the FOI Act to request access to documents of an agency or official documents of a Minister. Nor does it make any changes to the objects of the FOI Act or the matters that agencies and ministers are required to consider in making decisions on FOI requests.

The Bill simply removes an unnecessary and anomalous layer of external merits review for FOI decisions. This will deliver an improved and simplified merits review system for FOI decisions and will realign responsibility and accountability for external merits review of FOI decisions with the process applicable to other government decisions.

FOI complaints

Those applicants who wish to make a complaint about an agency's handling of their FOI application will be able to make their complaint directly to the Ombudsman. This removes the current duplication between the OAIC and the Ombudsman in relation to the investigation of these complaints.

Any unresolved complaints which have been made to the will be transferred to the Ombudsman for completion.

Privacy functions

The Bill also provides for an Australian Privacy Commissioner, as an independent statutory office holder within the Australian Human Rights Commission. The Commissioner will continue to be responsible for the exercise of privacy functions under the Privacy Act and related legislation.

The Government is committed to protecting the privacy of all Australians. The current Privacy Commissioner, Mr Timothy Pilgrim, will remain as the Australian Privacy Commissioner, which will mean business as usual for the Australian Privacy Commissioner and his relationships with business.

The Commissioner and the staff supporting him will be able to seamlessly continue their measured approach to privacy protection, working cooperatively with private sector organisations and government agencies to achieve a high level of understanding and voluntary compliance.

This approach has assisted business stakeholders to view privacy as an important aspect of commercial regulation and a fundamental part of the economic infrastructure that supports business activities.

We are also committed to reducing the size of government and rationalising government agencies. That is why the independent Australian Privacy Commissioner will be housed within the Australian Human Rights Commission. This arrangement will not impact on the independence of the Australian Privacy Commissioner as he carries out his privacy functions, nor on the Australian Human Rights Commission as it fulfils its important human rights functions. The Australian Privacy Commissioner will not be a member of the Commission nor will he subject to its direction.

Separate funding will be appropriated to the Australian Human Rights Commission for its human rights functions and for the Australian Privacy Commissioner's privacy functions. The existing staff of the Office of the Australian Information Commissioner responsible for supporting the Privacy Commissioner will become staff of the AHRC assigned to the Commissioner to support him to undertake his functions.

Conclusion

These institutional arrangements will reduce the size of government, streamline the delivery of government services and reduce duplication. It will mean business as usual for privacy and largely restore the system for the management of freedom of information in place before the establishment of the Office of the Australian Information Commissioner on 1 November 2010.

This Bill makes it easier for applicants to exercise their rights under privacy and FOI legislation.

The DEPUTY PRESIDENT: In accordance with standing order 115(3) further consideration of this bill is now adjourned until 25 November 2014.

Senator COLBECK (Tasmania—Parliamentary Secretary to the Minister for Agriculture) (16:02): I move:

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

Question agreed to.

Bill read a first time.

Senator COLBECK (Tasmania—Parliamentary Secretary to the Minister for Agriculture) (16:02): I move:

That this bill be now read a second time.

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

Leave granted.

The speech read as follows—

SOCIAL SECURITY LEGISLATION AMENDMENT (STRENGTHENING THE JOB SEEKER COMPLIANCE FRAMEWORK) BILL 2014

Today I introduce the Social Security Legislation Amendment (Strengthening the Job Seeker Compliance Framework) Bill 2014.

This Bill will ensure that more job seekers in receipt of income support meet their mutual obligation requirements to attend scheduled appointments with their employment provider.

This will help to promote a more efficient employment services system and enhance the integrity of our social security system.

It has long been a feature of our social security system that unemployed people in receipt of income support are asked to do certain activities in return for that taxpayer funded benefit.

This concept has also received bi-partisan support over the years.

One of the activities that job seekers are asked to do is attend scheduled appointments with their employment provider to discuss job options and to review progress in finding work.

