The PRESIDENT (09:31): I remind senators that the question may be put on this proposal at the request of any senator. There being none, we shall proceed to business.

Senator LUDLAM (Western Australia) (09:31): It does not give me a great deal of pleasure to rise to speak to the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, but I want to congratulate my colleague Senator Whish-Wilson for bringing this bill forward. It still leaves me somewhat speechless that behind the scenes the Australian executive—through our trade minister and senior trade bureaucrats—are negotiating a treaty that would see Australia effectively subordinate state and national law to global corporate trade law. What this bill seeks to do is take on one element of the Trans-Pacific Partnership, which is being negotiated in secret as we speak and which, depending on which rumours you believe, may be as close as two or three weeks away from being signed and then presented to this parliament. This is as a trade agreement being signed under cover of total darkness. Isn't it interesting that when the global community gets together to negotiate difficult and complex environmental agreements that happens out in the open? The negotiators from various parties trying to hammer out climate change agreements have to do that in open forum. Sure, there are deals done in back rooms and all the usual things that go on, but everybody knows what it is that Australia would be potentially signing up to. When it comes to global trade agreements, not even the minister necessarily knows.

I think that the first thing that we need to get very clear about when we consider the Trans-Pacific Partnership is that this is not a free trade agreement in the sense that we are used to. It is not even being negotiated between sovereign governments. It is actually being negotiated between large corporate entities in various sectors, and those corporations—whether big pharma, rights holders, the biotechnology industry or agriculture; take your pick—are then handing negotiating positions to trade negotiators in various countries and having those positions hammered into a text. This is an agreement being hammered out by global corporations in their benefit. It is an investors' rights agreement; it is not a free trade agreement.

We only know the little that we know about the actual text of the Trans-Pacific Partnership because whistleblowers have leaked draft chapters of the text—two iterations of the IP chapter and one iteration of the chapter relating to environmental protection—to the WikiLeaks website. While that organisation has been hammered from all quarters, it has never been proven to be more important than now as the place where we can go to find out exactly what is being done in our name.

So I congratulate Senator Whish-Wilson for bringing forward this very targeted bill. It obviously does not go to the entire scope of the Trans-Pacific Partnership, because nobody will tell us exactly what that is, but it does go to the very specific notion of investor-state dispute mechanisms—one of those acronyms that might make your eyes glaze over, until you realise that what it allows to happen would be for multinational corporations to sue sovereign governments. This parliament considers itself sovereign, and I know from personal experience that the mob at the Tent Embassy and around the country—traditional owners—would take very strong issue with that. The business of sovereignty in this country is probably the most important piece of unfinished business for us to confront. But the fact is that, from the prayers that were just read in, you would assume that those from all sides of this parliament come in here charged with making and amending laws and providing good governance in the interests of everyone across this continent. But what happens if the laws that we pass in here are found to be offensive to the profit-generating activities of corporations on the other side of the world? The Australian government—as is actually occurring, although I am not sure many people are aware of it—could be dragged into a tribunal of unelected foreign trade bureaucrats, sued and forced to amend the affecting regulation if it impinges on the profits of a company on the other side of the world.

It sounds insane, but that is in fact precisely what is being negotiated behind closed doors by the Australian government and, when they were in government, by the Australian Labor Party. One of the things that I hope that Senator Carr or whoever speaks on behalf of the Labor Party will do when they are given the opportunity is put some cards on the table and make it very clear where the ALP stand. My understanding is that they would be in support of Senator Whish-Wilson's bill. When they were in government, I think they did have form in opposing investor-state dispute mechanisms that would allow state or federal governments to be sued by corporations who found themselves offended, but it is not at all clear where they stand now. So that is another reason why I would like to thank Senator Whish-Wilson for bringing this debate forward today.

Professor Joseph Stiglitz, who is a Nobel laureate in economics and somebody who spends a fair bit of time thinking about these things, said the following:

The TPP proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible.

The investor state dispute resolution mechanisms should not be shrouded in mystery to the general public, while the same provisions are routinely discussed with advisors to big corporations.

None of this is being done in the national interest. This is an agreement being hammered out in the corporate interest. If somebody as esteemed in his field as Professor Stiglitz is of that view, we should take that very, very seriously.

We are fortunate, as I said to those staff, campaigners and journalists in the publishing organisation WikiLeaks, that they have had the bravery to have stayed in business despite the extraordinary persecution that has been meted out to them so that we do have some sense of what is in the IP chapters. There are some very specific concerns. I want to concentrate today mostly on an area that is very dear to me: areas around freedom of information, freedom of speech and digital rights, which are placed explicitly under threat by what we find contained in the IP chapter of the Trans-Pacific Partnership and also by what happens when you bring investor-state dispute mechanisms to bear on some of these issues. A lot of damage was done when Australia signed the Australia-US Free Trade Agreement, and I think it has been government policy to try to avoid, if possible, forcing any amendments into domestic law as a result of the IP chapter. It is not at all clear whether that is actually the case. We may be faced with a bill which we will be told, on a 'take it or leave it' basis, that this parliament has to pass.

I would also say, for those who may be following this debate from outside and may be a bit confused by the government's rhetoric of due process, that we have the treaties committee, which is designed to evaluate mechanisms like the TPP. I served on the treaties committee for 5½ years—nearly six years. That committee will not get a copy of the Trans-Pacific Partnership until after the government signs it. And while the committee, in my experience, does apply a very critical eye to these things, the government is not bound to accept any of its recommendations. The treaties committee will do the best that it can, but the agreement will already have been signed—trade ministers' and prime ministers' signatures will already be on the document—by the time Australia's accountability and oversight mechanisms get the chance to take a look at it. And then it will be a case of this parliament being told—effectively with a gun to its head—that it has to pass the enabling legislation to bring some of these provisions into force. What an utterly backwards and antiquated process for dealing with such an important issue.

So, we have already done a certain amount of damage in Australian law. We effectively imported some of the worst aspects of US IP law, without their protections. The US has fair-use clauses, which mean that you cannot be prosecuted under US intellectual property law for doing stuff that is quite clearly not impinging on profits—commercial-scale piracy and that kind of stuff. In Australia the situation is very much unclear, and it appears that the Trans-Pacific Partnership, from what we know of the IP chapters, will make that situation much worse. And that is my principal question of what the rush is in bringing in mandatory data retention legislation—not necessarily so that the Federal Police can go and prosecute people who are found to be file sharing but so that rights holders from the US and elsewhere can go and trawl the metadata records of your teenage kids and send them threatening legal letters and the threat of gargantuan fines unless they pay up, or lengthy court cases unless they pay enormous fines. That is the kind of world that we are potentially stepping into here.

The document as it stands contains disproportionate and inappropriate enforcement provisions. It is all about enforcing the rights of rights holders, most of them from overseas, and there is nothing at all about public interest protections. Just to give you one example, a couple of years ago the Australian Law Reform Commission, partly in response to some of the damaging provisions that we embedded in Australian law after the Australia-US Free Trade Agreement was brought about, conducted quite a detailed inquiry into the copyright regime that prevails here in Australia. One of the recommendations they made at the time was to bring fair-use provisions—to effectively import some of the protective measures that exist in US law. We have the punitive stuff; we do not have the protective provisions.

And the fact is that if we were to now do so—if we sign up to the Trans-Pacific Partnership, which then embeds all kinds of property rights that did not exist before, for the rights holders—if this parliament then decided to do as the Australian Law Reform Commission recommended and institute a fair-use regime, that could be struck down by unelected trade bureaucrats in a tribunal, and the Australian government might choose to not even contest what would likely be a very expensive and extensive arbitral process. So, it may be that Attorney-General George Brandis, who is quite clearly listening only to the rights holders, does not even decide to contest it. It is that chilling effect on domestic legislation that is such an important and terrifying part of what this government is negotiating behind the scenes. And it looks like extension of copyright terms is in the agreement as well. That effectively just takes material out of the public domain for decades. It makes the work of cultural institutions and collection agencies that much harder, and it robs us of our own culture. 'Copyright term extensions' sounds arcane, but basically it just means all this rich cultural material simply going dark, archival institutions not even being able to digitise or make copies of material that in analogue form is degrading or being lost.

So, we have a very significant problem, and it is one that this parliament will not be able to address until it is far too late. I think one of the simplest things we could do is bring forward this bill for a vote today and pass into Australian domestic law protections against any Australian government signing us up to investor-state dispute mechanisms. That is the thing to do if you are concerned about fracking, if you are concerned about advertising tobacco products in places where kids can see it, if you are concerned about a ban on uranium mining, for example, or any of those issues where communities come into collision with powerful corporate interests, whether it be tobacco, big pharma, genetically modified organisms in our food, or the fracking industry—take your pick. Anywhere that these major collisions between the corporate interest and the public interest are underway, these very same corporations are seeking that power to sue us, to sue this parliament, to sue state parliaments.

Nobody on the government side of this chamber will make eye contact this morning because they have not read the agreement either. They have no idea what is in it. They just hear from our trade bureaucrats: 'It's fine; we're looking after the national interest. It's a free trade agreement like nothing you've ever seen before.' Well, at least that part is true.

But we owe it to ourselves and to our constituents, and to the future flexibility of this legislature to be able to do its job, to protect ourselves from predator capitalism and from these corporate interests, unelected, on the other side of the world, who would like nothing more than to subordinate the law-making power of this chamber and the other place to their own interests. All you would need to prove—and not even really prove; all you would need to be able to show—is your future potential profits in fracking underneath a residential subdivision or farmland, your future potential profits in opening up a carcinogenic uranium mine or your future profits in being able to track down and prosecute teenagers BitTorrenting stuff that they cannot get any other way, to be able to sue a government, to sue this parliament.

So I hope that we will see a measured, intelligent, evidence based debate on this this morning. I hope that the Labor Party will come clean with the Australian population about what its policy actually is. We will be listening beyond words, and we will be looking for a voting intention. And I hope the government might want to stand up and maybe even table a draft of the Trans-Pacific Partnership Agreement. That is not a serious expectation, but how about it? If this document is so benign, if it is in the public interest, if it is going to lead to a massive increase in GDP, if it is going to be a huge benefit to our agricultural sector or whoever else you think you are out there negotiating on behalf of, then put it into the daylight. Let us see the document. Let us see what is being negotiated in our names behind closed doors.

This bill should pass into law. It will not solve many of the issues contained in the Trans-Pacific Partnership, if this government is so reckless as to sign on. We will have to fight that through this parliament and in the community. But, once these agreements are signed, they are perilously difficult to unravel. They are impossible to wind back—because we will have granted property rights effectively across all of our collective futures to these corporations that only care about property rights and the profit motive.

It is our job, I think, to protect the public interest, not the commercial interest and the corporate interest. Our job in here today is to protect the public interest. So I look forward to a resolution of this matter so that we can send this bill to the other place for assent and protect ourselves from making potentially one of the most reckless and dangerous mistakes any parliament could make, which is to handcuff itself from its future legislative obligations to the people of this country.

Senator CANAVAN (Queensland) (09:47): I must be guilty! Apparently we are all beholden to corporate interests and corporations. I do not know if the strings are visible to people today, but I am just a puppet, apparently, for corporate interests. It is all based on conspiracies. It reminds me—there was a great movie, Team America, and one of the characters in that movie was asked to explain their claims about corporations. They said, 'Oh, yeah, well, corporations are out there, and they do corporationy things, and they go and make money.'

There is no evidence here at all. There is no evidence. And I have not just sat through and listened to Senator Ludlam's speech. I have read Senator Whish-Wilson's first contribution, his second reading speech, and also flicked through Senator Di Natale's speech, and there is no evidence. They have provided no evidence at all. They have only relied on base conspiracy theorists. That is where the Greens are ending up right now. They are relying on conspiracy theories rather than evidence. If these things were so bad, we would have some evidence of their ill effect. We would have some ill effect, because—

Senator Siewert interjecting—

Senator CANAVAN: Well, you are putting this bill up. And the requirement is on people bringing a bill to this chamber to provide evidence of why we should put it in place. We should not put legislation in place where there is not an identifiable problem that needs to be fixed. I think we can all agree on that. That is why we should pass laws in this place: to fix a problem that exists. Now, where is the problem?

We have already four FTAs with ISDS provisions in them. We have 21 bilateral trade agreements, bilateral investment agreements, with ISDS provisions in them. Some of those agreements go back 25 years. If there were problems with these provisions they would have manifested themselves. We have agreements with Singapore, Thailand, ASEAN and New Zealand, all with these provisions, but there are no problems. I will not name the 21 countries.

Over those 25 years—and this is something none of the Greens senators have mentioned—how many cases do you think the Australian government has been subject to, under these provisions? Senator Whish-Wilson, you probably know. How many cases?

Senator Whish-Wilson: Why don't you ask the Productivity Commission?

Senator CANAVAN: One case. I will get to the Productivity Commission. And that case has not even been resolved yet. This is a well-known case brought by Philip Morris on plain-packaging regulations. I will get to the international evidence, too, Senator Whish-Wilson.

Senator CANAVAN: The Productivity Commission has been verballed a little. I note that some of the Greens senators have taken to quoting the Productivity Commission, saying that we should not include these provisions in ICS agreements. Let us read the whole quote of the Productivity Commission.

Senator Colbeck: Selective quotes!

Senator CANAVAN: I would not expect the Greens to do selective quoting, but there is a first time for everything. This is exactly what the Productivity Commission said:

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.

I do not dispute that view. But the Greens always leave out that little bit—it is only those bits that provide substantively greater procedural rights. That has not happened in any of these agreements. If it had, we would have seen that evidence.

I listened to Senator Ludlam earnestly worrying about how this provision could stop us dealing with fracking, and I think uranium mining, and all these other things. If you read the Korean FTA that we have only just signed, chapter 18 deals with the environment and these issues that Senator Ludlam raised. The very first article, 18.1, in that chapter says:

Recognizing the right of each Party to establish its own levels of environmental protection and environmental development priorities, and to adopt or modify accordingly its environmental laws and policies, each Party shall ensure that its laws provide for and encourage high levels of environmental protection and shall strive to continue to improve their respective levels of environmental protection, including through such environmental laws and policies.

There are no restrictions against a country acting to protect its environment under the Korean FTA or under any of our other bilateral investment agreements. The Greens have quoted from none of these ISDS agreements to prove otherwise.

Senator Whish-Wilson also raised the point about international evidence. It is true, internationally there is much more experience associated with ISDS clauses. There are, across the world, 2,400 bilateral investment treaties in place. Of those bilateral investment treaties, 90 per cent have not had a single investor claim under them for a treaty breach. Fewer than 10 per cent of these 2,400 agreements have ever been triggered, even once. I did not hear Senator Ludlam say this, but sometimes people claim that there has been a surge in ICS claims.

There has been an increase. I do not have the numbers of the increase in claims here, but the key point to make is that these increases are proportional to the amount of outward foreign capital investment in the world. I am not sure if I am allowed to use props, but there is a graph from a report I read this morning that shows, very clearly, that the number of claims—sorry, I do have the figures here—have risen to about 600 a year now we are averaging in ISDS claims. But that is directly proportional to the increase in foreign direct investment across the world. It is a very good thing that we have more foreign direct investment. It has allowed economies, particularly developing economies, to increase their growth considerably over the past 50 years. When you think about—

Senator Whish-Wilson: Why did you leave out the US free trade agreement?

Senator CANAVAN: I will take that interjection, Senator Whish-Wilson: why did we leave out the US free trade agreement? Because we did not need it with the US. We on this side believe we should evaluate these things on a case-by-case basis. Oils ain't oils, Senator Whish-Wilson; through you Mr Deputy President. We should evaluate these things as we see fit. We do not need it with the US because both Australia and the United States have very strong protections against property rights. There was no need for it. So let us look at it on a case-by-case basis. Before I was interrupted, I was talking about foreign direct investment. In 1959, the global stock of FDI was just US$60 billion—not a lot of money at all in the context of the world economy. But today it exceeds $25 trillion. That is a massive growth, and it is a very important growth because it has allowed, particularly, countries which are poorer and which lack capital to access capital from overseas countries. And one of the reasons it has been allowed to grow is thanks to these investment treaties, because they give investors—largely in developed countries, because that is where the capital is—the protection and the rights to make sure that it is—

The DEPUTY PRESIDENT: Order! Senator Fawcett on a point of order.

Senator Fawcett: I rise on a point of order: standing order 197, Mr Deputy President.

The DEPUTY PRESIDENT: I can say that interjections which are not actually disrupting the debate are sometimes tolerated by the chair, particularly if they facilitate the exchange of views and arguments in a debate. However, if Senator Canavan does seek the protection of the chair, I will certainly provide him with that protection.

Senator CANAVAN: I am new to this, so perhaps I should. But look, I am quite enjoying it and I think that the Greens senators are enjoying it, so let us continue. I will let you know, Mr Deputy President, if my position changes in that regard.

As I was saying, these protections have been very important to facilitate that growth in investment. Prior to these protections coming into place, it was quite common for governments, particularly in developing countries, to expropriate property or to nationalise property, and to thereby take away the investments that foreign countries had made. Indeed, according to some evidence presented by the United Nations in a paper that I read this morning, in the 14 years prior to the entry into force of the first bilateral investment treaty, there were 875 government takings of foreign-investor property in 62 countries, for which there was no effective remedy. International law at the time provided very few protections for investors in those cases. It meant, of course, that there was a chilling effect on that foreign investment, and that many people would not invest.

I support foreign investment, particularly on the global scale. It is very important. And I do not understand why the Greens are, seemingly, so anti this—because, in other instances, the Greens are very cosmopolitan and very multicultural, and that is a fantastic thing. We should seek to have a world that shrinks, and becomes smaller, and in which we tighten our relationships with each other. Investment certainly does that. Trade helps to build relations; trade helps to make sure countries stay friendly with each other. But investment does it even more; when you buy something at the shop, you have a relationship with the shopkeeper, but when you invest in his business, you have a permanent relationship. We should seek to encourage that between countries. These treaties and agreements have also allowed us to move away from what was sometimes called gunboat diplomacy. That was a regrettable period in American history but, many times, the US government—in the 19th century in particular, and into the 20th century—used its military force to ensure that its investors were protected and that its trade rights were maintained. But I think we would all agree that that was not the right way to go about things. These new treaties have allowed investors—from the US, but actually more from Europe; the evidence is that European investors have been the biggest users of these clauses—protections, without the need to resort to governments offering military threats or, in the worst cases, military interventions. It is much better that we should jaw-jaw rather than war-war. Of course we are going to have disagreements through these agreements, and sometimes we might not get the best results we would like—although, as I said earlier, that has not happened to Australia yet. But it is much better that we resolve these disputes through a legal process rather than a more direct and violent one.

I also just want to go to some of the evidence in the international jurisprudence, and it goes to some of the points Senator Ludlam was making that somehow these provisions undermine the ability of governments to put in place environmental or health protections. In fact, that is not true at all when you actually look at the jurisprudence. Under the NAFTA—the North American Free Trade Agreement between Canada, the United States and Mexico, which includes an ISDS clause—there was a case brought by Chemtura, a chemical company. It brought the Canadian government to court. The investor challenged Canadian pesticide regulations, but the tribunal in this case ruled against Chemtura on all claims, and the panel expressly recognised Canada's right to make scientific and environmental regulatory decisions. There was another NAFTA case, called Methanex v United States. Again, the tribunal dismissed all of Methanex's claims of discriminatory treatment and expropriation, noting:

… as a matter of general international law, a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects … a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor contemplating investment that the government would refrain from such regulation.

