Senator CASH (Western Australia—Minister for Jobs and Innovation) (09:31): I table a document relating to the order for the production of documents concerning funding for the Federal Circuit Court of Australia and the Family Court of Australia. As minister representing the Attorney-General, I wish to advise the Senate of the government's position in relation to Senate motion No. 733. This is an order for the production of documents requesting the tabling of the KPMG report into the funding of the federal courts and the Ernst & Young costings in response to the KPMG report. You'd be aware that I have now tabled a response in relation to this motion whereby the Attorney-General has claimed public interest immunity over these documents. That is set out in detail in the response provided by the Attorney-General.

I can advise the Senate in summary, however, that public interest immunity has been claimed on the following basis by the Attorney-General. The reports have been and will continue to be relied on in future government decision-making processes on court structure, administration and financial arrangements, and their continued utility relies on them being treated with a degree of confidentiality. Input and advice to these reports from stakeholders, especially the federal courts, was provided on the basis of assurances that information provided, including sensitive and specific staffing information, would be treated confidentially. Disclosure of the reports would be expected to limit the extent to which stakeholders, in particular the federal courts, would engage fully future reports of this kind even if given assurances of confidentiality over information provided. This would result in future reports not being fully informed by full and frank advice and the government would not receive the most comprehensive advice from its portfolio departments and agencies. For these reasons, the Attorney-General has claimed public interest immunity over the documents requested and I refer honourable senators to the Attorney-General's correspondence to the Senate President as tabled.

Senator CAMERON (New South Wales) (09:33): I move:

That the Senate take note of the minister's response.

I must say I have never, in the time I've been here, seen a government rely on public interest immunity as much as this government and this minister, who is just leaving the chamber.

The DEPUTY PRESIDENT: Senator Cameron, I remind you not to reflect on when senators leave the chamber.

Senator CAMERON: I withdraw that.

The DEPUTY PRESIDENT: Thank you.

Senator CAMERON: That must be a new one! In relation to this position, we have a government that is, I think, clearly making a mockery of democracy and making a mockery of this chamber. They are refusing to be held accountable, and Minister Cash is a minister who has used public interest immunity more than any other minister I have seen in the decade that I've been in this place. This is a minister who, in a previous portfolio, has presided over an absolute disgrace of an administration—a minister who comes in here and is always prepared to use question time to attack union officials without any evidence, attack the trade union movement without any evidence and smear and use innuendo about ordinary Australians looking after working people day after day, doing the hard yards against the Business Council of Australia, who are trying to get tax cuts at the expense of working people. That's where this minister owes her allegiance. That's where this minister goes. This is a minister who turned a blind eye to the illegality of her former commissioner for the Australian Building and Construction Commission, Nigel Hadgkiss—a commissioner who ended up in disgrace, a commissioner who used $400,000 of public money, authorised by Minister Cash, to defend an illegality.

Senator Cash has got no credibility in this place. She has got no credibility as a minister. She has got absolutely no credibility in doing the right thing as a minister in this government. She misled the Prime Minister when she appointed Nigel Hadgkiss because she should have told the Prime Minister that Nigel Hadgkiss had breached the legislation that he was supposed to uphold. This is a minister with no credibility—absolutely none. If she were to do the right thing, she would resign from the frontbench and deal with the issues that she is facing. But all she is prepared to do, and all this government is prepared to do, is spend more and more public money to defend the indefensible. She is an absolute disgrace as a minister, and all the posturing, all the nonsense—

Senator Payne: Deputy President, can I seek your guidance as to whether there is any requirement for the senator to be relevant to the matter before the chair?

The DEPUTY PRESIDENT: In all debates there is that question of relevance. I believe that Senator Cameron is setting a wide example, and I'm sure he will come to the substance of the matter in his speech. I have been listening—he's five minutes in at this point.