These appointments are not onerous and are designed to maximise the chances of a person moving from welfare to work.

Most job seekers are required to attend an appointment with their employment provider only once a month.

Appointments are generally of short duration and take into account the job seeker's capacity to attend at certain times.

Job seekers are given clear and reasonable notice of the appointments, and are also given reminders of their appointments.

This is done both formally—in person or in writing, including time, date, place, and informally via SMS, phone, or email.

Job seekers are also informed in advance that a failure to attend an appointment without giving prior notice may result in suspension of their payment or the imposition of a penalty.

If a job seeker contacts their provider ahead of the scheduled appointment to let them know they are unable to attend due to a good reason—then no suspension of payment or penalty is applied.

And if it is subsequently found that a job seeker has a reasonable excuse for the failure to attend and the failure to notify ahead of time—then no suspension of payment or penalty is applied.

These are common sense rules in keeping with the types of behaviours and standards expected in the workplace.

However—despite these flexibilities—attendance rates by job seekers at appointments with their employment provider remain unacceptably low.

In the 2012-13 financial year, while 11.6 million compulsory appointments with employment providers were scheduled—a staggering 4.3 million of these appointments were not attended by job seekers.

This is an attendance rate of only 63 per cent and a non-attendance rate of 37 per cent.

Similarly, in the 2013-14 financial year 12.75 million compulsory appointments with employment providers were scheduled—and of these 4.47 million were not attended by job seekers.

This is an attendance rate of only 65% and a non-attendance rate of 35%.

This sheer volume of missed appointments creates a huge red tape burden and additional costs for employment providers.

Instead of helping people with their job search, front line staff end up wasting time trying to contact the job seeker to reschedule and in submitting reports to the Department of Human Services.

All of this extra effort on the part of employment providers could be avoided if more job seekers did the right thing first time by either attending the scheduled appointment or picking up the phone to reschedule ahead of time if they are unable to attend.

This is not a big ask.

Apart from the impost on employment providers, the sheer number of people not meeting this requirement undermines the integrity of our income support system.

In 2012-13, over 238,000 job seekers had at least one participation failure applied by the Department of Human Services for missing a regular appointment or a reconnection appointment with their employment provider.

In 2013-14, this had grown to almost 280,000 job seekers. That is more than one in five of all job seekers who received an activity tested payment at some time during the year.

The Department of Human Services only applies these participation failures after a series of checks and balances—such as whether the person should have been required to attend the appointment, whether they had a reasonable excuse or if the notification of the appointment had been sent to the wrong address.

So it is clear, that there are 280 000 cases each year where both the person's employment provider and the Department of Human Services agree that there were no extenuating circumstances that explains the job seeker's failure to attend.

Keeping the current rules in place which allow this number of people to fail to attend is not fair by those taxpayers who get up every day to go to work and pay their taxes that help to fund income support payments and our employment services system.

Workers are expected to keep commitments—like appointments—in return for their wages and the same sort of standards should be expected of job seekers in receipt of taxpayer funded income support.

In 2011, the former Government introduced legislation that tightened the rules for those job seekers who did not attend appointments.

The then Minister for Employment Participation—the current Member for Adelaide—commenting on the then attendance rate said 'I believe that attendance at appointments can and must improve. This is why we made an election commitment to strengthen the compliance system'

The then Minister also went on to say that 'All Australians on income support should have the opportunity of work—but with the opportunity comes responsibility—and with this Bill we are going to firmly expect that people meet those responsibilities.'

We on this side of the House—when in Opposition—supported these measures as a positive first step towards improving attendance rates.

Unfortunately, while the measures introduced have made a modest improvement to the attendance rate—the larger problem still remains.

As I mentioned, 35 per cent of all scheduled appointments are missed each year and more than one in five of all job seekers who receive a payment in any year have at least one participation failure applied for missing an appointment with their provider.