Again, there are well-known protections both in ISDS agreements and in general trade law that allow governments to regulate for the public good.

But that is not to say that these agreements have been without effect. They are not completely timid. These agreements do offer protection, and they have in fact offered protection to Australian investors, because what is often lost here is that it is a two-way street. While these agreements do, of course, protect overseas investors in Australia, they also protect Australian investors overseas. Recently there have been two cases of Australian companies making use of ISDS clauses. In November 2011, a tribunal awarded White Industries Australia Limited, which is an Australian mining company, compensation from the Indian government for violating the India-Australia agreements. There was another case in 2011 where an Australian copper company, Tethyan Copper Company, formally commenced ISDS provisions against the government of Pakistan. In December 2012 Planet Mining, another Australian company, requested that the government of Indonesia consider a claim under a clause in that international agreement. So it is important that our investors and our companies have the protection of these agreements.

I think that property rights should be something that we try to uphold and protect. I am not necessarily surprised that the Greens do not put as high a price on the protection of property rights as other members in this chamber, but we do have international agreements that cover human rights, providing protection against torture and covering other internationally recognised rights issues. Property rights are extremely important as well, and the protection of property rights goes back right to the start of the Enlightenment and the Declaration of Independence in the United States. It is enshrined in our Constitution as well: the government must give just compensation where it acquires property. But we should make sure it is enshrined in these agreements as well, because sometimes courts can look more fondly on domestic investors than they do on foreign investors. We should seek that the same kinds of protections that we think are right and proper in our Constitution and that exist in other constitutions, such as the American government's, be similarly recognised in this agreement.

One reason I think the Greens are promoting something like this is that they do not really believe in that. They do not really believe that property rights should always and everywhere be protected, that property rights are on a par with other types of rights and that governments should not be given licence to simply take property from people without due compensation.

There is a particular issue in Queensland that has been longstanding Greens policy, and it will be detrimental to regional areas and the farming community. If the new Labor government in Queensland seeks to reintroduce tree-clearing laws into that state—as they have promised to do—I bet you they will not offer a cent of compensation to farmers. Farmers previously had the right to clear property on their land to develop it, to make it have value, and that value was embodied in the price they paid for the property. The price they paid for a property included a right to clear the trees on their land, to develop the land, to put irrigation in, to put better pastures in, to put more head of cattle on it and to make more money.

That was changed almost 15 years ago in Queensland by the former Labor government. It introduced these laws that stripped all of those rights away from farmers. Perhaps some greater protection did need to be put in place, but compensation should have been given. Compensation should be given, in this place, with the powers that we have, because sometimes these debates are presented as though governments are weak, timid and vulnerable institutions that are beholden to corporations, when that is not the truth. We are very powerful. When we use those powers to take things from people, particularly from small businesses and farmers, we should have the guts to stump up with the cash to compensate for that taking of rights.

If we in this chamber had tried to pass the kinds of laws that Queensland had, there possibly would have been a claim under section 51 of the Constitution for farmers. But the Queensland government is not bound by those provisions in our Constitution, unfortunately. In the United States they are. It is the fifth amendment, I think, where due process must be followed for the taking of property. That does bind American state governments, but it does not here in this country, unfortunately. These provisions are something that go to the heart of what we on this side of the chamber believe. Property rights should be protected; we as governments should not abuse our powers by taking from those who are weaker and more vulnerable than us.

As I said to an interjection earlier, we on this side of the chamber do not insist that all trade agreements have an ISDS clause. As was noted by Senator Whish-Wilson, in the US free trade agreement we did not put that in place. In the Korean free trade agreement we put many more additional protections than have previously existed in ISDS clauses, to ensure that governments do have the power to regulate for the general public good and for order.

There is some limitation or shortcoming in the way this bill has been drafted. As it has been drafted, it will stop us from entering into all agreements that have an ISDS clause, even if that agreement exempted us from those clauses. There could clearly be a case—even in the TPP—where we would be exempted from some obligations. That would fall foul of this particular bill, if it were passed. So I do not think it is drafted in a way that we should pass it in this chamber. It would unreasonably restrict the role of the executive government in negotiating and signing agreements that promote trade for Australians and protect their investment rights.

Senator MILNE (Tasmania—Leader of the Australian Greens) (10:08): I rise today to say that this Australian parliament should ban investor-state dispute resolution clauses in any agreement that Australia signs. It is as pure and simple as that.

I find it extraordinary that a government that has made an art form out of talking about Operation Sovereign Borders—suggesting to the Australian community that it is somehow protecting Australia's sovereignty from refugees—would, in fact, be prepared to negotiate away our own national sovereignty. This is the agenda to say that democratically elected parliaments are subject to the demands of corporations; not only multinational corporations but also corporations based in any of the member states of any agreement which is signed. In the case of the Trans-Pacific Partnership that is Australia, the United States, Japan, New Zealand, Canada, Mexico, Peru, Chile, Singapore, Brunei, Malaysia and Vietnam.

The big point here is this: we have a parliament to make the laws that govern this country in the public interest. That is fundamentally what parliament is about. That is why we are elected to this place. And what is going on at the moment is a negotiation—in secret—of a text of a trade agreement that the Australian community cannot see. We have a government saying: 'Oh, this is normal. We do not share this with people. And actually, the parliament will get to look at it'—yes; after it has been signed off by cabinet, and the parliament then only has the right to either reject the entire treaty or not. The fact of the matter is, this government—Prime Minister Abbott, and the minister, Mr Robb—are negotiating away Australia's sovereignty, and placing it in the hands—particularly in this case—of corporations based in the United States. The shocking thing here is that the United States congress has access to the text. But we do not—we in this parliament do not. But if you are a member of congress in the United States, you can get access to the text—yes, you might have to sign a confidentiality agreement, but you get to see what it is that the American government is signing up to. But we do not. We have no idea. Nobody in Australia— nobody on the street, none of the stakeholders, none of us—knows exactly what is being signed up to. Secrecy, and a lack of transparency really matter in cases like the Trans-Pacific Partnership, and in investor-state dispute resolution.

Why am I saying that it is an assault on Australia's sovereignty, and an assault on decisions of the parliament and the judiciary? It is not just parliamentarians like the Greens who are objecting to this; the judiciary is worried as well—because the chilling effect of this is that corporations can sue a government if a government moves to take legislative action which undermines their profits. The classic case that Australians may be familiar with is the Phillip Morris case with the cigarette companies. It is already happening. Phillip Morris is suing Australia under an ISDS provision in a Hong Kong-Australia investment agreement. They have also sued Uruguay for increasing the size of health warnings on cigarette packets. A legal adviser to Uruguay said:

They are bullying us because we are small. This is like David and Goliath. But we will fight because it is our right and duty as a government to protect our citizens' health.

The New Zealand health minister has delayed the introduction of plain packaging in New Zealand because of the fear of being targeted with similar litigation. This is what is known as 'regulatory chill', where governments are afraid to legislate because it may lead to them being sued by a corporation. There are plenty of examples you can think of in Australia where that might happen. You might have it with companies who are wanting to engage in fracking, for example. If Australia brings in a ban, you can see where the companies—if they had already started their operations—would be suing the government—that is, suing the government for bringing in a regulation that protects public health. It is the same in terms of GMOs. We know Monsanto would love to be able to sue Australia because Tasmania has a GMO moratorium. We make sure we do not have GMOs in Tasmania. It is part of our commitment to the environment, but it is also part of our commitment to the clean, green and clever brand of Tasmania. Monsanto would love to sue on that occasion, and it has happened in other jurisdictions.

In the wake of the Fukushima disaster there was a groundswell of opposition to nuclear power in Germany. The government responded to this powerful movement by announcing a shutdown of the nuclear power industry. Soon after, Vattenfall—a Swedish utility that operates two nuclear plants in Germany—demanded compensation of 3.7 billion euros under the ISDS clause of a treaty on energy investments. In responding to the will of the people after what they saw after Fukushima, the government tried to act in the best interests of the health of the German people. And in came the corporation to say, 'You are undermining our profits out of nuclear power and therefore we want compensation.'

Oil and gas giant Lone Pine is suing the Canadian government for $250 million over Quebec's moratorium on fracking. That is enabled by the ISDS clauses in the North American Free Trade Agreement. Lone Pine alleges that the fracking moratorium reduces 'the expectation of a stable business and political environment'. Never mind the instability that will arise from fracking, including water insecurity, loss of farmland and—ultimately—global warming.

We are also seeing the NGOs coming out. The Sierra Club, in relation to this issue with Canada and Lone Pine, has said:

If a government is not even allowed to take a time out to study the impact—

of fracking—

without having to compensate a corporation, it puts a tremendous chill on a governments' ability to regulate in the public interest,

You also have a situation with Australian company OceanaGold in El Salvador. The Australian mining company is currently suing El Salvador for $301 million—the equivalent of half the education budget of a poor country, like El Salvador—because it refused to issue them with a gold-mining licence.

The situation goes back to 2004 when the company applied for a mining permit and assured the government that its work would be environmentally friendly and would provide jobs for local people. In the interim, the damages of mining proliferated in El Salvador. Ninety per cent of the country's surface water became contaminated. There was acid mine drainage, which has killed aquatic life and destroyed water quality in the region, and high rates of disease linked to arsenic poisoning. Currently, just two per cent of El Salvador's water is determined by the government to be of good quality. The El Salvador government said:

… the original application to mine did not meet environmental safety standards and that the proposed mine poses risks to the country’s already limited water supplies. OceanaGold denies the risks, even though—

everybody knows—

gold mining is notorious for polluting waterways with arsenic mercury and other toxic metals.

As a result, the government failed to approve the proposal and instituted a moratorium on mining permits, as you would expect they would do in the public interest.

We are now seeing, under the ISDS clauses of the North American Free Trade Agreement, the company go after the El Salvador government. If the company succeeds, this will significantly reduce the funds available for health care and education. Even if Pacific Rim's claims fail—as many expect—this lawsuit has cost El Salvador almost $13,000,000 to date, which amounts to nearly its entire environment and natural resources spending in 2013.

That is going on already around the world and that is precisely what Australia is lining up for. I wonder how much it will cost the Australian government to defend the case against Philip Morris? It would be very interesting for the government to tell us how many precious taxpayer dollars have gone into taking it up to Philip Morris in the courts. Philip Morris is suing us for daring to legislate in the public interest about plain packaging. It would be good to hear from the government, in the course of this debate, the cost to the public purse.

I also want to point out that the Labor Party when it was in government wanted to sign up to the free trade agreement with Korea. But I am pleased to say, the minister of the day, Craig Emerson, came out and said:

We considered it long and hard, and we had to stare into the abyss of having to say, 'We can't conclude the agreement with Korea.' As a matter of principle and in keeping with the commitments that we made, we said to Korea, 'No, we cannot do it.'

He went on to say that they opposed it in the Korea FTA because:

… if we had agreed with it with Korea, it would be inevitable that we would have to agree with it within the Trans Pacific Partnership and other trade agreements. It was obvious to us, if we'd said yes to Korea, how do you say no to the United States?

The Labor government knew at the time that if they signed up to the trade deal with Korea with the ISDS in place it would be rolled over into the Trans-Pacific Partnership Agreement and that is precisely what is happening. It is disgraceful that now that Labor is in opposition they go along with the government's signing up to the free trade agreement with Korea with that investor-state dispute resolution clause in place.

That means Labor and the government in Australia are selling out Australia's sovereignty. They are doing it in secret; there is no text for anyone to see. What is even worse than the U.S. Congress having access to the text while we do not, is that they are asking us to sign off on the text here in Australia. They are asking us to sign it off in this parliament before it is concluded in the US; and the US reserves the right to change it if it does not suit US companies, the US Congress or their consultation process. So, if ever Australia were selling out our sovereignty to US and to corporations, it is under this agreement.

This is the agenda of the corporate world. This is the agenda about getting rid of regulation on a global scale to maximise their absolute destruction of the planet at the lowest possible price—

Senator Ian Macdonald: You cannot believe this rubbish!

Senator MILNE: and at the expense of local people, jobs, wages, conditions—the whole lot. That is exactly what you are going to see in investor-state dispute resolution and it is why the Europeans—

Senator Ian Macdonald interjecting—

The ACTING DEPUTY PRESIDENT ( Senator Whish-Wilson ): Order!

Senator MILNE: are backing off this at a great rate. The European parliament has had a letter from 100 legal and other experts in the field saying, 'Back off this in Europe. It is a bad idea.' They have had to put it on hold and they have had to start looking at what it actually means in the European context to sign up to agreements with investor-state dispute resolution clauses in them.

But think about it: if you have a multinational corporation that is threatening a country, why would a parliament then move to legislate for a ban on fracking or to stop environmental destruction if they knew they were going to incur the wrath of the corporation suing them and the legal costs associated with defending it? The whole point of a parliament and sovereignty is for the parliament to be able to be the ultimate decision makers—

Senator Ian Macdonald: This coming from the Greens!

The ACTING DEPUTY PRESIDENT: Order!

Senator MILNE: and for the courts to be the ultimate decision makers in terms of the legal framework, the laws of the country and how the laws of the country are implemented. Once you devolve that decision making power to corporations you might as well give up as a parliament and as a government—and that is precisely what the Abbott government is doing.

The Labor Party knows it. They had this experience with the Korean free trade deal and that is why, to their credit, they did not sign up. They knew what investor-state dispute resolution meant. Tragically, they have now gone onto the same bandwagon as the government. But the people of Australia do not like it. The people of Australia do not like the idea that once again we have a Liberal government that pretends to protect the sovereignty of Australia selling out to the United States and, in particular, selling out to multinational corporations—

A government senator interjecting—

Senator MILNE: because that is the consequence of what is going on. I have cited the examples—the Philip Morris case, the Canadian case of Lone Pine, the German antinuclear case and the El Salvadorian case of environmental regulation. The trouble with some senators on the other side is that they prefer ignorance and ideology to get in the way of evidence. The evidence I have presented stands alone.

Senator Ian Macdonald: Talk about ignorance and ideology!

The ACTING DEPUTY PRESIDENT : Senator Macdonald, in four minutes and six seconds you will get your turn. Please allow Senator Milne to speak.

Senator MILNE: I can tell you that the Chief Justice of the High Court of Australia, Justice Robert French, has raised his concerns that ISDS is effectively establishing a parallel legal system where Australian judges have no voice. Senator Macdonald thinks, obviously, that he knows better than the Chief Justice of the High Court of Australia, Justice Robert French. But I think, Mr Acting Deputy President, that when you have the Chief Justice saying that what you are doing is selling out the sovereignty of the Australian parliament and the Australian legal system, you should start thinking about that. When the Chief Justice is saying that the ISDS is setting up a parallel legal system where Australian judges have no voice, that should be of major concern to Australians. People are already worried that this government is governing for the big end of town. We are seeing it—absolutely—when it comes to their refusal to crack down on tax avoidance; in the huff and puff of the Treasurer before the G20—all about tax avoidance—until we had to ask for a delay in Australia actually engaging in the exchange of information around the world that would lead to a crackdown of tax avoidance. We saw it in MYEFO before Christmas: the tax avoidance measures that were in that document were removed. We are seeing it left, right and centre.

The two greatest threats to humanity and to the planet are the growing inequality around the world in the accumulation of wealth, and global warming. Those two things together are driving massive social unrest and ecological destruction. And the people driving it are the corporate world—the one per cent who own the vast majority of the Earth's resources now, and their wealth, want to secure a regulatory environment which is lowest common denominator, and they want to use these investor-state dispute resolution clauses to do it. This is a dangerous assault on the integrity and capacity of the Australian parliament to govern in the best interests of the Australian people, for our wellbeing and our health. It is being done in secret, handing over to the United States the right to actually change the text—after the Australian parliament has signed off on it. And we will be subject to it after that. What sort of government acts as a doormat to that kind of agreement? I can tell you which sort of government: it is the Abbott government. It is the very people who pretend they are interested in Operation Sovereign Borders, while actually undermining the sovereignty of our nation in a very frightening way.

We only have to look at what is going on with the power of the corporates. We have to take our democracy back, and one way of taking our democracy back is banning investor-state dispute resolution clauses in any agreement that Australia signs. That is the way we take our democracy back, that is the way we restore the sovereignty of our parliament and our legal system, and that is the way we prevent the multinational corporations of the planet from overseeing the best interests of Australian and the environment. And if we do not, we are going to see billions of taxpayers' dollars over the years being set aside in legal cases. And the culprits responsible are sitting in this parliament, pretending to be a responsible government as we speak.

Senator IAN MACDONALD (Queensland) (10:28): Anyone who is seriously following this debate, and who heard Senator Canavan a little while ago, would appreciate that nothing the Greens have said—nothing that Senator Milne or Senator Ludlam have said—stands up to a factual assessment. A lot of people who I know follow Senator Ludlam's technical savvy in these areas; you know, he gets on Twitter and Facebook and YouTube, with all the buzzwords—

Senator Ludlam: I am on it now!

Senator IAN MACDONALD: He is on it right now! But can I just say to you people, please carefully look at anything Senator Ludlam or Senator Milne will tell you, because history shows most everything of what they say is not supported by fact; and it is, in fact, simply lies. It is easy to pick the buzzwords. It is easy to pick the prejudices—these big US corporate giants—

The ACTING DEPUTY PRESIDENT: Senator Ludlam on a point of order.

Senator Ludlam: Mr Acting Deputy President, I rise on a point of order. Senator Macdonald, you have been here for decades, if not hundreds of years. You know very well that it is unparliamentary to accuse other senators in this place or the other of lying. So I ask you to withdraw that and then carry on with your strange rant.

The ACTING DEPUTY PRESIDENT ( Senator Whish-Wilson ): I will let that one go. It was part of a wide-ranging debate, but I would urge caution, Senator Macdonald.

Senator IAN MACDONALD: 'Strange rant'—that is okay. This is the thing with the Greens political party, hypocrisy knows no bounds. Here is a party talking about 'surrendering Australia's sovereignty'. Which party would have the one-world government, to have Australia sign up and be bound by every single international treaty brought on by anyone around the globe?

You only have to look at the facts of these issues to realise that most everything you hear from people like Senator Ludlam and Senator Milne simply are not supported by truth and accuracy. Sure, pick all the prejudices: fracking, big end of town, nuclear—and the US corporate predators. Never mind any other corporate predators. US corporate predators are the real ones.

Senator Cameron made a very measured address. He clearly indicated the facts. It is obvious that no-one from the Greens political party has read the agreements that have been entered into so far. Senator Canavan quite rightly assisted those Greens members who were interested in truth and accuracy—and I am not sure there are many—on what section 18(1) of the Korean free trade agreement said. He read it out. I could repeat it, but I will not take the time of the Senate.

Australian governments, not just this government but previous governments as well, have entered into a number of interstate dispute-settlement arrangements over a number of years. In free trade and bilateral agreements we already have interstate dispute-settlement provisions in Investment Protection and Promotion Agreements. These include countries such as Singapore, Thailand, Chile, 10 ASEAN countries and New Zealand. We also have agreements with Argentina, China and the Czech Republic. I have not got to the 'big predator' US government yet that the Greens like to talk about. I am sure that is here.

We have entered into these sorts of agreements with all these countries: 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, just to name some of them.