Senator CAMERON: Thanks for that, Madam Deputy President. I don't think anything could be more relevant. What could be more relevant than a minister coming in here, once again, claiming public interest immunity on behalf of another minister? I think it's appropriate for me to point out that the minister who is in here representing the other minister is one of the greatest abusers of public interest immunity in this place. This is a minister who misled the Prime Minister, as I said, and re-appointed Nigel Hadgkiss when she knew that Nigel Hadgkiss had breached the law. All she had to do was look at what this public servant was doing and she would have understood that he had no case to defend the indefensible that he had participated in.

This is a minister who uses her political power to interfere in other government instrumentalities—the ABCC, the Registered Organisations Commission and the Fair Work Ombudsman. This is a minister who has got a web of advisers—former advisers, former mates, former Liberal cronies—in these so-called independent organisations to attack the trade union movement, to attack working people. This minister has misused her power as a minister. I've said it before: I watched a BBC Panorama program about the interference by Putin against his political opponents in Russia. I tell you, he could learn a lot from Minister Cash. He could learn a lot from this minister. To use your political power to misrepresent positions in this place, to use your political power to ensconce your mates in individual instrumentalities and then to use them to attack the trade union movement and working people in this country is an absolute disgrace.

The abuse of power by Minister Cash is, I think, just outrageous. This is a minister who, in my view, instigated the leak of the AFP raid. That's why she is so determined to use public interest immunity in this place. Is it feasible? It beggars belief that a senior person in Minister Cash's office tips off the media about the raid by the AFP that was instigated by Minister Cash using the Registered Organisations Commission, her creation, to attack the AWU. We know what it was all about. It was about attacking the Leader of the Opposition. It's a complete misuse of political power in this place. This minister misled parliament on five occasions. Then she had to come in and throw her staff under the bus, sacrifice her own staff, to save her own political skin. That's what this minister did. Everyone knows that that could not have happened without this minister knowing what was going on.

The DEPUTY PRESIDENT: Senator Hanson.

Senator CAMERON: This will be good.

Senator Hanson: A point of order. This has no relevance to what is before the house. This is about KPMG. I draw it back to the relevance of what's before the house.

The DEPUTY PRESIDENT: Thank you, Senator Hanson. I do remind Senator Cameron that this is about a report to be tabled today. I note that the minister has claimed public immunity, and I would just remind Senator Cameron of the need to remain with the topic.

Senator CAMERON: I believe I am right on topic. This is about an order for the production of documents that Minister Cash has been asked to produce in this place. She hasn't produced them. She has hidden behind public interest immunity. Isn't it great that the so-called defender of the working class in this country, Senator Hanson, is in there defending this minister? You may as well just join the Liberal Party. This is where Senator Hanson came from. She came from the Liberal Party. The Liberal Party knew that they had some credibility and kicked her out because of her outrageous, racist views. They kicked her out, and now we've got the Liberal Party cuddling up to her. And we'll get Senator Hanson cuddling up to the Liberal Party. It's absolutely outrageous! What an obnoxious position this member takes every day in this place.

I am right on issue in relation to this. This is about the misuse of public interest immunity. This is about not providing documents so that this parliament and this Senate can do what they are designed to do: to scrutinise the actions of ministers and the actions of government and to hold government to account. That's our job. All they do is hide behind public interest immunity and get their puppets to stand up and try to deflect when they're under pressure. Well, Senator Hanson, it's no use being a puppet in here; you actually should stand up for something other than racism and attacking people in this country. It's just absolutely outrageous.

The DEPUTY PRESIDENT: Senator Cameron, resume your seat. Senator Hanson.

Senator Hanson: I want Senator Cameron to withdraw that comment about my racism, because that is not the point in any way whatsoever, and I find that offensive.

The DEPUTY PRESIDENT: Senator Cameron, would you withdraw that remark, please.

Senator CAMERON: Yes, if it assists the Senate, I'll withdraw.

The DEPUTY PRESIDENT: Thank you, Senator Cameron.

Senator CAMERON: But everyone knows what Senator Hanson is about. Everyone knows her form. Anyone that could stoop to doing what she's done in this place really can't hide behind parliamentary procedures. That's the bottom line. We all know what she's like. You know, Senator Hanson and Senator Cash are a good pair, a really good pair. We see them—Senator Hanson standing up here to defend a minister.