It is time to make further changes to drive improved attendance rates and reduce the red tape burden and financial strain on employment providers and our social security system.

The Bill will achieve this by introducing stronger incentives so that more job seekers to do the right thing first time round.

Currently, a job seeker who has their income support payment suspended because they failed to attend an appointment can get that suspension lifted simply by indicating they will attendanother appointment.

That is a person can simply say they will attend another appointment—even if they have no real intention of doing so—and still get their income support payment.

Given the sheer number of regular and reconnection appointments that are missed each year—it is clear that the current arrangements are not providing a sufficient incentive for job seekers to do the right thing.

More needs to be done to ensure that more job seekers are attending appointments and not wasting provider's time.

From 1st January 2015, this Bill would ensure that job seekers who have their payment suspended for missing an appointment with their provider -without giving prior notice of a valid reason—will typically only have their suspension lifted when they actually attend another appointment.

This will provide a stronger incentive for job seekers to attend their appointments and remain engaged with their employment provider.

From 1 July 2015, the Bill will further strengthen compliance arrangements by providing that, if a job seeker has had their income support payment suspended for failing to attend a regular appointment with their employment provider—and it is subsequently determined that they have no reasonable excuse for that failure to attend—then they will not be back paid for the period of non-compliance.

This provides a much stronger incentive for job seekers to either attend their scheduled appointment in the first place or to pick up the phone ahead of time, explain why they are unable to attend, and where it reasonable—get the appointment changed.

This is what is expected of people in the workplace if they cannot make it to work and it is only fair and reasonable that a similar standard is applied to those people in receipt of taxpayer funded benefits.

The Bill does not change the rules with regard to reasonable excuses.

The Bill will not impact those whose failure to attend is beyond their control, for instance, where they were taken ill or had an unexpected caring commitment and gave prior notice.

And it will not impact the majority of job seekers who attend their appointments or those who let their provider know in advance if they genuinely cannot attend.

As is the case now, job seekers with a reasonable excuse will not have the suspension or penalty applied if they gave prior notice.

In addition, employment providers will remain able to exercise discretion in when they report a failure to the Department of Human Services.

The Bill will not remove any of the current safeguards in the system that are designed to ensure that vulnerable job seekers do not incur penalties inappropriately.

Other amendments

The Bill will also make changes to provisions that allow job seekers who are 55 years or older and have a full time mutual obligation requirement to meet that requirement just by undertaking part-time voluntary work or paid work.

With an ageing population, it is important to encourage older people to continue to participate in the workforce, both for the good of the economy and so that they themselves continue to enjoy the benefits of working.

The Australian Government believes it is vital we increase mature age workforce participation, and through the Restart programme we are providing strong financial incentives to employers of up to $10,000 to employ an eligible mature age worker.

Yet the current legislation effectively allows some job seekers to become parked on income support at 55 years.

This Bill will introduce a provision that will allow cohorts of job seekers who are specified in a legislative instrument to be precluded from these provisions.

These job seekers would continue to participate in employment services and will be required to look for full-time work.

For example, it is intended that job seekers aged 55 to 59 years old who would currently be in Job Services Australia would be specified in the instrument.

The Bill also makes minor changes to broaden the existing delegation power under social security law to include regulations or other instruments made under the social security law.

The main impetus for this amendment relates to recent legislative instruments for the Job Commitment Bonus, which contain Secretarial powers that will need to be exercised from 1 July 2015.

Conclusion

The Australian Government is committed to building a more efficient and effective employment services system that helps more job seekers into work.

The Government is also committed to ensuring the integrity of our income support system so that is affordable and sustainable over the long term.

In order to do this, we need a strong job seeker compliance framework that includes appropriate incentives and sanctions for job seekers.

While the previous Government's changes resulted in a modest improvement—it is well short of what is needed.

This Bill builds on the changes made in 2011 by introducing new incentives to drive a more widespread change in job seeker behaviour.