I will try to put a little truth and accuracy into this debate. I will indicate to the Senate the types of obligations covered by ISDS. One of them is that foreigners and locals should be given a similar treatment. How bad is that? It applies to Australians. Do we have different rules for people from other countries? Talk about xenophobia in the Greens political party! It seems to know no bounds. These agreements say that foreigners from one country should be given similar treatment to foreigners from another country—so the Chinese and their trade agreements with Australia will be treated the same as the Americans; they will be treated the same as the Hungarians; they will be treated the same as the South Africans. What sort of a problem does anyone see in that? These agreements also limit the circumstances under which expropriation can take place, and they require provision of adequate compensation. Under the Australian Constitution, if the Australian government expropriates property for good reason, it is required to pay compensation. But the Greens do not think the same should apply to other countries who have property rights in Australia which are expropriated by the federal government. It is okay to pay Australians compensation, because the government is required to under our constitution, but forget the foreigners! We will just take their property and we will not allow for any compensation. These obligations also provide for non-discriminatory treatment and for compensation in the case of armed conflict or civil strife, in any country which Australia has these arrangements with.

While the Greens political party think that this is not appropriate, a company from one country that invests in a different country should be able to freely deal with profits they make as a result of their investment. Otherwise they would not be making the investment. Most countries around the world are seeking investment in their own countries—to help their countries—but are expecting that those who invest will make profits, and will be able to take those profits home as they intended. In fact, the Foreign Affairs, Defence and Trade Committee yesterday had a very interesting roundtable meeting with all of the ambassadors from the Arab countries in the world. It was a great get-together, talking about two-way trade between our countries. I asked all the ambassadors to quickly run through and indicate which of their commodities or services they would like to sell more of to Australia. Some of the ambassadors responded as you would expect—more clothing, more chemicals, more olive oil—but a lot of them said, 'we want Australia to invest in our countries, and to bring Australian expertise into our countries. We know that is good for Australia; they will make profits and help employ some Australians, but we also want that because it will help our countries to develop.' And yet the Greens, by not allowing these ISDS provisions, would seek to make it difficult for Australians to take action against these countries if these countries introduced laws that expropriated Australian investments in their country without compensation. That is what this is all about.

To anyone who is following this debate: do not take anything the Greens say as accurate, but please look into it and please look at history. You will find that almost everything the Greens political party will stir you up about turns out to be absolutely incorrect, but time does not permit me to go through all of those issues.

It is hypocrisy—sheer hypocrisy—for the Greens political party to say that we are surrendering Australia's sovereignty to international corporate giants, when everything the Greens do in this parliament is all about international treaties, and about how Australia should subject itself to the dictates of all of these international bodies; the United Nations and other bodies. They do not want Australia to have a view on uranium, or climate change. They do not want Australians who, by majority, have a different view to some of the members of the international community views on climate change. They want Australia just to accept, willy-nilly, the views of these international bodies without allowing the Australian people to have their say.

The Australian people clearly share my view on the irrational accusations of the Greens about climate change. We all accept the climate is changing. I often say that once upon a time the world was covered in ice and snow, and clearly over the aeons that has changed. Once upon a time the centre of Australia was a rainforest. Clearly that has changed. Clearly climate changes. But there is no accepted evidence at the moment that man's emissions of carbon have been responsible for it. There is no evidence that there has been global warming for 20 years. In fact, the actual scientific evidence suggests otherwise. But the Greens would have Australia's sovereignty—

Senator Siewert interjecting—

Senator IAN MACDONALD: That is true. I am sorry. I can give you 50 scientists who say that.

Senator Siewert: What scientists?

Senator IAN MACDONALD: See, because they are not—

The ACTING DEPUTY PRESIDENT: Senator Macdonald, please address your comments through the chair.

Senator IAN MACDONALD: Thank you for that unbiased ruling, Mr Acting Deputy President. I am being attacked by members of the Greens political party. You do not pull them up.

The ACTING DEPUTY PRESIDENT: Senator Macdonald, take your seat. Take your seat, Senator Macdonald. All I asked you was to address your comments through the chair, which you know is accepted protocol.

Senator IAN MACDONALD: If you look at the record, you will find that all of my comments are through the chair, and even my response to interjections was through the chair. Please, Mr Acting Deputy President, do your job.

The ACTING DEPUTY PRESIDENT: Senator Macdonald, all I asked you was that you address your comments through the chair, which you know is accepted protocol. You were pointing and yelling at Senator Siewert. You can point and yell at me, but please address your comments through the chair.

Senator IAN MACDONALD: I would never point or yell at the chair.

Senator Singh: I am on my feet, Mr Acting Deputy President.

The ACTING DEPUTY PRESIDENT: Sorry, Senator Macdonald. Please take your seat. Senator Singh.

Senator Singh: I was on my feet before you.

Senator IAN MACDONALD: I was on my feet.

Senator Singh: No, I was on my feet before you.

The ACTING DEPUTY PRESIDENT: Senator Macdonald, please take your seat. Senator Singh.

Senator Singh: Mr Acting Deputy President, on a point of order, Senator Macdonald is reflecting on the chair, and I ask you to rule accordingly.

The ACTING DEPUTY PRESIDENT: As I was just saying, Senator Macdonald, please just address your comments through the chair. You understand the protocols. Let us continue the debate.

Senator IAN MACDONALD: Mr Acting Deputy President, I do not need your protection against the interjections of the likes of Senator Siewert, but if you are making those rulings please be consistent. I will continue on the line that Senator Siewert does not like. Because they are not scientists that she and her group of funny people think are good scientists, they are all to be ignored. You only listen to those who repeat your mantra, Senator Siewert. There are credible scientists around the world—

Senator Siewert interjecting—

Senator IAN MACDONALD: You laugh, but then I laugh at your ridiculous comments, and so I accept that. But, Mr Acting Deputy President, perhaps you could help me—I address this through the chair—by stopping the consistent interjections I get from the Greens political party.

The ACTING DEPUTY PRESIDENT: Senator Macdonald, I will ask Senator Siewert to cease the interjections and remind everyone in the chamber that interjections are disorderly.

Senator IAN MACDONALD: Thank you, Mr Acting Deputy President.

Senator Siewert: Mr Acting Deputy President, on a point of order, I do accept your ruling; however, Senator Macdonald was speaking across the chamber directly to me, so I responded. I apologise to the chamber, but, if you could ask him therefore not to address his comments directly to me across the chamber, that means I will not interject and respond.

The ACTING DEPUTY PRESIDENT: Thank you, Senator Siewert. I will remind Senator Macdonald: please address your comments through the chair.

Senator IAN MACDONALD: The Australian government has done an absolutely fantastic job in relation to trade. It is a bit like debt, you know: people talk about trade, and they think, 'Trade's something governments do; it doesn't really impact upon us.' It is a bit like that with debt: 'Debt's just something the government will fix up; it doesn't really affect us.' Of course, what we really need is for Australians to understand that debt—and the $7 billion of debt that the Labor Party ran up—does in fact impact upon them very, very seriously. As with people's own household budget, when you borrow from a lender, some day you have to pay it back. And until you pay it back, you have to pay interest on it. But people say, 'That's the government.' Well, sorry, but the government does not have any money. The government only uses the money of taxpayers. So, it is the taxpayers who will have to pay off Labor's debt, which will approach $700 billion. And it is the taxpayers who will have to pay the $30 million a day that we are paying in interest on the Labor Party's debt—the Labor Party supported by the Greens political party. Imagine how many schools, imagine how many hospitals we could build every day with the amount we are now paying to foreign lenders on the debt run up by the Labor-Greens government.

And it is the same with trade. People think, 'Oh, trade—that's something governments do; that's good, but it doesn't really impact upon us.' Sorry: trade is very important to Australia. We are a country that is blessed with natural resources. We are blessed with fine educational institutions. We are blessed with a very energetic and innovative population. But we need to trade to be able to use those assets we have, and that means more jobs for Australians. And these free trade agreements that Andrew Robb has brilliantly concluded, in a very short period of time, mean jobs and wealth for all Australians.

I know Senator Milne is talking about how the corporate giants are ripping off all the poor people in the world. I would just remind Senator Milne that she is part of the one per cent of the world population earning a very, very high income. Yet that never seems to worry Senator Milne. It is okay for her to blame the US corporate giants and the wealthy people everywhere around the world, but I would just remind people that Senator Milne is one of those who is in the one per cent of highest-income earners in the world. And we never seem to get that recognition when we hear Senator Milne viciously attacking corporate investors into our country and indeed other countries.

Trade is important. The free trade agreements have considerably assisted Australians in their lifestyle, in their way of living and, more importantly, in their ability to be fully employed. Those free trade agreements and other trade agreements we have made with people in many instances do have these investor-state dispute settlement arrangements. They have been in place for ages. The Labor Party has entered into agreements where those conditions do apply. They apply for a reason, and that is that they are fair and they treat people equally. It does mean to say that if Australian companies invest somewhere else then those other countries will not confiscate Australian assets without the sort of compensation they would apply to their own nationals.

The Greens political party would have you believe that this means that corporations from around the world—not just America, although they are the only ones you hear about from the Greens—can dictate to Australia how Australia should legislate internally. The agreements we enter into do actually provide that matters relating to health and the environment—and Senator Canavan went into this in some detail—are not impacted by these investor-state dispute settlement arrangements. So, Australia is free to provide whatever it believes is the right legislation in relation to many issues that are clearly set out in these agreements. What they do say, though, is that if the Australian government, for all the right reasons, does confiscate property then the people whose property is confiscated, no matter which country they come from, will be treated the same way as Australian companies and Australian individuals. That is, if, for the right reasons, the government of the day confiscates property, people will be properly compensated for that confiscation. Now, what is wrong with that? I ask the Greens political party: what is wrong with that? Countries that invest in Australia and whose property is confiscated would be treated the same as Australians.

Unfortunately time has escaped me. I was going to raise the stupidity of the ban by the Labor Party and the Greens political on live cattle exports to Indonesia. That is a very good case in point, and, unfortunately, as I said, time is not going to allow me to elaborate on that. But Indonesian companies who had invested in Australia on the basis of a trade arrangement in live cattle that had been in place for decades and whose property was made worthless by a stupid decision of an Australian government should have been in some way compensated for that. But unfortunately time is not going to allow me to continue in that vein—perhaps some other time—but I would urge the Senate to reject this bill. (Time expired)

Senator WRIGHT (South Australia) (10:51): I rise to speak in support of this Greens legislation: the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014. The purpose of this bill is to prevent the Commonwealth from entering into an agreement with one or more foreign countries that includes particular mechanisms called investor-state dispute settlement clauses, or ISDS clauses. The inclusion of these mechanisms is one of the most insidious trends that we are seeing in modern trade deals.

I applaud Senator Whish-Wilson's great work in bringing this bill forward and encouraging debate on what has the potential not only to shape the kind of world that we bequeath to our kids and our grandkids into the future but to fundamentally undermine the rule of law and democracy itself. They are high claims to make. I am sorry that Senator Macdonald is leaving the chamber, because he invited me to answer some questions that he posed, and he obviously is not particularly interested in hearing those answers. At one point, he scoffed at the idea that Chief Justice Robert French of the High Court of Australia commented with great interest on the issues that are posed by these ISDS clauses and free trade agreements. Indeed, Chief Justice French and many others have raised significant concerns, and I will come to those in the course of my contribution today.

But let's start by asking why these ISDS clauses are so troubling. It is because these are mechanisms by which private investors—corporations who are based outside a sovereign nation with no loyalty to, interest in or concern for the citizens of that nation—can take their own action against the sovereign government of the nation and use the clauses to sue governments for huge amounts of compensation if they can show that a government policy or a change in policy has directly affected their profitability or their investment. In so doing, they can exert a huge influence and control on the laws and policies of nations irrespective of the will of the democratically elected parliaments in those nations.

This Greens bill is designed to prevent the Australian government from entering into agreements that include these ISDS clauses, to prevent corporations outside Australia from being able to dictate to Australian governments, effectively, the kinds of laws they can and cannot make and—by extension, given that the laws and policies and governments shape the world that we live in—the kind of Australian society that we have. It is interesting, and Senator Milne made this point as well, that we hear a lot about border protection from this government but when it comes to protecting our legal borders—our legal sovereignty: the right of democratically elected governments in Australia to make laws on behalf of all of us and have those upheld by our courts—this government is a bit silent. In fact, they are highly secretive. Right now we have 12 governments, including those of Australia, the US, Japan, Canada and New Zealand, negotiating this far-reaching trade deal, the Trans-Pacific Partnership Agreement. Aspects of the Trans-Pacific Partnership Agreement, the TPPA, pushed by global corporate interests are seeking to radically dispose of government regulation in the name of enhanced global competition.

We have been invited by Senator Canavan to give evidence of our concerns, but the problem is that these negotiations are conducted totally in secret. So my invitation to Senator Canavan would be that if we have nothing to fear—if, in fact, these concerns that are being raised not only by the Australian Greens but throughout Australian society and internationally are not founded—then reassure us: show us the terms of the negotiations that are happening and we can all go home. In fact, this is a situation where these negotiations are in secret and, for the first time ever in trade deals, they will include discussions to get broad agreement to remove what are called unfair advantages from government state-owned enterprises and their impacts on commercial business.

One hallmark of the way these deals are negotiated is that the Australian public has no right to know what is being negotiated away in our name until the deal is done and dusted, and then it is presented to the sovereign Parliament of Australia with the only option being to vote in favour or against; there is no possibility of changing it; the deal has already been done. We see in the current negotiations for the TPPA, on the back of global corporate interests and pressure, the US government wanting to include a proposal which would allow foreign companies to sue our government and the governments under the agreement for damages if they were to adopt laws or policies that could harm the investment of these global interests. So even if they are laws and policies made in good faith on behalf of the national public interest—laws which may protect public health or the environment—there would be the capacity for outside corporations to challenge those laws and seek large amounts of compensation. That has a chilling effect on the capacity and the willingness of sovereign governments to actually govern in good faith in the interests of the national public. As my colleague Senator Whish-Wilson has already said clearly, what we have set up in these kinds of modern trade deals is a parallel system of governance which gives corporations the right and ability to impinge directly upon our ability as parliamentarians to enact legislation in the public interest—and, in the end, isn't that what we are elected to do?

These ISDS clauses have excited huge concern both nationally and internationally. Indeed, the issue has received serious consideration from many, including High Court Chief Justice Robert French, who is the most eminent judge in Australia. Chief Justice French addressed the Supreme and Federal Courts Judges' Conference in Darwin last year. He provided a very thoughtful paper, and I commend it to those who are interested in learning more about the nature and implications of these ISDS clauses. Senator Macdonald expressed disbelief that Chief Justice French may have been commenting on these issues, so I will pay him the courtesy of forwarding a copy of the paper to him, and I hope that Senator Macdonald will read that.

Chief Justice French focuses on the tensions that can exist between these ISDS mechanisms and the legitimate functions of the legislative, executive and judicial branches of governments. With respect, who would be in a better position to consider these issues in a scholarly way? He sets out the current landscape and, importantly, the implications for the rule of law in Australia. Where there is dispute about the effect of government policy or lawmaking on corporate interests under these agreements, there is a mechanism for that dispute to then go to a system of arbitration, and there have been a great number of concerns about the conduct of the arbitration bodies as they have operated previously when considering disputes under these clauses. So, effectively, if there is government policy or lawmaking and even, indeed, decisions of courts within a sovereign jurisdiction, if a third party outside that sovereign nation wants to dispute the decision, law or policy, they can then take these to an arbitration body.

Chief Justice French in his paper refers to a briefing paper prepared by the European Parliamentary Research Service in January 2014 which describes the concerns raised about the vague formulation of major treaty provisions which leave a wide range of interpretations open to the arbitrators. There is a vagueness and uncertainty in scope and application, which is always a problem in relation to the law. There are also loopholes in these agreements, which can lead to abuses such as nationality shopping by companies, which then create subsidiaries abroad specifically to take advantage of the agreements. Indeed, that is what we have seen in the Philip Morris tobacco case that has been referred to by many of the people making a contribution to this debate.

As for the conduct of the arbitration panels themselves, particular and worrying concerns have been raised. As Chief Justice French states in his paper,

Arbitral tribunals set up under ISDS provisions are not courts. Nor are they required to act like courts. Yet their decisions may include awards which significantly impact on national economies and on regulatory systems within nation states. Questions have been raised about the consistency2, openness and impartiality of decisions made in ISDS arbitrations.

The briefing paper from the EPRS sets out some specific issues that have been raised:

lack of transparency with varying degrees of secrecy attaching to arbitral processes depending upon the institutions or rules which are applied;

a relatively small pool of arbitrators — arbitrators appointed to ISDS arbitrations are said to be mostly male—

and I guess there are no surprises there—

(95%) and from Europe and North America;

role-swapping by arbitrators who appear from time to time as counsel in ISDS cases;

so sometimes they are on one side of the bench and sometimes they are on the other—

the high cost of ISDS arbitrations — estimated by OECD as averaging about $8 million each;

associated with the high cost and potentially high awards, a growing phenomenon of third party funding of claims by banks, hedge funds and insurance companies in exchange for a share of the proceeds ranging from 20% to 50%;

So there is a little bit of a variation on the no win, no fee or, 'We'll fund it and we'll get a cut of the win,' which is always a real concern in terms of corrupting processes. There is also:

absence of effective review or appeal processes;4

inconsistency in decisions on similar provisions.

It is important to understand that this is not just a vague, theoretical concern that we are dealing with here. This is a live issue. There have already been many cases on foot. Last year the UN Conference on Trade and Development published its annual review of ISDS cases. Fifty-even new cases—these are cases brought by outside parties, by corporations, against governments—were commenced in 2013. That was just below the number in 2012, which was a record year with 62 cases. Most of the claims were brought against nation-states by investors from developed countries—again, no surprises there—and mainly by investors from the European Union and the United States.

And what sort of cases were being brought by these corporate interests? They involved challenges to a range of governmental measures, including measures relating to renewable energy. Why doesn't that surprise me? And who would be bringing those kinds of cases? There were measures allegedly affecting expropriation of assets, revocation of licences and permits, regulation of energy tariffs—energy into the future and the profits that are to be made there is a big one, isn't it—wrongful criminal prosecutions, land zoning decisions, invalidation of patents and sovereign bonds legislations.

As I said, many would be aware of the Philip Morris case where the Australian High Court upheld the validity of legislation made by the Australian parliament to introduce plain packaging for tobacco products. The challenge was brought by a company supported by Philip Morris Ltd to the Australian High Court, but the legislation was upheld. Four months before commencing the action in the High Court, Philip Morris Asia Ltd moved to acquire an interest in Philip Morris Australia so that it then had an interest in this subsidiary. I quote from the Chief Justice French's paper:

That acquisition is said to have reflected a tactic used by private investors seeking to take advantage of bilateral investment treaties and is known as either 'nationality planning' or 'treaty shopping'. It appears to have been related to the existence of a bilateral investment treaty between Hong Kong and Australia.

That was a treaty from 1993 which included an ISDS clause. On the basis of that clause Philip Morris is challenging the Australian government for compensation on the basis of the plain packaging laws. We will be interested in seeing what occurs there.

The Australian Greens are significantly concerned that these sorts of clauses and the actions they allow corporations to take against the Australian government and state governments have the potential to shape the kind of world we are going to be leaving to our kids and grandkids. To bring that home and illustrate why I am concerned I am going to tell you about a visit I had last Sunday when I travelled to an area near Mount Gambier in the south-east of South Australia. I attended a celebration there which was a declaration by a small land area near the little town of Mil-Lel. There was a declaration by the residents of that area of their roads and their region being gas field free. Currently there are two exploratory drilling wells from Beach Energy in that area looking for the viability of shale and conventional gas mining, and there is increasing concern among the residents in that area about the risks associated with unconventional gas mining and fracking. There are real issues in that area, which is a rich area of agriculture, wine-growing, cropping and tourism. Also there is a very limited water supply in that area. There is a great deal of concern by the residents that unconventional gas mining will actually destroy the viability of the population, not just the economic viability, but in fact their ability to live there in a healthy way.

I went there and I was absolutely delighted to see proud citizens walking up and handing to the mayor of the District Council of Grant their scrolls—street by street, road by road—and saying, 'We do not accept that there will be unconventional gas mining in our area. We are saying that we are putting faith in the water and food supplies that we need to protect our kids and our grandkids.' When I saw that I felt that there was a strong vote of confidence in what is a real democracy, which is requiring decision-makers to make decisions that are in the interests of all people, not just in the interests of those who have power and influence and who are only interested in making short-term profits.

It is very clear that the ISDS clauses in these free trade agreements, and which will potentially be in the Pacific trade agreement, have the potential to stop our governments from legislating democratically in response to community concerns about environmental issues like mining for conventional gas. There are clear precedents for this kind of action by foreign corporations against governments when they are making law and policy that affects, for instance, energy—and that is what we are talking about here. We are talking about moving away from reliance on fossil fuels to having other sources of clean green energy like renewable energy, like solar and wind and so on.

There is an example in Quebec at the moment where, under the 1994 North American Free Trade Agreement between the US, Canada and Mexico, there was an ISDS clause. On the basis of that clause Lone Pine Resources, an energy company, is currently suing the government of Quebec for $250 million because it had the temerity to suspend shale gas mining while awaiting the outcome of an environmental study into the dangers of that mining. The suspension was brought about because of pressure from the community to examine the health and environmental impacts of that mining. The government response to the community pressure was democracy in action, and we have a large corporation currently suing the Quebec government to chill that decision in the sum of $250 million.

So in the south-east we have, at the moment, an inquiry from the South Australian state parliament into fracking in that area which was initiated by my Greens colleague, the leader of the Australian Greens in the South Australian parliament Mark Parnell MLC. What happens if there is a decision by the state government in responding to the findings of that inquiry, hypothetically speaking, that they were to decide that there should be a moratorium on fracking in the south-east? If we are subject to these sort of ISDS clauses in agreements, which the Australian government has entered into, there is every possibility that an organisation could then take action against the state government for compensation to prevent that sort of decision being made.

We are at a point in history where it is absolutely vital that people's perception that governments are only governing for the rich, the influential and the powerful is changed. There is increasing disillusionment, and I know that everybody in this chamber will be aware of it. When you go and talk to voters, people do not have faith that we are actually fulfilling the trust for which we have been elected, and that is to govern in the interests of all. This is a point in history where we must defend our democracy, and that has to start from the grassroots up. It has to start with respect for the people and for the national interest. Australian governments voluntarily surrendering sovereignty over the policy and the law that we make in this parliament is not only foolish and irresponsible but highly dangerous for the future health and welfare of this nation. But, fundamentally, I believe it is highly dangerous to this nation in being able to remain a viable democracy where our populace has faith in the decisions that we are making. If we lose that I do not know what we will have left. I urge the Senate to support the bill. (Time expired)

Senator BACK (Western Australia) (11:11): I rise to explain to the chamber and to the wider community why I oppose the Trade and Foreign Investment (Protecting the Public Interest) Bill of 2014. I read from the explanatory memorandum as supplied by our colleague Senator Whish-Wilson:

The purpose of this Bill is to prevent the Commonwealth from entering into an agreement with one or one more foreign countries that includes investor-state dispute settlement provisions.

Now, I have to say at the outset that I have a lot of respect for Senator Whish-Wilson. He was well educated at Guildford Grammar School, as I understand, in Western Australia. He studied at university in Western Australia, and he has a good, sound understanding of economics and commerce. He has worked in the stock exchanges, as I understand, in Western Australia, in Hong Kong, in New York and in Sydney. So, Senator Whish-Wilson has a very, very good understanding of the world of commerce and particularly the world of international trade.

Senator Whish-Wilson also understands that, in a country that has the land mass of continental USA and the population of New York City, the high level of per capita income, wealth and socioeconomics in this country, indeed, is due to our exporting capacity. We are not like America; we cannot consume the majority of what we produce. We are not like China, which, of course, also can consume. We must rely on exports, we must rely on the inflow of capital, we must rely on the rule of law, and we must, of course, rely on being important players on the world stage. I say again, that section 3 of the explanatory memorandum sets out that the intention of the bill is to prevent the Commonwealth from entering into agreements with foreign countries that include investor-state dispute settlement clauses. How harsh would this be for our little country of 23 million people if we were denied access to the export markets of the world upon which we have relied for so long, which we will need to rely on in the future to sustain the economic wealth and wellbeing of all of our citizens and, indeed, to improve the wellbeing and the socioeconomic conditions of those in our neighbouring and trading regions—Asia, Africa, India and, of course, Central America and Latin American?

It is interesting that in his second reading speech Senator Whish-Wilson draws attention to the fact that the Australian government is currently being sued under the ISDS clauses as a result of a legislative decision the previous government took to require cigarettes to be sold in plain packaging. That is a 1993 agreement; it is 22 years old. Surely everybody in this place realises that we have moved on from the quality of legislation that is 22 years old. I also remind the chamber that this is not yet a settled matter. It is not yet a matter that has had any sort of resolution or judgment. I share concerns. We sat in the committee together. I share the concerns of academics and others. I also share the concerns expressed by the Chief Justice, a fine Western Australian jurist, Robert French. But, at the same time, the role of government is to balance these inputs and to arrive at decisions that are in the best interests of our country, and I want to spell some of those out.

I want to point out, if I may in the time that is available to me, where some of the pitfalls would come if, indeed, we were to pass legislation that prevents the Commonwealth—it does not caution the Commonwealth or give the Commonwealth any leeway in this; it prevents the Commonwealth—entering into an agreement with ISDS provisions. Of course, this blanket prohibition would completely and utterly limit our opportunity to negotiate into the future with foreign countries, be it for inputs or for exports. We could not conclude negotiations which would benefit Australian producers, consumers and investors, the broader community or, indeed, those communities in the countries with which we have such valuable trading relations, and it would impose on the Commonwealth a significant limitation on the ability to pursue our broader trade and investment objectives.

We have spent a lot of time in the last few days, as we have in the last couple of years, in this place debating how we are going to sustain and improve the socioeconomic wellbeing of our country—how we are going to be able to meet the social demands that are so eloquently debated in this place. But, Mr Acting Deputy President, you know that, as Senator Fifield said so well the other day, if the economic agenda and the social agenda are not in alignment, it will be to the demise of each of them. Unfortunately, what this bill, if passed, would do would be to totally limit the opportunity for our economic expansion, particularly at this time.

I feel remiss with the finance minister, Senator Cormann, here, because he is so much better versed than I am in being able to comment on the black clouds that are confronting the world at the moment as we look at what might happen with Greece defaulting or, indeed, jumping into bed with Russia—whose economic circumstances at the moment would be such that you would wonder how Russia would be able to bail Greece out of its current debt crisis. We look at other countries in Europe and the circumstances they are faced with. We have a look at the United States of America, the interest on whose debt—not the debt but the interest on their debt—is a billion dollars per working day at the moment—$250 billion they are borrowing. Senator Whish-Wilson understands this much better than I and as well as the finance minister does. To me, it all points to the fact that we must remember that we are an exporting country.

But, of course, this blanket prohibition that is proposed in the bill is inconsistent with the government's policy, which is to consider the inclusion of ISDS provisions in any free trade or other agreements on a case-by-case basis. It denies the government the opportunity to actually negotiate case by case. It says: 'No, sorry. We can't deal with China. We can't deal with Japan. We can't deal with Korea. We couldn't have dealt with Singapore. We're not allowed to deal with the Trans-Pacific Partnership, because we are prevented from even participating.' Nobody in Australia wants to see that—indeed, I do not think Senator Whish-Wilson does. What we do want to see is a very cultured discussion about those elements which are sacrosanct to Australia.

I go back to the point that the 1993 provision is 22 years old. This was not being considered 22 years ago. Possibly it could have been predicted 22 years ago, but nobody is suggesting today that the sorts of agreements that we are negotiating and contemplating have not moved on and are not taking into account those environmental, health and other concerns on which we are, of course, so focused.

The bill proceeds from the view that ISDS invariably represents an unacceptable risk to the public interest and that all provisions are equally severe. We are conscious of potential risks, and I would rely on the excellence of the trade minister—leading and directing the bureaucrats in the department, who are now so well versed in the processes of international trade negotiations—and on being able to govern and to regulate in the public interest in areas such as health and the environment.

On this topic, I would be amazed if in his previous work Senator Whish-Wilson has not come across similar clients. As a businessman myself, and having in the last decade engaged in business activities in Asia, in the Middle East and on the Indian subcontinent, I know that ISDS does not just apply to ogres wanting to come into Australia. ISDS gives a level of protection to Australian industry operating overseas. This is vitally important, because we have the opportunity and indeed, in my view—particularly in the field of agribusiness, in which I spend a lot of my professional time—the compulsion to increase our business activities overseas. I for one would be saying that, in any sorts of agreements that Australia is negotiating, I would want to see our government and our trade negotiators making sure that the interests of Australian business are being protected. Indeed, if we were to prevent the Commonwealth from entering into agreements, we would be cutting off the opportunity for Australian businesses operating overseas to enjoy the protection of ISDS clauses. It is a two-way exercise; it is not just a one-way exercise.

The bill in its current form fails to recognise that agreements containing ISDS can incorporate safeguards to protect the rights of governments and the communities they represent to take decisions in the public interest. The bill suggests that this is not possible; I say that it is. In fact the recent agreement negotiated, again, by trade minister Robb leading the delegation of people who undertook it with the Republic of Korea, contained many more safeguards indeed than earlier agreements. This is how policy works. This is how democracy works. This is how government works. We should always be moving to improve what has gone before us. In the case of Korea these safeguards have been developed in response to concerns about challenges to legitimate public welfare regulation. I, for one, enjoyed the opportunity to participate in the committee and to hear the legitimate concerns of people who not only have the expertise but defend the time. Two instances in the case of Korea where we were not freezing existing policy settings were to do with intellectual property and the environment chapter; exactly the concern that Senator Whish-Wilson and Senator Wright have expressed saw itself played out. Indeed, we have ISDS clauses in four existing free trade agreements and 21 bilateral investment treaties—binding obligations that have been ongoing over 25 years—and I remind those listening that we have only ever faced one claim; we are facing that now and that has not yet been tested or resolved. Not bad for a country of 23 million people that exports more than 65 per cent of its produce around the world.

Who, in fact, are the players? Of the bilateral investment treaties that we are considering, more than 90 per cent of the 2,500 in force have operated without a single investor claim. We know that the inflow of capital is vital to this country, and of course the inflow of capital reflects the claims—for Europe, it is about 50 per cent and about 47 per cent of the claims. For the United States, the next biggest player in this game from Australia's point of view, it is 24 per cent of FDI stock outflow from them and 22 per cent of the claims. It is in the resources sector—mining, oil and gas resources—where most of the claims have been made, because they are the sectors in which there is the greatest degree of state involvement, and I hope to come to Mexico in a few moments by way of illustration. The disputes have been mainly around countries with weak legal institutions—Argentina with 53 claims and Venezuela with 36 claims are the two leading respondent states. About a third of all ISDS cases are settled in advance of a ruling, and it is the case that people come to realise it is as expensive to run an ISDS claim as it is to go through the commercial legal process. We see that treaty-based investment protection represents a major advance in the fair treatment of aliens and the peaceful resolution of disputes. When you consider the alternative—withdrawal from these treaties, which is the logical conclusion should the good senator's bill be accepted—then the negative consequences for economic growth in this country and the rule of law are there for all to see.

I want to continue now in terms of what those opportunities are. We are an economy of some $1.6 trillion. The services sector contributes about 70 per cent—about $1.12 trillion—of that economic activity, but at the moment the services sector only contributes 17 per cent—$57 billion of $330 billion—towards export income. Therein lies the opportunity for this country to radically increase the contribution of the services sector to export earnings as resources earnings go down because of the decline in oil and gas prices and of course the price of iron ore and other resources. You turn and say, 'That is all well and good, Senator Back. Where are these opportunities for increasing the services sector from 17 per cent?' Imagine, Finance Minister, if the services sector expanded its export activity from 17 to 34 per cent. Do you know where the answer lies? It lies in those countries with which we have just concluded free trade agreements. When Minister Robb briefed us on the value of the Chinese free trade agreement to our country, as a person involved in agriculture and resources I was thinking, 'This is wonderful.' We already export a lot of iron ore. In fact, for your interest, we actually export 19 tonnes of iron ore per person to our overseas markets—we did that in 2014.

But Minister Robb told us that what the Chinese actually want is access to our services. They want further access, for example, to our education services. Last year our education services to China were valued at in the order of $4 billion. The value of tourism from China to this country is in excess of $1 billion. That is just those two services alone—higher education and tourism—but add in to that the opportunity for services exported for governance, for prudential regulation, for insurance purposes, and the fact that that particular free trade agreement has now guaranteed that Australian service providers will be able to construct, renovate and wholly operate Australian-owned hotels and restaurants in China. How often have we heard, 'Of course, it is all well and good—they can come here to our country, but we cannot do the same.' Under this agreement we can; but if the provisions of Senator Whish-Wilson's bill had prevailed, we could not have. Australian travel agencies and tour operators, for example, are now able to establish wholly Australian-owned subsidiaries in China for tours within China for domestic and foreign travellers. And remember: in 2014, 100 million Chinese travelled outside their country, and it is predicted that, by 2016, that will double. Another area of services that they desperately want and need from us has led to the decision under the free trade agreement that China will permit wholly-owned Australian hospitals and aged-care institutions to be established in China and run and managed by Australians. Those are just three examples, in hospitality, in tourism and in the health and hospital and aged care sectors. And, as I say, there is the value of higher education. That is for just one country. If we expand that to Japan, which also has an ageing population, there is an opportunity for expansion of our services sector.

Mention was made by previous speakers about the Trans-Pacific Partnership. I was in Mexico only some three weeks ago, discussing with government officials and industry people—for example from the oil and gas sectors, the hard-rock mining area and the energy sector—the value of NAFTA, the North American Free Trade Agreement, to Mexico; it has been massive. But the Mexicans said, 'We cannot wait for the inclusion of more Australian investment.' At their geological survey institution they showed me proudly the geological map of Mexico at the one in 250,000 level and noted the fact that, in those mineral-rich areas of Mexico, they have actually now mapped it at one in 50,000. They then turned to me—through you, Mr Deputy President Marshall, to Senator Whish-Wilson—and said: 'Do you know where we got that expertise from, Senator Back? We got it from Geoscience Australia, and we got it from the CSIRO.' How proud do you think I was? And when they said, 'We are now sending 50,000 of our university students away every year to learn more about energy, oil and gas,' I thought, 'What opportunities are there for Australians to get in there, in hard-rock mining, in their services sector, in their corporate governance, in their insurances and in their health sector?' Those opportunities will be open to us, but, indeed, if we were to accept the provisions of this particular bill, we would be denied them because they will have ISDS provisions.

Senator RHIANNON (New South Wales) (11:32): The Greens' Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 should be passed. Such legislation would play a critical role in protecting and enhancing our democracy, and I very warmly and strongly congratulate Senator Peter Whish-Wilson for initiating this bill before us. I speak about democracy because this really is about protecting democracy—protecting Australia as a sovereign nation, and making it harder to run down the all-important gains that society has managed over a number of decades with regard to labour standards, environmental protection and human rights—because the protection this bill would put in place would bring some balance back to the very damaging aspects of free trade and specifically the Trans-Pacific Partnership. So this bill is urgently needed.

There has been a long history in Australia of opposing some of the very damaging aspects of the push for free trade, and I would like to go into some of that history. I also want to congratulate, as well as Senator Whish-Wilson, many members of the Greens, the union movement, AFTINET, church groups, environment and human rights organisations and aid groups, because they are out there informing the public of how serious it is in terms of the secret negotiations. If the partnership—particularly with regard to the investor-state dispute settlement clauses—is put in place, that would do damage to the very fabric of our society, from our important basis of democratic institutions to so many aspects of our society that, often, we take for granted. So it is incredibly important that we deal with this.

I think it is worth reminding ourselves that a previous government, the Howard government, in 2004 did not include ISDS in that free trade agreement. I mention that because, when former Prime Minister John Howard came in, in the 1990s, his government really got their fingers burnt with what they were trying to do when they were meddling in a very similar scheme—actually, a much more extensive scheme—which large corporations were attempting to impose across the planet.

I am referring here to the Multilateral Agreement on Investment. You could really say that the grandparents of the Trans-Pacific Partnership and investor-state dispute settlement were the OECD and the MAI—or that the OECD gave birth to the MAI. This was a huge part of the 1990s when various very under-resourced organisations and some key hardworking activists—and, fortunately, emails were just coming into their own at that period—found out what was going on and alerted the world, and so many people rose up in opposition. That opposition was extensive and, ultimately, successful, and the Multilateral Agreement on Investment was put to bed. But now we are seeing it come back in different forms. So I think it is worth looking at what happened in the 1990s, because it is important for us to understand that this has been well debated and has been rejected, en masse, not just by Australians but by people around the world. So I did want to go into some of those aspects.

One important point was made in that debate—and I was very much part of it in the 1990s, since I was at that time the director of AID/WATCH, a non-government organisation monitoring Australia's overseas aid program, and this became a large part of our work—by Noam Chomsky. One of his arguments was that the OECD, as an organisation of rich countries, was more susceptible to direct influence by corporations; that is who they would be representing. He advocated that, when we are considering changes to trade agreements, that should come under a body such as the United Nations Conference on Trade and Development. And there was a real in-depth analysis of how these agreements should occur.

On the side of those backing the MAI, there was a period where the Liberals and Nationals were right out in front, arguing along with the corporate world that the MAI would bring secure and stable investment conditions and regulate investment in a more uniform way. They rejected the idea that it would be a race to the bottom by saying there would be uniform conditions for corporations around the world. But, when people started get to get a hold of the documents and look at the detail, what they could see and what the world was alerted to was that it was in fact a race to the bottom because it was about developing means to erode labour conditions, erode environmental standards and erode human rights—because the power would be there to penalise governments if there were any measures that restricted the profits of the corporations.

Here is a little bit of history, because it is important that we remember that this was all done in secret. How did the world find out about it? There were some lucky breaks, there were some leaks and there were some incredibly hardworking people, mainly from organisations in low-income countries: the Third World Network, the NGO Public Citizen, Global Watch, Friends of the Earth, and Susan George, a very progressive economist at the time who was onto this. The documents were released and the analysis was done. I remember people at the time saying, 'What will kill off the multilateral agreement on investment is people knowing what it really does,' and that is what happened. The documents were analysed, the information was out there and emails started going around. Maybe it was even one of the first examples of an email campaign killing off really bad plans by the corporate world with a few backers—in Australia's case, the Liberal and National parties. I very much congratulate those people, and it was a fantastic campaign to be a part of.