The Government is determined to reduce the number of missed appointments each year so as to reduce the red tape burden and costs on employment providers.

The Government does not consider it acceptable that job seekers miss nearly 4.5 million appointments every year when it is a simple task to pick up the phone and reschedule.

The Government does not consider it acceptable that more than one in five of all job seekers in receipt of payment each year have at least one participation failure applied for missing an appointment with their provider.

These figures show that the problem Labor tried to resolve in 2011 persists and that further change is needed if we are to see a significant reduction in these numbers.

The changes proposed will provide stronger incentives for job seekers to take responsibility and take appropriate action in the first place.

This is the sort of respect and courtesy expected in the workplace and it is only appropriate that job seekers treat their employment providers the same way.

All the existing rules with regard to reasonable excuses and protection for vulnerable job seekers remain in place.

Recently, the Government announced its proposed model for a new employment services system.

The Government is investing $5.1 billion over three years in a new model that is designed to drive stronger performance and better outcomes for job seekers.

The Government is committed to reducing red tape for employment providers so that they have more time to spend on what they do best—namely helping job seekers with finding and keeping a job.

This Bill will markedly improve attendance rates at employment provider appointments and reduce the costs and impact for employment providers, whilst also maintaining taxpayer confidence in our social security system.

I commend the Bill to the House.

The DEPUTY PRESIDENT: In accordance with standing order 115(3) further consideration of this bill is now adjourned until 24 November 2014.

Senator COLBECK (Tasmania—Parliamentary Secretary to the Minister for Agriculture) (16:03): I move:

That these bills may proceed without formalities, may be taken together and be now read a first time.

Question agreed to.

Bills read a first time.

Senator COLBECK (Tasmania—Parliamentary Secretary to the Minister for Agriculture) (16:03): I move:

That this bill be now read a second time.

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

Leave granted.

The speeches read as follows—

OMNIBUS REPEAL DAY (SPRING 2014) BILL 2014

The Abbott Government is getting on with doing what we said we would do, cutting $1 billion in unnecessary and costly red and green tape each year.

As part of 2014 Spring Repeal Day, ministers and parliamentary secretaries from six portfolios will introduce 11 bills that are deregulatory in nature and will deliver additional, significant compliance cost savings.

Together this bill (the Omnibus Repeal Day (Spring 2014) Bill 2014), and the Amending Acts 1970 to 1979 Repeal Bill 2014 and Statute Law Revision Bill (No. 2) 2014, which I will also introduce, and the Spent and Redundant Instruments Repeal Regulation 2014 (No. 2), which I will table, are whole-of-government initiatives that repeal nearly 1,000 pieces and more than 7,200 pages of legislation and regulations.

This is in addition to the bills that were introduced as part of the 2014 Autumn Repeal Day, which repealed over 10,000 pieces and 50,000 pages of legislation and regulations. This brings the total, net compliance savings for individuals, businesses and the not-for profit sector to $2.1 billion, which is more than double the Government's annual red tape reduction target.

The Omnibus Repeal Day Bill itself contains 26 deregulatory measures from across nine portfolios that are more appropriately contained in an omnibus bill than in individual stand-alone bills and have a compliance cost saving of $1.4 million.

The Bill abolishes bodies, repeals spent and redundant provisions and acts, and streamlines processes.

Abolished bodies

In addition to the 75 bodies repealed since the election, the Bill abolishes three bodies:

the Product Stewardship Advisory Group;

the Oil Stewardship Advisory Council; and

the Fishing Industry Policy Council.

The Product Stewardship Advisory Group was created in December 2012 to advise the Minister for Environment on a list of classes of products that should be accredited or regulated under the Product Stewardship Act 2011, but the Department of the Environment already consults industry on the list on an "as needs" basis. For example, in 2014-2015, after consultation with industry, end-of-life batteries, end-of-life air conditioners and refrigerators with small gas charges, and various types of paint and packaging were included on the list. The purpose of this statutory body is better fulfilled by the Department and consequently, the body will be abolished.