I will go through how it played out in Australia. We had a Stop MAI coalition. It was huge and brought together unions, a whole number of church groups that were incredibly active, aid organisations, environment groups and human rights groups. It culminated on—and I like the date this occurred—11 November 1998 in a newspaper advertisement in The Australian signed by more than 500 organisations, setting out the concerns that we had with this whole legislation. It was important that that was put on the record because again it helped to inform more people, obviously.

Interestingly, as the movement was growing around the world, the pressure from France was particularly significant because France was the first country to pull the plug on these negotiations and, while I cannot fully explain how the OECD works, that really did cripple the negotiations. Shortly afterwards, the Howard government pulled out of the negotiations as well. But it shows the strength of civil society here and around the world that there were so many people active in a very, very collaborative and constructive way.

Some of the points that we made in the advertisement in The Australianincluded—these are the words from the advertisement at the time:

The Multilateral Agreement on Investment is a treaty which would give multinational corporations the standing previously only granted to nations, and a freer hand to challenge labour standards, environment protection, social justice and democratic control over all levels of government, worldwide.

It went on to say that Australia must withdraw now and not resume the negotiations in any other form. I emphasise 'not resume the negotiations in any other form', because in the 1990s we were aware of what this was all about. You could feel the momentum building around the movement of opposition. You could feel, as you can sometimes with progressive movements, that a win was in the air. The corporate world is all-powerful. They want to increase their profits; that is what they are on the planet to do. That is why the MAI could well arise in another form. And that is what we are seeing now with the Trans-Pacific Partnership and with the many other so-called free trade agreements. That is why I wanted to give emphasis to why we included that all-important phrase in the advertisement: Australia must withdraw now and not resume the negotiations in any other form. For the record, former Greens Senator Dee Margetts was one of the people who signed that ad, as well as the New South Wales Greens, a whole number of activists and heaps of organisations around the country. As I mentioned, there were about 500 in all.

That brings us to the current problems we are facing, and they are considerable. I urge senators from the other parties to look at this bill closely. There is nothing in it that serves the interests of any group, including corporations, because this form of so-called free trade with its ISDS clauses is a robber-baron form of capitalism, and, in the end, that is not good for the corporate world. Maybe they will increase their profits in the short term, but it will become destructive not just to workers, not just to the environment, not just to people's humans rights; it will bring a breakdown in how our society works. I say that most strongly because over time, over decades and, I believe, over centuries, the different protections, the different regulations and the different standards that we have passed and brought into practice—what some people try and dismiss as green tape and red tape—have come about to improve our society, a society where it is about being collective, about supporting each other. Again, yes, in the short term the corporate world might be really rapt that we have ISDS clauses and they can do all this behind closed doors and hammer governments around the world if their profits are limited. But in the long run it is not going to benefit people. Workers need to get a wage and they should be safe and able to go home at the end of the day—not maimed in some way or killed. We need an environment that is protective and that is there for future generations, not one where we have a huge burden because of the levels of pollution. All these things are interconnected, including how companies operate. So again I would urge all to look closely at this bill.

International debate around these issues is growing enormously because there is increasing recognition that corporations have too much power over our democracies. This goes back to the starting point, and it is one of the aspects that have impressed me so much about how Senator Peter Whish-Wilson has taken forward the debate around this issue. He has made all the connections and really pinpointed how damaging this legislation would be if it were passed. It is particularly damaging because including ISDS clauses in international trade agreements tips the balance of power further in favour of the corporate world.

The working of our society is already out of balance to a great degree. We need to get back to recognising the broader public interest in terms of public health, public education, public housing—all the issues around our commons. We need to recognise how the public interest works and what we need to look after for a healthy society and for future generations. All these issues are interlinked. They are a reminder of why ISDS clauses have no place in international trade agreements.

ISDS clauses introduce potential risks to the public interest and the sovereignty of any nation. We have seen that in many recent studies. Going back to some of the experience that I gained when we were opposing the Multilateral Agreement on Investment, I remember that some of the Latin American countries had in place rules that said that if a foreign corporation was going to operate in their country the company would be required to employ so many local workers. It was realised that it would be impossible to maintain such a position under the Multilateral Agreement on Investment and that it would limit the rights of countries in improving their conditions. That is how we know of the risks associated with ISDS.

I have mentioned the growing opposition to this form of trade agreement. I would urge senators to look closely at that opposition. Over 100 academic experts to the European Commission inquiry into ISDS found that the many risks that ISDS clauses impose on the public interest cannot be managed simply by having certain safeguards for certain sections of these trade agreements. You cannot put the ISDS clauses and then establish safeguards. That is just a con job to try to make out that something is being done. It cannot be effective. It cannot remove the extraordinary extent of the damage. We must not even go there in the first place. We know that the government proposed safeguards in its deals, such as the Korean free trade agreement. That is not satisfactory. We cannot solve the problem in that way.

Returning to the study by the academic experts to the European Commission, the so-called extensive safeguards were rejected most decisively by those academics as being inadequate. We think that is where considerable attention needs to be paid.

I would like to pay tribute to the many groups who are working on this campaign. One of the leading organisations in Australia is AFTINET, the Australian Fair Trade and Investment Network, which has taken up this issue for well over a decade, examining the free trade agreements that have come forward, coming down to parliament, briefing people and putting material out there. Pat Ranald, who is the convenor of AFTINET, in talking about ISDS clauses, stated that they give:

… additional rights to foreign investors to challenge domestic laws which may be made as part of protecting or advancing human rights or environmental sustainability. Those are the kinds of examples that we cite in our submission. So our worry is that ISDS has the potential to undermine or challenge domestic law which seeks to protect those broad principles of human rights and environmental sustainability.

That has very much been a theme of the comments that I have shared with senators today, that the degree of destruction that ISDS would bring to the very fabric of our legal protections, the fabric of so many standards that have been established, goes to the heart of the democratic process. If you have a corporate power that is structured in such a way as to be higher, greater, than parliaments or governments then clearly it is a challenge to democracy. That is why we Greens are giving so much emphasis to this and why so much of civil society in Australia has examined this and is alerting people to these problems.

I do believe that this is a time when we need to take the strongest stand. It is informative that Justice French has written a very substantial paper about this in which he goes into this issue in detail. I understand that some of the senators from other parties may not be willing to take on board what the Greens are saying, but I want to emphasise that this is much wider than ourselves. I would very much urge that you read the very detailed paper that Justice French wrote, because he raises the very critical aspects of the lack of transparency involved. As I mentioned in relation to the Multilateral Agreement on Investment, it was because of some incredibly hard work, some good breaks, some leaks, that word was able to spread about the damage it would do. The Trans-Pacific Partnership Agreement also is highly secretive, but some excellent work has been done by Civil Society and by Senator Peter Whish-Wilson to get the word out. Justice French adds to this all-important work, particularly in identifying issues around the lack of transparency. You see that this is a recurring theme when you start to examine what is going on. When something is as secretive as this, one has to ask why that is. The answer is because those who are involved know that it will be deeply unpopular, that if people understand the detail the opposition to it will start growing and will apply more pressure. My guess is that they probably remember what happened in the 1990s, probably many of them were around then. They learnt from their side of politics wanting to serve the corporate interests how to manage the debate around this. Again, they have tried to keep it secret. Senator Peter Whish-Wilson is to be congratulated. This bill is excellent and it should be passed.

The DEPUTY PRESIDENT: Order! A remarkable convergence of the clocks means that time for this debate has now expired.

Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (11:52): I present report No. 1 of 2015 of the Selection of Bills Committee and I seek leave to have the report incorporated in Hansard.

Leave granted.

The report read as follows—

SELECTION OF BILLS COMMITTEE

REPORT NO. 1 OF 2015

1. The committee met in private session on Wednesday, 11 February 2015 at 7.18 pm.

2. The committee resolved to recommend:

That—

(a) the provisions of the Australian Securities and Investments Commission Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014 be referred immediately to the Economics Legislation Committee for inquiry and report by 16 March 2015 (see appendix 1 for a statement of reasons for referral);

(b) the Criminal Code Amendment (Animal Protection) Bill 2015 be referred immediately to the Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 13 May 2015 (see appendices 2 and 3 for a statement of reasons for referral);

(c) the provisions of the Higher Education and Research Reform Bill 2014 be referred immediately to the Education and Employment Legislation Committee for inquiry and report by 12 March 2015 (see appendix 4 for a statement of reasons for referral);

(d) the Regulator of Medicinal Cannabis Bill 2014 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 21 April 2015 (see appendices 5 and 6 for a statement of reasons for referral);

(e) the Tribunals Amalgamation Bill 2014 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 16 March 2015 (see appendix 7 for a statement of reasons for referral).

3. The committee resolved to recommend:

That the following bills not be referred to committees:

Mining Subsidies Legislation Amendment (Raising Revenue) Bill 2014

Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Measures) Bill 2014

Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment (Designated Coastal Waters) Bill 2014.

The committee recommends accordingly.

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

Australian Centre for Social Cohesion Bill 2015

Corporations Amendment (Publish What You Pay) Bill 2014

Defence Amendment (Fair Pay for Members of the ADF) Bill 2014

Motor Vehicle Standards (Cheaper Transport) Bill 2014

Public Governance and Resources Legislation Amendment Bill (No. 1) 2014

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

Tax and Superannuation Laws Amendment (2014 Measures No. 7) Bill 2014 Excess Exploration Credit Tax Bill 2014.

(David Bushby) Chair

12 February 2015

APPENDIX 2

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Australian Securities and Investments Commission Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014

Reasons for referral/principal issues for consideration:

Explore the impact of the bill on the development of corporate law reform

Possible submissions or evidence from:

Treasury; Financial Services Council; CAMAC; Law Council of Australia; Australian Institute of Company Directors; Governance Institute of Australia; Australian Restructuring Insolvency & Turnaround Association

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:

16 March 2015

(signed)

Senator Catryna Bilyk

APPENDIX 2

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Criminal Code Amendment (Animal Protection) Bill 2015 (to be originated in the Senate on Wednesday, 11 February 2015)

Reasons for referral/principal issues for consideration:

This is an Ag-Gag bill, designed to silence whistleblowers and investigators/activists exposing animal cruelty and neglect -particularly in factory farming operations.

It removes the ability for whistleblowers to build evidence of systemic industry-wide cruelty by forcing them to report incidents in isolation only.

It will punish and disincentivise whistleblowers from within the industry by forcing their identification to authorities and risking their jobs.

It will effectively guarantee legislated silence around factory farming cruelty and ensure positive reforms will never be possible. It also is a worrying precedent for any form of whistleblowing.

Possible submissions or evidence from:

Animals Australia, Voiceless, Barristers Animal Welfare Panel, NSW Young Lawyers Animal law Committee, RSPCA (National and states), Animal Justice Party, World Animal Protection, Sentient, Humane Society International, PETA Australia, Compassion in World Farming, FREPA NSW.

Committee to which bill is to be referred:

RRAT

Possible hearing date(s):

June 15

Possible reporting date:

June 25

(signed)

Senator Rachel Siewert

APPENDIX 3

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Criminal Code Amendment (Animal Protection) Bill 2015

Reasons for referral/principal issues for consideration:

To fully investigate the impact of the Bill and any unintended consequences.

Possible submissions or evidence from:

Department of Agriculture

Attorney General's Department

RSPCA

Animals Australia

PETA

National Farmers' Federation

Committee to which bill is to be referred:

Senate Rural and Regional Affairs and Transport Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

26 March 2015

(signed)

Senator Catryna Bilyk

APPENDIX 4

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Higher Education and Research Reform Bill 2014

Reasons for referral/principal issues for consideration:

To examine changes from the Higher Education and Research Reform Amendment Bill (2014) to the Higher Education and Research Reform Bill (2014) and to consider any further options

To examine proposals to protect universities and students from declining standards and keep students and institutions competitive with rising standards internationally

To examine measures to increase opportunity for up to 80,000 more Australians to access subsidized higher education, without having to pay upfront

To examine proposals for choice for regional students by allowing universities to specialize in what they do best and offer pathway programs and new scholarships

To consider the implications of not proceeding with the Bill.

Possible submissions or evidence from:

Professor Sandra Harding and Ms Belinda Robinson, Universities Australia

Professor John Dewar and Mr Conor King, Innovative Research Universities

Professor David Lloyd and Ms Renee Hindmarsh, Australian Technology Network

Professor Peter Lee and Dr Caroline Perkins, Regional Universities Network

Professor Ian Young and Ms Vicki Thomson, Group of Eight

Mr Malcolm White, TAFE Directors Australia

Mr Rod Camm, Australian Council of Private Education and Training

Dr Don Owers and Mr Adrian McComb, Council of Private Higher Education

Other experts in the field and students and staff of higher education institutions.

Committee to which bill is to be referred:

Education and Employment Legislation Committee

Possible hearing date(s):

To be determined by the Committee

Possible reporting date:

12 March 2015

(signed)

Senator the Hon Mitch Fifield

APPENDIX 5

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Regulator of Medicinal Cannabis Bill 2014

Reasons for referral/principal issues for consideration:

Explore Impact and feasibility of a regulating body for the medicinal use of cannabis

Possible submissi ons or evidence from:

Department of Health

Attorney Generals Department Therapeutic Goods Administration

Committee to which bill is to be referred:

Senate Legal and Constitutional Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date:

16 June 2015

(signed)

Senator Catryna Bilyk

APPENDIX 6

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Regulator of Medicinal Cannabis

Reasons for referral/principal issues for consideration:

To hear evidence from national and international experts and those involved in the production and manufacture of medicinal cannabis as well as state and territory governments considering similar legislation.

Possible submissions or evidence from:

Medical community, including pharmacologists and researchers; international suppliers, manufacturers and regulatory agencies; State and Territory Governments, consumers of medicinal cannabis

Committee to which bill is to be referred:

Legal and Constitutional

Possible hearing date(s):

March-April 2015

Possible reporting date:

March-April 2015

(signed)

Senator Rachel Siewert

APPENDIX 6

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee:

Name of bill:

Tribunals Amalgamation Bill 2014

Reasons for referral/principal issues for consideration:

Impact of amalgamation on:

Access to justice

Effectiveness of specialist jurisdictions currently exercised by SST, RRT

Possible submissions or evidence from:

Legal profession, social security and migration sectors

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:

24 March 2015

(signed)

Senator Catryna Bilyk

Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (11:52): I move:

That the report be adopted.

Senator MOORE (Queensland) (11:52): I move:

That at the end of the motion, add, "but, in respect of:

(a) the Higher Education and Research Reform Bill 2014, the Education and Employment Legislation Committee report by 17 March 2015.".

This amendment has been circulated to the chamber. It asks for a change of date to the Higher Education and Research Reform Bill 2014 report to 17 March 2015. In moving that amendment we just seek to have consistency in gathering all the information before this place. As we all know, yesterday this place endorsed a references committee inquiry into the impact of this legislation and the reporting date of that is 17 March. So we believe that all the available information about the background, the impact and the engagement of this very important legislation—significant legislation as we know—should be made known to the Senate at around the same time so that we then have an informed debate in this place.

Under the selection of bills process, we would have an earlier date of report for the legislation committee, which would then open up the opportunity for debate in this place on legislation before the references committee, which has terms of reference which are clearly into a range of issues around the legislation and its impact, has completed. So, on that basis, we ask for consistency of reporting date—again, so the Senate has access to all information available.

Senator BIRMINGHAM (South Australia—Assistant Minister for Education and Training) (11:54): I speak to Senator Moore's amendment. It is the government's position that the recommendation in the Selection of Bills Committee report should stand as adopted by the Selection of Bills Committee. Of course, as all members would appreciate, the Selection of Bills Committee operates on a consensus basis. It is my understanding that when that committee met last night there was consensus between all the parties and party whips participating in that process to accept this proposal.

This, of course, is the normal type of handling of legislation before this place. We need to appreciate that the higher education bills have been before the Senate previously and that they have been subject to Senate inquiry previously, but that the government has adopted some amendments to them. We have brought them back in an amended form and therefore we welcome scrutiny. We are open to scrutiny and we are open to having appropriate inquiries into this legislation.

We are so open to scrutiny that the government yesterday was quite happy to support and see passed through the very broad terms of reference for a references inquiry that were put forward by the opposition and other senators. We are quite happy to see those inquiries take place, but the Senate needs to recognise that that is a broad references inquiry with quite wide terms of reference. This is, as proposed in the Selection of Bills Committee, the normal process for handling legislation before this Senate: the legislation is referred to a legislation committee and it is considered in a timely manner through that legislation committee.

Of course, this is a timely approach; 12 March gives ample opportunity for the exploration of evidence and reporting. We are simply talking about five days difference at the end reporting date between what Senator Moore is proposing and what the Selection of Bills Committee has adopted. But, notably, that means that of the remaining sitting days through this session there are only six sitting days after Senator Moore's date left for the carriage or dealing with of this legislation, whereas if the government's date of 12 March is adopted there are eight sitting days through which debate can happen.

And we all know that higher education debate in this place attracts an awful lot of speakers! It attracts an awful lot of participants. The second readers list tends to be extraordinarily long, and so the government, in wanting to manage properly its legislative agenda through this place, thinks that having eight days available to it is appropriate and is a sensible way to make sure that everybody who wants to give a second reading speech will have ample opportunity to do so and that everybody who then wants to participate in a committee stage should, hopefully, have ample opportunity to do so.

Of course, during the course of debate—whenever it might be instigated in those eight days, if that occurs—the references committee is due to report back, assuming it reports back on time and on the terms agreed to by the Senate yesterday. But we think it is proper that there is certainty and that the legislation itself—as against and distinct from the broader issues encompassed in the terms of reference that were adopted yesterday—is properly examined, goes through the normal processes and comes back to the Senate before that final sitting fortnight so that it can be considered through that. My understanding is that Senator McKenzie, as chair of that legislation committee, is quite happy to cooperate with the references committee to minimise any difficulties for witnesses in the lodging of submissions and appearance at hearings, to ensure that it is as seamless and smooth for participants and senators as possible. All the government is seeking to do is manage its program and its legislation in a sensible way whilst ensuring that we can have the scrutiny that all senators want for this important reform.

So I would urge the Senate to accept the Selection of Bills Committee report as presented, as agreed to at its meeting last night.

The DEPUTY PRESIDENT: The question is that the amendment moved by Senator Moore be agreed to.

The Senate divided. [12:02]

(The Deputy President—Senator Marshall)

Question agreed to.

Original question, as amended, agreed to.

Senator SIEWERT (Western Australia—Australian Greens Whip) (12:07): I seek leave to amend business of the Senate notice of motion No. 2 standing in my name for today proposing a reference to the Community Affairs References Committee relating to a tender process.

Leave granted.

Senator SIEWERT: I move the motion as amended:

That the following matter be referred to the Community Affairs References Committee for inquiry and report by 26 March 2015:

The impact on service quality, efficiency and sustainability of recent Commonwealth community service tendering processes by the Department of Social Services, with particular regard to:

(a) the extent of consultation with service providers concerning the size, scope and nature of services tendered, determination of outcomes and other elements of service and contract design;

(b) the effect of the tendering timeframe and lack of notice on service collaboration, consortia and the opportunity for innovative service design and delivery;

(c) the evidence base and analysis underlying program design;

(d) the clarity of information provided to prospective tenderers concerning service scope and outcomes;

(e) the opportunities created for innovative service design and delivery, including greater service integration or improved service wrap-around, and the extent to which this was reflected in the outcomes of the tender process;

(f) the extent to which tenders were restricted to not-for-profit services, the clarity of these terms, and whether they changed during the notification and tender process;

(g) analysis of the types, size and structures of organisations which were successful and unsuccessful under this process;

(h) the implementation and extent of compliance with Commonwealth Grant Guidelines;

   (i) the potential and likely impacts on service users concerning service delivery, continuity, quality and reliability;

(j) the framework and measures in place (if any) to assess the impacts of these reforms on service user outcomes and service sustainability and effectiveness;

(k) the information provided to tenderers about how decisions are made, feedback mechanisms for unsuccessful tender applicants, and the participation of independent experts in tender review processes to ensure fairness and transparency;

(l) the impact on advocacy services across the sector;

(m) factors relating to the efficient and effective collection and sharing of data on outcomes within and across program streams to allow actuarial analysis of program, cohort and population outcomes to be measured and evaluated;

(n) the extent of contracts offered, and the associated conditions, to successful applicants; and

(o) any other related matters.

Question agreed to.

Senator URQUHART (Tasmania—Deputy Opposition Whip in the Senate) (12:17): At the request of Senator McLucas, I move:

That—

(a) there be laid on the table by the Minister representing the Minister for Health, no later than 3.30 pm on Thursday, 12 February 2015, copies of the following National Mental Health Commission documents in relation to its Mental Health review:

(i) the preliminary report which was completed during February 2014,

(ii) the interim report which was completed in June 2014, and

(iii) the final report which was completed by the end of November 2014; and

(b) the Senate not accept a public interest immunity claim by the Minister that tabling these documents would impact the Government's ability to properly respond to the Mental Health review because:

(i) the production of these documents is necessary to allow people living with mental illness, their representative organisations and service providers to have an open and honest conversation about the future of the mental health system in Australia,

(ii) the Mental Health review must be transparent for the community to have faith in the review outcomes,

(iii) there has been significant demand from the mental health sector for the reports to be made available to allow for an informed debate in the lead up to Government decision making around the 2015 16 Budget, and

(iv) the more than 1,800 organisations and individuals that made submissions to the review have the right to see these reports.

The DEPUTY PRESIDENT: The question is that general business notice of motion No. 608 be agreed to.

Senator MILNE (Tasmania—Leader of the Australian Greens) (12:24): I move:

That the following bill be introduced: A Bill for an Act to amend the law relating to country of origin labelling of food, and for related purposes.

Question agreed to.

Senator MILNE: I present the bill and move:

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

Question agreed to.

Bill read a first time.

Senator MILNE (Tasmania—Leader of the Australian Greens) (12:25): I move:

That this bill be now read a second time.

I table an explanatory memorandum relating to the bill and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

COMPETITION AND CONSUMER AMENDMENT (AUSTRALIAN COUNTRY OF ORIGIN FOOD LABELLING) BILL 2015

As a Parliament, we should be striving to ensure Australians have access to the information they need to make informed consumer choices, particularly in relation to food. We should also be seeking to support Australian producers, by ensuring that consumers can clearly identify Australian made products.

This Bill seeks to achieve these aims by amending the Competition and Consumer Act by creating specific provisions for country of origin labelling requirements for food.

Public Views

This is an issue that has gained considerable public momentum since we first reviewed this legislation in the Parliament. It is a topic on which there is a clear and united public view. Whenever the question is asked, overwhelmingly Australians tell us that they want to be able to easily identify and buy Australian-grown food, and overwhelmingly they are frustrated in that desire by current country of origin labelling.

As surveys conducted by consumer group CHOICE illustrate, Australians care about knowing if their food was grown and/or manufactured in Australia. This is also reflected in Roy Morgan polling, which found that 89% of respondents indicated that it was important the food they buy is Australian, and 82% indicating that it is important that the food is packaged in Australia.

The legislation currently in place does not reflect the importance placed on accurate country of origin labelling by consumers. We should be striving to improve current practices, which is what this Bill seeks to achieve.

Current Practices are Misleading

Unfortunately for consumers, the majority of whom do see buying Australian-made as important, identifying local products can be very difficult, with current regulations lax and sometimes misleading. Though the Food Standard Code requires the country of origin to be stated on the label, there are many loopholes easily exploited by manufacturers that ultimately confuse consumers.

For example, a product can state it is 'Made in Australia', so long as 51% of the value of the product has been 'substantially transformed' in Australia – including not just the consumable product itself, but also the packaging. In theory, a product can be completely imported, but simply mixed or packaged locally and still be labelled 'Australian Made'. Research by CHOICE highlighted that "only 12% [of consumers] were able to accurately identify the meaning of 'Made in Australia'''.

As the Blewett Food Labelling Review highlighted, "Consumer knowledge of and trust in the food system is conveyed and reinforced via the food label…Labels are a key communication link between food growers, manufacturers, health professionals, governments and communities." As a Parliament, we need to ensure that this communication link is trustworthy and straightforward for consumers; that is what this legislation seeks to achieve.

What the Bill d oes

This Bill acts to allay concerns surrounding food labelling by making it easier for consumers to access clear, accurate information about their purchases through the creation of a simple three-tier standard of labelling for food with any form of Australian origin or processing.

In the first instance, it retains the well-established premium label of 'Product of Australia'; all the significant ingredients and processing must have occurred in Australia in order to make this claim.

For fresh unpackaged food, it also allows the use of 'Grown in Australia' as this is a clear and now well-established and understood claim.

Secondly, for food that has been manufactured in Australia, that is substantially transformed, it requires such packaged food to be labelled 'Manufactured in Australia'. This term is specified to replace 'Made in Australia' because consumer research has shown that people confuse the term 'Made in', thinking it denotes the origin of the food, not just where it was processed.

This amendment will achieve two important improvements:

it will clarify for consumers that the label is about where the food has been processed, not where the ingredients are from, and so provide a strong label identifying local manufacture to help Australians support local jobs in food processing; and

it will help prevent imported food from masquerading as Australian content by making it clear that this label only speaks to the processing, not the ingredients.

A further reform in this Bill is that it provides for the creation of regulations to provide clear guidance on the meaning of 'substantial transformation' in relation to food processing. It is clear from the evidence that understanding what qualifies as food manufacturing—that is substantial transformation—is a grey area, and some companies push the envelope in their claims.

It must be remembered that the purpose of the substantial transformation test is to reward significant investment and jobs in local food manufacturing. The system breaks down if manufacturing claims are made for much lesser and often more transient investments.

Therefore this Bill provides for a regulation to list processes that do not qualify as substantial transformation. This would significantly increase the clarity and transparency of 'Manufactured in Australia' claims, and support local food processing jobs.

It is worth noting too, that historically the companies investing in genuine food manufacturing in Australia are the most likely to also be sourcing local food for their products. To further encourage clear labelling of Australian ingredients, this Bill allows for the voluntary highlighting of local content that comprise significant ingredients—for example a chocolate might therefore be labelled "Manufactured in Australia from Australian milk".

This allows for the fact that there are some foods manufactured in Australia that don't use all local ingredients for the simple reason that Australia does not produce them in sufficient quantity for it to be possible—cocoa beans for making chocolate being a good example. But it does allow for local significant ingredients to be differentiated, which in turn means that consumers can reward local content and greater transparency at the cash register.

Finally the Bill establishes a third tier of labelling to deal with packaged food that does not have sufficient Australian content or processing to qualify for the other claims. At the moment these products use the least understood—by as little as 3% of Australians in fact—and most frustrating current country of origin claims, those known as 'qualified claims'—terms such as 'Made from imported and local ingredients'.

These vague catch-all statements at best confuse and frustrate consumers, and they certainly don't support informed decisions. This Bill prohibits them, and instead requires any packaged food that has some level of Australian processing or content, but that does not meet 'Product of' or 'Manufactured in' claims, to simply say "Packaged in Australia".

By providing three tiers of country of origin claims, this Bill offers an opportunity to greatly simplify a complex and frustrating area of food labelling. It responds specifically to years of consumer research, showing that Australians equally want to know where their food is from, and where it was processed.

Conclusion

Consumers want to make informed purchases, and they want to support Australian producers, and they want clear country of origin labelling that allows them to easily identify and choose to purchase food grown and processed in Australia. As Parliamentarians, we need to be facilitators of this process. In order for consumers to fulfil this desire, we need to make sure they have access to accurate information, and that means ensuring our food labelling laws are robust.

I believe this Bill offers a tangible step forward to improving country of origin labelling for food, one that has support from organisations representing Australian growers, local jobs in food manufacturing and information transparency for consumers.

There are no doubt further reforms we could and should consider over time. It is still difficult, for example, for some forms of local processing that support local jobs to get recognition under these proposed labelling claims—and the existing system. However, the ability to pursue further improvements should not be used as a reason to oppose the reforms this Bill offers.

For Australian farmers and food manufacturers, this Bill is urgent. As the news continues to be filled with stories of Australian food manufactures going into administration or slashing their intake of local content, and as Australian farmers struggle to keep market share at home against a rising tide of cheap imports, it has never been more timely to help Australians identify and buy local food. It is time to act.

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

Leave granted; debate adjourned.

Senator CAMERON (New South Wales) (12:43): I rise in support of this legislation. Efforts to improve energy efficiency continue to be the fastest and cheapest way to reduce greenhouse gas emissions and mitigate the effects of climate change. Australians have embraced their responsibility to reduce energy consumption at home; however, there are further efficiencies to be realised in our workplaces. The Commercial Building Disclosure—CBD—scheme was initiated by the Labor government in 2010. It requires owners and operators of large commercial office buildings to audit the energy efficiency of their buildings and disclose this information to potential purchasers and leasers.

This information empowers the business community to make concerted decisions about their energy consumption, as well as better understand their associated ongoing costs. Accounts show that the commercial building sector's contribution to greenhouse gas emissions is at 10 per cent of Australia's total emissions, and this figure is rising. This source of emissions must be addressed as part of our broader strategy to reduce Australia's contribution to global climate change.

I note that this amendment bill addresses issues that have been raised by key stakeholders in an attempt to reduce red tape in regard to complying with the existing legislation. However, I also know that stakeholders harbour concerns regarding this government's commitment to energy efficiency measures into the future. I call on the government to show leadership in supporting Australians to improve energy efficiency so that our community and our economy can take advantage of the opportunities that these efforts create. But Labor supports this bill.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (12:45): I thank senators for their contributions.

Question agreed to.

Bill read a second time.

Senator GALLACHER (South Australia) (12:46): 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) (12:46): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (12:46): The Civil Law and Justice Legislation Amendment Bill implements a variety of minor technical amendments to a range of Commonwealth acts within the Attorney-General's remit. The bill amends the Bankruptcy Act, the Copyright Act, the Court Security Act, the Family Law Act, the Evidence Act, the International Arbitration Act and the Protection of Movable Cultural Heritage Act. For the most part this bill is concerned with worthy but minor and technical issues. Some measures are directed simply at the at the readability and comprehensibility of Commonwealth legislation by, for instance, inserting notes into the Court Security Act or including in the EM to the Evidence Act a table comparing provisions in different jurisdictions.

Other measures in the bill are consequential to be good, substantive work of the Labor government. The Bankruptcy Act is amended to clarify that payments under the NDIS are not available to creditors in the event of a bankruptcy. The International Arbitration Act is amended to clarify the UN Commission on International Trade Laws Model Law on International Commercial Arbitration, which the Labor government implemented into Australian law in 2010, applies retrospectively to arbitration agreements entered into before 2010. The Court Security Act introduced by Labor to ensure the security and safety of the federal courts for all who use them is given technical improvements.

There is one measure of particular importance in the bill, and that is the amendment of the Copyright Act to introduce an electronic deposit scheme for the National Library of Australia. The introduction of this scheme follows two consultations undertaken by the Labor government. Labor welcomes the introduction of the scheme, which will bring the National Library's operations up to date with modern technology and make the deposit scheme both more expansive and more efficient. It is of obvious importance that the large amount of Australian cultural output now produced in digital form be preserved by the National Library.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (12:49): The Civil Law and Justice Legislation Amendment Bill will amend the Copyright Act to reduce the impact of the legal deposit scheme on publishers. At present, publishers of certain literary, dramatic, musical or artistic works must deliver copies of their works in print format. The amendments will provide for publishers to submit their works electronically, which will reduce the time and cost burden on the industry.

The Court Security Act will be amended to clarify the process by which court security orders can be varied and revoked. Minimising confusion creates a fairer and more accessible justice system. The Court Security Act amendments will also address court management issues by extending the authority to hold and dispose of unclaimed dangerous items. Amendments to the Evidence Act will increase consistency with the Uniform Evidence Bill for greater cross-jurisdictional compliance. The bill will also amend the International Arbitration Act to clarify its application, providing certainty for private parties who entered into arbitration agreements before the International Arbitration Act was last amended in 2010.

Minor technical amendments contained in the bill will improve the operation of the Family Law Act by correcting errors and ensuring the use of consistent language. The bill will also amend the Family Law Act to explicitly permit the provision of certain information relating to family law proceedings to child welfare authorities. This amendment will ensure that child welfare authorities have access to any relevant material to enable them to better protect children. The amendments to the Bankruptcy Act will ensure that assistance received under the National Disability Insurance Scheme is not distributed to a bankrupt's creditors. The amendments also modernise the drafting of offences under the act and ensure that they have kept up with modern technology.

Additionally the amendments will enhance the Australian Financial Security Authority's capacity to act as a special trustee for other government agencies. In its special trustee role the Australian Financial Security Authority seizes and sells property pursuant to a court order in relation to a debt owed to the Commonwealth or a Commonwealth agency.

Significantly, the bill will facilitate the removal of obsolete and redundant clauses. For example, the bill will amend the Family Law Act to remove obsolete requirements for annual publication of certain information, as well as to repeal an obsolete definition. The bill will also amend the Evidence Act to remove obsolete provisions and references to the operation of the Evidence Act in relation to the Australian Capital Territory. The bill also reflects the government's commitment to better equip Australia to meet the needs of industry and consumers in the digital age. For example, the amendments to the Copyright Act will allow the National Library of Australia to collect not only our print history but also our digital history.

In conclusion, this bill will make minor and technical amendments to provide more clarity to legislation administered by the Attorney-General's portfolio. The combined effect of these amendments will improve the efficiency and operation of the civil justice system and provide individuals with greater access to justice. I thank senators for their contributions.

Question agreed to.

Bill read a second time.

Senator GALLACHER (South Australia) (12:52 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) (12:52): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (12:52): The Federal Courts Legislation Amendment Bill 2014 implements several minor changes to the Federal Court of Australia Act and the Federal Circuit Court of Australia Act. The bill will give the Federal Circuit Court jurisdiction over certain tenancy disputes involving the Commonwealth. The bill will clarify the ability to use reasonable force in entering a premises to execute an arrest warrant, which is unclear under the legislation as it presently stands. The bill tightens provisions intended to limit appeals from minor interlocutory decisions in the federal courts. A range of minor technical amendments are also made to each act to improve clarity and drafting.

Labor supports this bill, which will make a number of minor but worthy improvements to our federal court system.

Senator WRIGHT (South Australia) (12:53): I rise to speak to the Federal Courts Legislation Amendment Bill 2014, a bill that makes changes to the procedure and jurisdiction of the Federal Court and the Federal Circuit Court.

As the spokesperson on legal affairs for the Australian Greens, and as a person who is extremely concerned that all Australians be able to understand and resolve legal disputes and achieve fair outcomes, I take a keen interest in bills that change how some of our busiest courts work in practice. If the term 'access to justice' is to have any true meaning, it must translate into concrete laws and policies that ensure that every Australian can seek fair outcomes and that ensure that legal issues can be resolved on the merits of the claim and not just the size of someone's wallet.

Sadly, this government has a track record of slashing funding to the community organisations and legal aid commissions that provide vital legal information, advice and representation to those who need it most. For this reason, it is always important to carefully examine any government-proposed changes to the existing legislative framework relating to the federal courts.

In many respects, the Federal Courts Legislation Amendment Bill 2014, which we are discussing today, is uncontroversial. It makes changes to procedures relating to appeals for minor procedural decisions, such as decisions to change a hearing date. It also clarifies the powers that can be exercised when the Federal Court issues a warrant for an arrest. These changes have not been met with any resistance from community legal organisations or professional bodies. In many respects they add clarity and consistency to already complex procedural rules, and to that end the Australian Greens do not oppose these changes.

However, the bill also seeks to make important changes to the jurisdiction of the Federal Circuit Court to enable that court to hear tenancy disputes where the Commonwealth is a party to the dispute. Perhaps more significantly, the bill also authorises further changes to the jurisdiction of the Federal Circuit Court to occur via regulation. This arrogant approach to law making, where the government seeks to give itself the power to make potentially very significant changes to the federal justice system while bypassing the full legislative process, has become a signature move by the Abbott government. It is an approach that offends rule-of-law principles that demand that executive powers be carefully defined by law and that reject the notion that it is up to the executive to determine for itself what powers it has and when and how they may be used. This principle is particularly poignant when the powers in question relate to the jurisdiction of the judicial arm of government.

These concerns have led the Senate Standing Committee for the Scrutiny of Bills to observe:

The conferral of jurisdiction on federal courts and the modification of such jurisdiction are matters of considerable importance and thus may be more appropriately dealt with in primary legislation. In addition, these matters may raise complex legal issues.

The Australian Greens share these concerns. The requirement that any substantive changes to the jurisdiction or procedures of the Federal Circuit Court be made via the full legislative process is an entirely reasonable expectation to have of a government that says it is committed to the rule of law. As currently drafted, this aspect of the bill reflects what has become a typical legislative overreach by this arrogant and out-of-touch government.

The bill also provides the opportunity for parliament to reflect on the devastating impact this government's policies and funding decisions have had on Australians' right to access quality legal information and advice. Across Australia, courts and legal assistance services are under increasing pressure to meet demand, and hundreds of thousands of Australians are being failed by a complex and costly legal system. This sad situation has been exacerbated by the Abbott government's crash-and-burn approach to ripping funding out of the legal assistance sector.

The people being failed by this system are not just those suspected of, or charged with, wrongdoing. They include some of the most vulnerable and innocent among us, such as children experiencing poverty and family violence or women experiencing domestic or sexual violence in remote communities. They also include the most ordinary among us: families seeking to clarify the guardianship arrangements for elderly parents, divorcing couples seeking to finalise property settlements or neighbourhoods seeking to protect their local environment from harm or degradation—these are Australians across the board.

The Australian Greens believe that the current failure to ensure access to justice for everyone in our community, and not just those who have deep pockets, has deep and long-lasting impacts on social cohesion in Australia, community safety and taxpayers' dollars. Just like a sick person who is denied ready access to health care, an unresolved and critical legal need can infect and devastate families and communities and lead to expensive, complex problems for the taxpayer to resolve down the line.

It is not just the Australian Greens who feel this way; these concerns have been voiced by judges, court administrators, the legal profession and social service organisations. There are more and more voices being raised to express these concerns. They have also been substantiated by evidence presented by PricewaterhouseCoopers and, most recently, by the Productivity Commission's own detailed inquiry into access to justice.