Similarly, the Oil Stewardship Advisory Council will be abolished, as the Department of the Environment is better placed to consult with industry on an "as needs" basis in relation to product stewardship arrangements for oils and the recovery and recycling of used oils under the Product Stewardship (Oil) Act 2000.

The Fishing Industry Policy Council is a ministerial advisory council in the agriculture portfolio that has not been convened since the Fisheries Administration Act commenced in 1991. The purpose of the Council was to consult and advise on matters affecting the industry, but other bodies, including fisheries management advisory committees, better fulfil this purpose. This repeal is supported by the Review of Commonwealth Fisheries: Legislation, Policy and Management, which was published in December 2012.

Spent and redundant acts

The Bill also repeals spent and redundant provisions and acts.

Examples of spent and redundant provisions that will be repealed include:

obsolete provisions of the Rural Adjustment Act 1992 relating to the Rural Adjustment Scheme and the Farm Business Improvement Program, which, following the 2008-09 national review of drought policy and extensive stakeholder consultation over the past five years, have ceased and have been superseded by new approaches to providing farm support, including the farm household allowance;

consultation provisions in the Broadcasting Service Act 1992, the Interactive Gambling Act 2001, the Radiocommunications Act 1992 and the Telecommunications Act 1997, which are duplicated by the Legislative Instruments Act 2003. These specific consultation provisions are considered unnecessary as section 17 of the Legislative Instruments Act requires a rule-maker to be satisfied that appropriate and reasonably practicable consultation has been undertaken prior to making a legislative instrument; and

various social security payments from the Social Security Act 1991 and various veterans' payments under the Veterans' Entitlements Act 1986, including one-off payments where the last test date for the payments has long passed and people are no longer able to qualify for the payments.

Examples of spent and redundant acts that will be repealed include:

The Home and Community Care Act 1985 (HACC), which was made redundant in the context of the Intergovernmental Agreement on Federal Financial Relations of 2008. Since then, there has been a separation of roles and responsibilities in relation to HACC in all states and territories, except Victoria and Western Australia, where negotiations continue. Repealing this legislation is consistent with the Government's commitment to remove redundant legislation and will not impact on the Victoria or Western Australian governments or HACC providers in these states, which remain governed by the HACC Review Agreement; and

the Papua and New Guinea Loan (International Bank) Act 1970, which relates to a guarantee of a 1973 loan to PNG that matured in 1994 and that the Bank for Reconstruction and Development has confirmed has been repaid in full.

Together with the Amending Acts and the Statute Law Revision, this Bill will repeal over 650 Commonwealths Acts.

Streamlining processes

The Bill also streamlines processes by, for example:

modernising publication requirements for the Australian Communication and Media Authority under the Broadcasting Services Act 1992. ACMA will no longer be required to publish a notice in the Commonwealth Gazette when determining, varying or revoking a program standard, but instead, must publish a notice both "on the ACMA's website" and "in one or more forms that are readily accessible to the public". These amendments will provide ACMA with increased flexibility to choose a method of publication that is most appropriate to reach its target audience and will better alert stakeholders to regulatory change;

no longer requiring fuel producers and suppliers who (under the Fuel Quality Standards Act 2000) already report certain information on a monthly basis to the Bureau of Resources and Energy Economics for the compilation of the Australian Petroleum Statistics, to report that information on an annual basis under the act as well. The Australian Petroleum Statistics provides monthly national and state petroleum statistical information about the sales of petroleum products; exports and imports of petroleum products and crude oil; production of crude oil and condensate; refinery input and output; and stocks of petroleum products. As such, the requirements under the act can be repealed; and

amending the Aged Care Act 1997 so that aged care providers, who are currently required to notify the Department of Social Service of changes to key personnel within 28 days, will instead only have to notify the Department of changes that materially affect the provider's suitability to provide care.