While the other parties, the old parties, turn the other way, the Australian Greens remain a strong, caring, progressive voice for improved access to justice. I encourage all senators to consider how the changes in this bill will work in practice, given the devastated legal assistance sector and the many unsurpassable barriers for ordinary Australians today to access quality legal advice.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:00): The purpose of the Federal Courts Legislation Amendment Bill 2014 is, firstly, to make minor technical and uncontroversial amendments to improve the operation and clarity of the Federal Court of Australia Act 1976 and the Federal Circuit Court of Australia Act 1999. Secondly, the bill will confer jurisdiction on the Federal Circuit Court of Australia to hear certain Commonwealth tenancy disputes because this is the most consistent and cost-effective forum for hearing these disputes.

The amendments to the Federal Court of Australia Act will clarify that appeals cannot be made from minor procedural decisions, such as decisions to change or not to change hearing dates. This will reduce unnecessary delays in the court system and ensure a more efficient administration of justice.

The amendments will also clarify that police officers and court sheriffs can use reasonable force to enter premises to execute an arrest warrant for persons who are the subject of proceedings for contempt of court or for summary offences. This resolves current uncertainty about whether officers can use reasonable force, as there have been occasions when arrest warrants have not been executed because of this uncertainty.

The amendments to the Federal Circuit Court of Australia Act will confer jurisdiction on the Federal Circuit Court of Australia to hear certain Commonwealth tenancy disputes. These amendments are vital in order to provide a consistent and cost-effective forum to hear these disputes. At present, in most jurisdictions, the applicable law provides for Commonwealth tenancy disputes to be resolved in state or territory tribunals, which can lead to inconsistency of approach. While superior courts may also be able to hear these matters, it is not considered an appropriate use of these courts' resources as it may lengthen the dispute resolution process and increase costs. This means that there is currently no suitable or affordable forum in which to hear these disputes. Conferring jurisdiction on the Federal Circuit Court to hear Commonwealth tenancy disputes will provide a more efficient option for parties involved in these disputes.

Other minor amendments to the Federal Circuit Court of Australia Act will clarify specific limitations on the award of costs prescribed in other legislation, such as public interest disclosure legislation. This will clarify the limits on the Federal Circuit Court's jurisdiction to award costs, and will assist readers to locate related provisions.

I thank Senators for their contributions.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Gallacher ) (13:02): 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) (13:02): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (13:03): The Acts and Instruments (Framework Reform) Bill 2014 updates and consolidates the arrangements for the registration, tabling, scrutiny and repeal of a range of Commonwealth instruments. The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 2 December last year. The committee recommended that the bill be passed.

The bill implements the recommendations of a statutory review of the Legislative Instruments Act 2003 in 2008 led by a committee comprising Mr Anthony Blunn AO, Mr Ian Govey and Professor John McMillan AO. The bill makes a number of reforms to the arrangements for delegated legislation under the Legislative Instruments Act 2003, which sets out a comprehensive regime for the registration, tabling, scrutiny and repeal of legislative instruments. It consolidates the Acts Publication Act 1905, which deals with statutes, and the Legislative Instruments Act 2003 into a new legislation act. It integrates the database of Commonwealth acts and the federal register of legislative instruments into a single federal register of legislation. It provides that Commonwealth instruments which are not legislative in character, and therefore not captured by the present Legislative Instruments Act, be registered on the federal register of legislation as a new category of notifiable instrument. Finally, the bill makes various other technical changes to consolidate the handling of Commonwealth instruments.

The bill also makes changes to the powers of the First Parliamentary Counsel, enabling the First Parliamentary Counsel to make corrections and minor editorial changes, in preparing a registered compilation of acts and instruments, that do not change the effect of the legislation, and to make rules relating to the register.

The power given to the First Parliamentary Counsel to make editorial changes to acts or instruments as they appear on the register is appropriately closely constrained. The bill is clear that the First Parliamentary Counsel may not change the effect of an act or instrument.

'Editorial change' is defined in the bill to make it clear that only technical drafting changes are intended. The definition includes, for example, spelling and punctuation matters, correcting numbering, and changes to known operative parts of statutes such as tables of content or summaries. The bill provides that where this power is exercised a statement must be included in the instrument outlining the editorial change or changes which have been made.

Speaking in the other place, the shadow Attorney-General, Mark Dreyfus QC MP, noted that he would expect that, as is usual practice in other areas of its responsibilities, the Parliamentary Counsel would issue clear guidance about how the power is to be exercised. I note that the committee shared this view and recommended that there should be clearly articulated principles for the use of the FPC's correction and editorial powers. Happily, the Attorney-General advised the committee that the federal Parliamentary Counsel will issue guidance on the use of the editorial powers proposed in the bill. I would like to reiterate the committee's view that this guidance should be released at the earliest opportunity.

Mr Dreyfus also said he expected that, alongside the requirement under this bill to give notice in particular instruments of when the power has been exercised, the First Parliamentary Counsel would report to the parliament about use of the power across the whole statute book. Labor welcome the commitment by the Attorney-General that the OPC will include a section in its annual report summarising the use of the correction power and the editorial change power in each financial year. As the committee noted in its report:

This reporting will facilitate scrutiny and oversight of these powers by the Parliament, including through the Senate estimates process.

Labor support this bill. It is important that delegated legislation and other Commonwealth instruments are dealt with as clearly and transparently as possible. We support any measure which makes Commonwealth instruments easier to locate and easier to understand.

I understand there will be a government amendment to the bill. The amendment will be supported. It arises from a recommendation by the Senate Legal and Constitutional Affairs Legislation Committee's report on the bill:

The committee recommends that item 83 of Schedule 1 of the bill be amended to require a review of the operation of the proposed Legislation Act 2003, in similar terms to existing section 59 of the Legislative Instruments Act 2003, to be conducted five years after commencement.

The opposition have raised this matter with the shadow Attorney-General; we are pleased that the shadow Attorney-General has agreed to this amendment. So Labor will commend to the house not only the bill but also the amendment.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:09): I thank Senator Cameron for his contribution. I imagine he is also glad that the Attorney-General, as well as the shadow Attorney-General, agreed!

Senator Cameron: Yes!

Senator RYAN: I table a replacement explanatory memorandum relating to the Acts and Instruments (Framework Reform) Bill 2014.

Question agreed to.

Bill read a second time.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:10): I table a supplementary explanatory memorandum relating to the government amendment to this bill, and I move the government amendment:

(1) Schedule 1, item 83, page 60 (lines 30 and 31), omit the item, substitute:

83 Section 59

   Repeal the section, substitute:

59 Review of operation of this Act

(1) During the 3 months starting on the fifth anniversary of the commencement (the framework reform commencement)of Schedule 1 to the Acts and Instruments (Framework Reform) Act 2015, the Attorney‑General must appoint persons to a body to review the operation of this Act.

(2) A person appointed to the body may resign from it by giving the Attorney‑General a signed notice of resignation.

(3) The body must review all aspects of the operation of this Act and any related matters that the Attorney‑General specifies.

(4) The body must give the Attorney‑General a written report on the review within 15 months after the fifth anniversary of the framework reform commencement.

(5) The Attorney‑General must cause the report to be laid before each House of the Parliament within 6 sitting days of the House after the Attorney‑General receives the report.

This amendment inserts a new section 59 into the act. New section 59 requires that the operation of the act be reviewed five years after changes made by this bill commence. The amendment implements a recommendation of the Senate Legal and Constitutional Affairs Legislation Committee. The committee recommended that this house pass the bill subject to a recommendation that a review requirement be inserted, as is outlined in this amendment.

Senator CAMERON (New South Wales) (13:11): I indicate once again that Labor support the amendment—and we are also happy that the Attorney-General and shadow Attorney-General support this proposition!

Senator WRIGHT (South Australia) (13:11): I also indicate that the Australian Greens support this amendment; it is certainly a positive move.

The TEMPORARY CHAIRMAN ( Senator Gallacher ) (13:11): The question is that the amendment be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.

Senator RYAN (Victoria—Parliamentary Secretary to the Minister for Education) (13:12): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator XENOPHON (South Australia) (13:13): I indicate that I have concerns in relation to the Environment Legislation Amendment Bill 2013 about the retrospectivity of the measures in schedule 1, although I note that the government introduced amendments in the House to limit its applications. While these amendments improve the schedule to some extent, they do not fully address my concerns in this regard. I note the Australian Greens have circulated an amendment in this regard and I indicate that I will support that amendment. However, I do believe it is incredibly important to acknowledge the increased protections this bill will introduce for sea turtles and dugongs. I also indicate that I will be supporting the Greens' amendments in respect of these provisions. I believe they are worthy measures relating to the protection of Australia's wildlife and the Great Barrier Reef. I am also proposing amendments to this legislation in relation to fracking, because fracking is covered by environment legislation, and I do not believe that we have done enough to address these concerns.

My proposed amendments alter the provisions of the Environment Protection and Biodiversity Conservation Act relating to the protection of water resources to include fracking activities. The amendments will introduce fracking activities into the purview of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development and the associated advice and reporting requirements. I do not believe that these requirements are unreasonable. I do not believe that these requirements are overly onus when one considers the impact that fracking can have on water tables and on prime agricultural land in this country. If the amendment does not pass I will be pushing for an inquiry by the Environment and Communications References Committee into fracking activities and the protection of water resources and agricultural activities. I hope my colleagues in this place will acknowledge the need for significant policy development in this area. I believe that a committee inquiry will play a key role in this. I believe that these issues are vitally important and they must be addressed.

I hope that a Senate inquiry will lead to a bipartisan position that will give us a path to move forward and to ensure that fracking activities are appropriately overseen from an environmental point of view. Linked very closely to that is the impact that fracking can have on water tables and on prime agricultural land. The very serious concern that I have is not done enough on this. The current legislative framework, as it deals with coal seam gas, does not include fracking, and that is of particular concern in my home state in respect of the Limestone Coast. The Limestone Coast Protection Alliance—Dennis Vice is one of the leaders of that group—and the many other people I have met extensively in relation to this have legitimate concerns. They are not against development. They are not against appropriate mining activities, but they do have a concern that there does not appear to be an appropriate risk based approach to this. We ought to use precaution if we are going down the path of fracking, which could affect the water table and prime agricultural land. Mr Acting Deputy President Gallacher you as a South Australian may or may not be familiar with the fine wines of the Coonawarra region. I hope I will not be pulled up by you on this, but your smile indicates that you are. I am very proud of the South Australian wine industry, indeed of the Australian wine industry. They have genuine concerns—for instance, what benchmarks are there to ensure the fracking activities do not impact on the environment and do not impact on future agricultural production and the quality of that agricultural production?

We need to have a comprehensive national approach at the Commonwealth level to ensure that fracking activities are appropriately vetted and overseen. I understand that companies seeking to undertake fracking activities are concerned about what they feel could be an unnecessary additional burden of compliance, when they are already subject to state based approval processes, but, as we have seen with the Murray Darling basin, environmental resources and agricultural resources do not end at state borders, and the states do not have a track record of putting the national interest above their own—indeed, they are not obliged to. The changes I have put forward in my proposed amendment are vitally important in ensuring that we do not end up with the same infighting and neglect we have seen in previous years regarding the Murray-Darling Basin.

I look forward to debating these measures in the committee stage, but I think it is important that we acknowledge that a risk based precautionary principle approach in respect of fracking needs to be undertaken. All I am seeking to do, effectively, is extend the whole issue of an independent scientific panel going beyond coal seam gas to fracking activities more broadly. I note that I am in good company, the company of people such as Alan Jones, who has been outstandingly outspoken in respect of fracking. It might bemuse some in the coalition that Alan Jones is not on side with them on this issue, but I do not think they can afford to ignore Mr Jones and his views, which I think reflect widespread community concerns.

Senator BIRMINGHAM (South Australia—Assistant Minister for Education and Training) (13:19): I thank all senators for their contribution to this debate on the Environment Legislation Amendment Bill 2013. My recollection is that when this was being debated late last year there were some quite long contributions made at this stage and that they were numerous. I am pleased to see that today we are making much swifter progress. Senator Xenophon touched on some issues that I know will be covered with amendments, as I know Senator Waters did during her contribution to the debate. I will address the amendments as the Senate considers them.

In general, the bill provides additional protection for turtles and dugongs under the EPBC Act and the Great Barrier Reef Marine Park Act 1975 by increasing criminal and civil financial penalties for the killing, injuring, taking, trading, keeping or moving of a turtle or a dugong in a Commonwealth marine area and the taking or injuring of turtles and dugongs within the Great Barrier Reef Marine Park.

Our government is responding to the need for stronger protections for our threatened turtles and dugongs. Increasing concern, particularly in Far North Queensland, regarding illegal poaching and trading of turtles and dugongs requires this serious response. These turtle and dugong amendments implement our election commitment to triple the financial penalties for poaching and illegal transportation of turtle and dugong meat announced in our Dugong and Turtle Protection Plan during the election campaign.

Alongside the active Australian Crime Commission investigation, these penalties will serve as a greater deterrent to illegal activities threatening turtles and dugongs. The government's $2 million Indigenous specialised ranger program will also improve traditional management and compliance around turtles and dugongs in Queensland. Importantly, this bill does not impact on native title holders and their rights to exercise their native title right to harvest turtles and dugongs for cultural use. The Australian government's $700,000 Marine Debris Initiative will relieve turtles and dugongs as well as other species of the impacts of rubbish in the marine environment. An Australian government injection of $300,000 to the Cairns and Fitzroy turtle hospital will support continued care for injured turtles.

Overall, this bill is part of the government's comprehensive and strong commitment to protect endangered species, in particular, in this case, turtles and dugongs, which are so iconic to parts of Northern Australia. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

Senator WATERS (Queensland) (13:22): I wish to speak to a series of amendments that the Greens will move, firstly amendment (2) on revised sheet 7442.

The reason we will move that amendment is that this bill has two parts that passed the House of Representatives. The first part of the bill would seek to allow the environment minister to ignore conservation advice. In other words, this bill was originally drafted to allow the environment minister to ignore scientific advice about the impacts on threatened species of the very project that the environment minister was being asked to approve or refuse. The sheer nonsense of that amendment and the embarrassment that the environment minister should have felt to move that amendment to our laws unfortunately did not stop him from doing so.

In the House, the bill was amended and the ability of the environment minister to ignore science was time-limited. They said, 'Well, we won't let you ignore science forevermore. But from 31 December 2013 and prior it was fine if you ignored science then.' The Greens hold the strong view that you should never ignore science, and the audacity of the environment minister himself, being the person to move this amendment to the act to allow him to ignore science and to allow him to take decisions that fly in the face of advice about threatened species conservation, unfortunately speaks to the true attitude of this government to the environment.

So that is exactly why the Greens are moving today to delete that whole part of the amending bill. We do not think that the environment minister should be able to ignore science. We have conservation advisers for a reason, and that reason is to ensure that threatened species are indeed protected by our federal environmental laws from impacts that are likely to have a significant impact upon them. I am really pleased that in the course of discussions with the folk in this room that I believe the Greens will have the support of the entire chamber to say that, 'Actually, science is kind of important and threatened species actually do deserve to have our proper consideration when the minister is making a decision about whether to approve development that might damage them.'

With that said, I move amendment (2) on revised sheet 7442:

Schedule 1, page 3 (lines 1 to 26), to be opposed.

Senator BIRMINGHAM (South Australia—Assistant Minister for Education and Training) (13:25): The government accepts the amendment proposed by the Greens that Senator Waters just spoke to. We do not necessarily accept all the arguments that Senator Waters has made in that regard. We do believe that it would be preferable were those amendments to have been made, but the government is determined—and Mr Hunt in particular is determined—to ensure that the turtle and dugong protection that the government has pursued and was committed to at the election is delivered upon. We understand that arrangements have been struck with the Australian Greens that will enable those protections to be delivered upon, and we do not want to jeopardise our policy commitment and the serious intention the government has to deliver up on that promise in relation to turtles and dugongs by having it complicated by other matters within this bill.

I thank Senator Waters for her cooperation in working through issues with the government in terms of some of the amendments that were there, and indicate, as I said, the government's acceptance of this amendment from the Greens.

Senator WATERS (Queensland) (13:26): I now want to move to a substantive amendment which relates to increasing the penalties and increasing the protection for threatened species across the board.

This government has sought to introduce increased protection just for turtles and dugongs. We will have some more to say about that, but if the argument is that the penalties for turtles and dugongs are inadequate then surely that argument would logically extend to all of the penalties for the take of threatened species being indeed inadequate. And so we will move this amendment, the purpose of which is to say, 'Well, clearly, protection for threatened species is inadequate and does need to be increased.' This amendment would increase the penalties for the unlawful take of threatened species across the board, so that we are not just cherry picking and saying that turtles and dugongs deserve additional protection but no other threatened species do. I think that is a nonsensical approach and so we will move to say that all species deserve increased protection.

But I want to take the opportunity to mention a few other points in this regard. Unfortunately, there have been massive staff cuts by this government to the environment department. I am concerned that the existing penalties for threatened species, including turtles and dugongs, do not have the personnel to be able to be enforced. The environment department has lost hundreds of staff. Already its budget is shrinking, and shrinking and shrinking. Unfortunately, our environmental laws are simply not being enforced. So we will move an amendment to say, 'Let's increase the penalties, but you have to enforce the laws that you have or they simply do not do anything on the ground.' So I make the point that if the government is actually serious about increasing the penalties for some species but, sadly, not serious about increasing them for all species then you have to increase the enforcement staff and you actually have to get serious about not slashing the people who are responsible for implementing these laws.

I want to speak to the impact of the focus on turtles and dugongs, because it has been quite a controversial issue. A lot of Indigenous communities in the Great Barrier Reef have been really laudable in taking voluntarily measures to stop hunting turtles and dugongs in a cruel manner—and we commend those communities for that approach. Indeed, the best approach to this management issue is to work with communities and make sure that the take of turtle and dugong that occurs in accordance with native title rights and customs does so in a manner that is at a sustainable level, that is in accordance with traditional custom and is not for commercial trade, and that, most importantly, is done humanely.

Like anyone else who saw the footage of some of the spearings of turtles, which were not conducted in a humane manner, I found it abhorrent. That is the reason why the Greens are supporting the increase in penalties for turtles and dugongs, but we still are of the firm view that you need to work with communities, and this kind of punitive approach, particularly when there are limited enforcement staff to actually make sure the rules are complied with, will not be the most effective way of stopping the cruel treatment of turtles and dugongs. We appreciate the need to address this issue. We think that the chosen way of going about it is not the most effective one, but it is important that we take steps to address the problem.

If the government is so concerned about turtles and dugongs, why on earth is it letting the biggest ever dredging and offshore dumping program that the Great Barrier Reef has ever seen roll out in this beautiful world heritage area? We know that the water quality impacts of dredging of the seabed and the dumping of that seabed, either in the water or closely onshore—as Minister Hunt is now saying he will require, though we are yet to see any change of law in that regard—are devastating to seagrass, and we know that seagrass is both the food source and the habitat for turtles and dugongs.

If the government is genuinely concerned about the health of turtle and dugong populations in the Great Barrier Reef, why on earth are you letting this massive dredging and dumping program roll out? It is because of your support for the fossil fuel sector. We know that. It is because you do not think that climate change is real, you want to send more coal ships through the Great Barrier Reef, you want to make the climate worse. We get that. But if you have at least got a concern about turtles and dugongs, think about the impact on seagrass from all of that sediment smothering the seagrass and stopping it growing, stopping that food source, stopping that breeding ground.

With that said, I seek leave to move amendments (1) to (19) and (21) to (26) on sheet 7473.

Leave granted.

Senator WATERS: I move amendments (1) to (19) and (21) to (26) on sheet 7473 together:

(1) Schedule 2, heading, page 4 (lines 1 and 2), omit "turtles and dugong", substitute "listed species and communities".

(2) Schedule 2, item 1, page 4 (lines 6 to 13), omit the item, substitute:

1 Subsection 196(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(3) Schedule 2, item 3, page 4 (lines 16 to 21), omit the item, substitute:

3 Subsection 196A(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(4) Schedule 2, item 5, page 4 (line 24) to page 5 (line 3), omit the item, substitute:

5 Subsection 196B(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(5) Schedule 2, item 7, page 5 (lines 6 to 11), omit the item, substitute:

7 Subsection 196C(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(6) Schedule 2, item 9, page 5 (lines 14 to 21), omit the item, substitute:

9 Subsection 196D(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(7) Schedule 2, item 11, page 5 (lines 24 to 29), omit the item, substitute:

11 Subsection 196E(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(8) Schedule 2, items 13 to 15, page 6 (line 3) to page 7 (line 3), omit the items, substitute:

15 Subsection 211(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(9) Schedule 2, item 17, page 7 (lines 6 to 11), omit the item, substitute:

17 Subsection 211A(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(10) Schedule 2, item 19, page 7 (lines 14 to 21), omit the item, substitute:

19 Subsection 211B(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(11) Schedule 2, item 21, page 7 (lines 24 to 29), omit the item, substitute:

21 Subsection 211C(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(12) Schedule 2, item 23, page 8 (lines 3 to 10), omit the item, substitute:

23 Subsection 211D(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(13) Schedule 2, item 25, page 8 (lines 13 to 18), omit the item, substitute:

25 Subsection 211E(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(14) Schedule 2, items 27 to 29, page 8 (line 21) to page 9 (line 19), omit the items, substitute:

29 Subsection 254(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(15) Schedule 2, item 31, page 9 (lines 22 to 27), omit the item, substitute:

31 Subsection 254A(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(16) Schedule 2, item 33, page 10 (lines 1 to 8), omit the item, substitute:

33 Subsection 254B(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(17) Schedule 2, item 35, page 10 (lines 11 to 16), omit the item, substitute:

35 Subsection 254C(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(18) Schedule 2, item 37, page 10 (lines 19 to 26), omit the item, substitute:

37 Subsection 254D(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   Imprisonment for 2 years or 3,000 penalty units, or both.

Note: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(19) Schedule 2, item 39, page 11 (lines 1 to 6), omit the item, substitute:

39 Subsection 254E(1) (notes 1 and 2)

   Repeal the notes, substitute:

Penalty:   1,500 penalty units.

Note: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(21) Schedule 2, item 45, page 12 (line 13), omit "turtle or dugong", substitute "listed species".

(22) Schedule 2, item 45, page 12 (lines 18 to 22), omit paragraphs 38BA(3A)(c) and (d), substitute:

   (d) the animal is a member of:

      (i) a listed marine species; or

      (ii) a listed migratory species; or

      (iii) a listed threatened ecological community; or

      (iv) a listed threatened species;

(23) Schedule 2, item 46, page 12 (line 30), omit, "(c)".

(24) Schedule 2, item 51, page 13 (lines 19 to 22), omit paragraph 38GA(9)(b), substitute:

   (b) the animal is a member of:

      (i) a listed marine species; or

      (ii) a listed migratory species; or

      (iii) a listed threatened ecological community; or

      (iv) a listed threatened species;

(25) Schedule 2, item 51, page 13 (line 30), before "species", insert "protected".

(26) Schedule 2, item 53, page 14 (lines 12 to 15), omit paragraph 38GB(6)(c), substitute:

   (c) the animal is a member of:

      (i) a listed marine species; or

      (ii) a listed migratory species; or

      (iii) a listed threatened ecological community; or

      (iv) a listed threatened species;

Senator BIRMINGHAM (South Australia—Assistant Minister for Education and Training) (13:32): Very briefly, the government will not be supporting these amendments. This policy about tripling penalties in relation to turtles and dugongs is one we took to the election. We have been very transparent about that. It is our belief that that is appropriate. It has followed extensive community consultation by Mr Hunt, by the member for Leichhardt, Mr Entsch, and by other members of the government and, indeed, through other quarters such as the Department of the Environment's Indigenous Consultative Committee.

We have made sure that we have worked hard to get broad support for this. To do so to other species would necessitate further public consultation, and that is why we do not believe that the amendments proposed by Senator Waters at this time are appropriate. We do believe that what is on the table will provide and boost a strong deterrent for the poaching or harming of turtles and dugongs. In relation to compliance, I would at least highlight the government's $2 million commitment to the Specialised Indigenous Ranger program which will improve traditional management and compliance. We will be launching it shortly as a program that sits alongside the work of the Australian Crime Commission in investigating penalties and ensuring that we have appropriate activities in place to stop the illegal harvesting of turtles or dugongs.

Finally, in relation to the points that Senator Waters made about the dredge disposal ban, I can tell her that drafting of that legislation is occurring at present, that its completion is expected very soon and that consultation on that draft legislation is imminent. This will be a step that the previous government certainly did not take and will enshrine in Australian law a dredge disposal ban in relation to those activities around the Great Barrier Reef.

The TEMPORARY CHAIRMAN ( Senator Dastyari ): The question is that the amendments moved by Senator Waters be agreed to.

Senator WATERS (Queensland) (13:41): I take the opportunity to indicate to the chamber that I will not be seeking to move amendment (20) on sheet 7473; nor I will be seeking to move amendments (1), (3) and (4) on sheet 7442 revised.

Senator XENOPHON (South Australia) (13:41): I move amendments (1) and (2) on sheet 7458 together:

(1) Clause 2, page 1 (lines 18 to 20), omit the clause, substitute:

2 Commencement

   (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:    This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

   (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

(2) Page 14 (after line 23), at the end of the Bill, add:

Schedule 3—Hydraulic fracturing

Environment Protection and Biodiversity Conservation Act 1999

1 Subdivision FB of Division 1 of Part 3 (heading)

   After "coal seam gas development", insert ", hydraulic fracturing development".

2 After subparagraphs 24D(1)(a)(i), (2)(a)(i) and (3)(a)(i) and 24E(1)(a)(i), (2)(a)(i) and (3)(a)(i)

   Insert:

      (ia) hydraulic fracturing development; or

3 Subsection 130(4A)

   After "Coal Seam Gas", insert ", Hydraulic Fracturing".

4 Section 131AB (heading)

   After "Coal Seam Gas", insert ", Hydraulic Fracturing".

5 After subparagraph 131AB(1)(a)(i)

   Insert:

      (ia) hydraulic fracturing development; or

6 Subsection 131AB(2)

   After "Coal Seam Gas", insert ", Hydraulic Fracturing".

7 Paragraph 136(2)(fa)

   After "Coal Seam Gas", insert ", Hydraulic Fracturing".

8 Subparagraph 304(1)(a)(viia)

   After "coal seam gas development", insert ", hydraulic fracturing development".

9 Paragraph 305(1)(ga)

   After "coal seam gas development", insert ", hydraulic fracturing development".

10 Subparagraphs 305(1A)(b)(via) and (c)(viia)

   After "coal seam gas development", insert ", hydraulic fracturing development".

11 Paragraph 305(2)(ea)

   After "coal seam gas development", insert ", hydraulic fracturing development".

12 Subparagraphs 306(1)(a)(viia) and (b)(viia) and (2)(a)(viia) and (b)(viia)

   After "coal seam gas development", insert ", hydraulic fracturing development".

13 Division 2B of Part 19 (heading)

   After "Coal Seam Gas", insert ", Hydraulic Fracturing".

14 Subsection 505C(1)

   After "Coal Seam Gas", insert ", Hydraulic Fracturing".

15 Paragraphs 505D(1)(a) and (b)

   After "coal seam gas developments", insert ", hydraulic fracturing developments".

16 Subparagraph 505D(1)(c)(i)

   After "coal seam gas development", insert ", hydraulic fracturing development".

17 Subparagraphs 505D(1)(d)(i) and (ii)

   After "coal seam gas developments", insert ", hydraulic fracturing developments".

18 Paragraph 505D(1)(e)

   After "coal seam gas developments", insert ", hydraulic fracturing developments".

19 Paragraphs 505D(1)(f) and (g)

   After "coal seam gas development", insert ", hydraulic fracturing development".

20 Paragraph 506(d)

   After "Coal Seam Gas", insert ", Hydraulic Fracturing".

21 Section 528 (definition of " bioregional assessment " )

   After "coal seam gas development", insert ", hydraulic fracturing development".

22 Section 528

   Insert:

   hydraulic fracturing development means any activity involving hydraulic fracturing that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):

   (a) in its own right; or

   (b) when considered with other developments, whether past, present or reasonably foreseeable developments.

23 Section 528 (definition of Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development )

   Repeal the definition.

I indicated in broad terms what this amendment was about in my brief second reading contribution. Effectively, it is to ensure that the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development, passed by the previous parliament, and the associated advice and reporting requirements also apply to hydraulic fracking. These are views expressed to me by my South Australian constituents from the Limestone Coast Protection Alliance committee, including people such as Dr Catherine Pye, who is a medical doctor; Dr Clive Carlyle, who is an adviser and a member of the committee; Dennis Vice, who is a winegrower from the Coonawarra; and Tony Beck, from the committee as well, who is a farmer involved in livestock and who has been involved in Landcare for many years. These are people who have a genuine concern about the impact of hydraulic fracking.

It is important that what I see as an anomaly, as an undue restriction in the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development, be extended to hydraulic fracking, because the impact on a watertable and the impact on prime agricultural land could very well be the same. This is not 'stop development'; this is not 'stop fracking'. But it provides for the rigour and for independent scientific advice to be applied and exercised in such cases. Not to do so, I think, would be anomalous in the context of what the CSG legislation—for want of a better word, that independent committee—was about.

If this particular amendment is not passed—and I would be grateful, in order to avoid a division, to hear the views of the government and the opposition in respect of this—the issue will not go away. If you damage a watertable, and if there is not adequate benchmarking and adequate assessment and scientific evaluation, the potential impact on prime agricultural land can be very significant. So I would like to get an indication from the government and the opposition of whether they support this, and, if not, whether they would support a robust Senate inquiry into this issue as to whether the independent scientific panel should look hydraulic fracking.

I am very grateful for the support of the Australian Greens. Senator Waters has had a pre-eminent leadership role on this issue of fracking and its impact on prime agricultural land. I am very grateful for her leadership on this.

Senator WATERS (Queensland) (13:45): I will just make a very brief contribution to indicate that the Australian Greens will be supporting the amendments moved by Senator Xenophon. Significant impacts on a water resource from coal seam gas or large coalmining currently trigger the need for federal environmental approval. The effect of this amendment would be to expand the water trigger such that any hydraulic fracturing activity which was going to have a significant impact on a water resource would also require the environment minister to consider whether an approval was required under the EPBC Act. In plain English, this amendment would ensure that any shale fracking meets federal approval if it is going to damage a groundwater or a surface water system.

I am really pleased to have Senator Xenophon's support on this issue. We Greens have been raising concerns about unconventional gas, including shale gas and coal seam gas, for as long as I have been in this parliament. We have moved countless bills which have sadly not received support from any of the big parties. I am grateful for the support of the Independents and the small parties on this issue. I can assure the government and the opposition, if I may speak for the crossbench on this issue, that we will not give up on protecting farmland, the climate and our groundwater given that those things are absolutely crucial in this driest inhabited continent on the planet. Food security is only going to become a bigger issue as climate change rolls out. So I indicate our support for these amendments.

Senator BIRMINGHAM (South Australia—Assistant Minister for Education and Training) (13:46): Just briefly, the government does not support the proposed amendments from Senator Xenophon. Firstly, I would highlight that these amendments are bringing a whole different aspect of environmental regulation and legislation before the Senate than what is at the heart of this bill, which is the protection of turtles and dugongs.

More generally, I would acknowledge that this amendment would broaden the scope of the water trigger, as Senator Xenophon and Senator Waters have acknowledged. However, the National Partnership Agreement on Coal Seam Gas and Large Coalmining Development was reached and agreed between the Commonwealth, Queensland, New South Wales, Victoria and South Australia in March 2012. It is an agreement that achieved support across a number of jurisdictions and sets in place a cooperative arrangement for regulation of coal seam gas and large coalmining. It was notably limited to these kinds of mining activities as part of striking that agreement.

The inclusion of the water trigger and the establishment of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coalmining Development under the EPBC Act is based upon that agreement between the states and the Commonwealth. This means the water trigger is limited to CSG and large coalmining activities, as I said before. The Commonwealth does not believe that there has been a demonstrated need—nor has there been consultation with or agreement from the states party to that agreement—to expand the legislation and the water trigger to other kinds of fracking.

Senator XENOPHON (South Australia) (13:48): I said that I would not proceed with a division if I could get some indication from the opposition as to their position on these amendments.

Senator SINGH (Tasmania) (13:48): The opposition will not be supporting these amendments.

Senator XENOPHON (South Australia) (13:48): Given that the opposition in government set up an independent expert panel, which I think was a very good move—and I note that people now on the government side such as Senator Heffernan had a very important role in that—can the opposition indicate why it would not support this amendment, because I think the principles are effectively the same. Hydraulic fracking can have an impact on the water table and can have an impact on prime agricultural land. My supplementary question is whether the opposition would at least be inclined to support an inquiry into hydraulic fracking so that the concerns of the Limestone Coast Protection Alliance in South Australia and of many other communities around the country can be heeded.

Senator SINGH (Tasmania) (13:49): Labor recognises the contribution of natural gas from coal, shale and tight formations to the Australian economy and the importance of robust environmental regulation to ensure that these resources are extracted and exported in a sustainable way. But Labor does not support the amendments of Senator Xenophon to include all hydraulic fracturing in this field. That is because in 2012 the then Labor government signed the National Partnership Agreement on Coal Seam Gas and Large Coalmining Development with Queensland, New South Wales, South Australia and Victoria.

Following that, Labor established the Independent Expert Scientific Committee on Coal Seam Gas and Large Coalmining Development to provide scientific advice to decision makers on the impact that these developments may have on Australia's water resources. That initiative was supported with $150 million of Commonwealth funding. The IESC advice and the water trigger amendment to the EPBC Act were in in keeping with the scope of that national partnership agreement. We did this to establish best practice in regulation of sensitive fracking activities and fracking activities that were near water resources, such as aquifers, which are much closer to the surface than many forms of shale and tight gas that require fracking. While Labor do not support these amendments, we do believe that there is room to review the existing national partnership agreement in partnership with the states to consider other tight gas developments.

Senator WANG (Western Australia—Palmer United Party Whip in the Senate) (13:51): I visited the Liverpool Plains last week in the company of the former member for New England, Mr Tony Windsor. As everyone in this chamber probably knows, when he was in the parliament Mr Tony Windsor played a very crucial role in making sure the water trigger was built into the EPBC Act. I think, when it comes to water resources, we have to be really, really careful. We cannot really hand it over to a state, because underground water flows. The Queensland government, for example, may approve a project which may or may not have an impact on underground water, but, when the water flows to New South Wales, it could be a different issue. If the water is actually contaminated, some of the farmers will cop it in New South Wales. So I think a federal level approval is a crucial safeguard to make sure that our precious water resources are well looked after.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendment; report adopted.

Senator BIRMINGHAM (South Australia—Assistant Minister for Education and Training) (13:54): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator RHIANNON (New South Wales) (13:55): I am continuing my speech on the Fair Work (Registered Organisations) Amendment Bill 2014. Yesterday, when I began my speech, I detailed General Abetz's military style operation with attacks on three fronts and how this would be welcome news for the coalition's constituency, the big end of town. The loss of Work Choices and the ABCC would still cause the coalition pain. The coalition know it would still cause the big end of town pain and they know their coalition government has a lot of ground to make up.

Let us remember a bit about the ABCC. It was one of the most biased of the so-called independent agencies any Australian government has ever established. We knew it was bad under the Howard government, but the Abbott government wants it to be even more extreme. During the reign of the previous ABCC, deaths of construction workers increased. Now the current government wants the new ABCC to have wider powers and for there to be reduced union representation and fewer safety measures on the job. Under Abbott's ABCC, a union could be fined more for stopping over a workplace death than an employer would be if they—

Senator Ronaldson: Mr Acting Deputy President, I rise on a point of order. That was the second time in a minute. First there was a reference to Minister Abetz, and now to the Prime Minister. The senator should know what the protocols of this place are. I ask that she observe them.

The ACTING DEPUTY PRESIDENT ( Senator Dastyari ): Senator Rhiannon, I remind you of the protocols of this place, to address people by their proper titles and to speak through the chair.

Senator RHIANNON: Under the current government's ABCC, a union could be fined more for stopping over a workplace death than an employer would be if they were ever convicted. It is interesting that it was at that point that the interjection came. So a unionist could be jailed but not the employer—and the Prime Minister tells us that he leads a good government and Senator Abetz makes out that he cares for people.

Interrogations under the ABCC would be conducted in secret. If you are interrogated, you cannot tell anyone about it, not even your partner or family, your fellow workers or your union representatives. If you will not attend the interrogation, you can be jailed for six months. There is nothing equal, in any aspect of the industrial relations work of this government, between unions and corporations.

Senator Abetz, in prosecuting his war, adopts his take-no-prisoners approach, even to the natural allies of the conservatives: many businesses. It was in January last year that the senator let fly in his Sydney Institute address, complaining about what he called 'weak-kneed employers' caving in to unreasonable union demands. Talk about arrogant and revealing!—arrogant as here is a senior Abbott government minister telling companies he knows their business better than they do with regard to what should be paid to their workers; and revealing as the minister highlights the government's intent to drive down wages and conditions that workers have a right to. What Minister Abetz and so many of his conservative colleagues cannot handle is that many employers recognise that their workforce has the right to join a union and that this is part of running a productive business.

MATES in Construction, now a nationwide organisation backed by the CFMEU and some key construction companies, is a suicide prevention program aimed at the Australian construction industry. A report on suicide in the Queensland commercial construction industry found that suicide rates in the industry were higher than the Australian average for men; alarmingly, youth suicide rates within the industry could be nearly 2.4 times higher compared with other young Australian men. In Western Australia, Multiplex, Mirvac and John Holland projects are at MATES accredited sites. That is a positive program—again, the sort of thing that Senator Abetz just ignores all the time—where unions and construction companies are working together.

When I was in state parliament, MPs were invited to work with a small business, and I found it enjoyable and informative. Something similar at a federal level would be useful, where MPs and senators could join a business workforce for a day. I think Senator Abetz would learn a lot from a day at a construction site like Barangaroo.

Senator Abetz: I've been there!

Senator RHIANNON: But did you work? But, as I guess that would not be his first choice, what about a day's work at a chicken factory? This would provide an opportunity for the minister to understand the nature—

The PRESIDENT: Order! It being 2 pm, we will proceed to questions without notice.