The DEPUTY PRESIDENT: Senator Cameron, please resume your seat. Senator Hanson.

Senator Hanson: I call on Senator Cameron to bring it back to relevance to the issue, which is a KPMG report. That is what this is about. There's no discussion about this. I haven't heard him refer to the KPMG report. He just keeps referring to another matter to do with Senator Cash. Bring it back to what this is about.

The DEPUTY PRESIDENT: Thank you, Senator Hanson. I believe that Senator Cameron is being relevant. One of the points the minister made was public interest immunity, and that is where Senator Cameron has directed most of his remarks. Please resume, Senator Cameron.

Senator CAMERON: Thanks, Madam Deputy President. Again I repeat: I am absolutely on point about a government using public interest immunity to hide the misbehaviour of ministers. That's exactly what we're seeing here this morning. Nothing could be clearer, and nothing could be clearer about how much of a puppet Senator Hanson is to this government than her behaviour this morning—absolutely terrible.

This government has got a terrible record on funding for courts and essential services. Not only did it ignore the call in the KPMG report for an emergency injection of $5 million in funding, but the Abbott government cut $30 million in funding from the Family Court in the first year. This is a government that cut funding for the Family Court and increased funding for the ABCC. It increased funding for Nigel Hadgkiss and his cronies in the ABCC to attack working people in this country.

As I've said, Minister Cash, who is in here defending the government's position this morning, is the worst of them all in the coalition: misleading this parliament on five occasions, a ministerial office in chaos and revolving doors in her office. People are moving out of her office as soon as they come under any scrutiny. As soon as they come under any scrutiny, off they go to get a job working for the Hotels Association, assisted by the minister or by the government in Western Australia. All the links are there. We know how this mob works: if you're in trouble, throw your adviser under the bus. Off he goes to get a job with the Hotels Association, and then you try to hide from the misbehaviour that you've carried out. The web of influence that this minister has created in so-called independent organisations is a disgrace. It's a disgrace for democracy and it's a disgrace for the coalition—an absolute disgrace. Minister Cash comes in here and she attacks refugees, attacks working people and uses question time to simply make assertions that are not true. Then, when she is in trouble, she wants to hide behind public interest immunity to avoid scrutiny, failing to comply with orders to produce answers to the estimates questions. She just treats the Senate with absolute disdain.

It's not just Senator Cash that treats the Senate with disdain; the coalition treats the Senate with disdain. I'd have thought any Independent worth their salt, who wants to make sure a government is held to account, wouldn't be in here defending the government, wouldn't be in here defending Senator Cash, as Senator Hanson has done on every occasion she got the opportunity to this morning. What an absolute disgrace for One Nation to be in here trying to defend Senator Cash, trying to defend this rabble of a government. Pauline Hanson's One Nation should just actually sign up to the coalition—because you're just part of the coalition. You're just part of the coalition.

Senator Cash is a minister who has failed to deal with the fundamental part of her job, and that was to make sure that working people in this country were not ripped off. She just didn't ever go there. It was always an attack on the unions, using independent bodies to attack the union movement: put her mates, put her allies, put her plants into independent organisations and then use them to attack the trade union movement and use them to attack the Leader of the Opposition. That's what this was all about.

As I've said, Putin would be proud of what Minister Cash has done. I know Putin is one of Senator Hanson's heroes. She thinks he's great. Well, nobody else in the world seems to think he's great. When you're out here defending Senator Cash, I know why you're doing it—because you like what Putin is doing in Russia, and you think that this is worth defending here. What a disgrace Pauline Hanson's One Nation is. What a disgrace Pauline Hanson is.

The DEPUTY PRESIDENT: Senator Cameron, I remind you to refer to senators by their correct title.

Senator CAMERON: I thought I did. I said 'Pauline Hanson's One Nation'. Isn't that the name of the party?

The DEPUTY PRESIDENT: It is, and then you referenced the senator.

Senator CAMERON: I accept that.

Senator Ruston: On a point of order, following Senator Cameron's comment: he actually referred to the senator as 'a disgrace'. I think he probably should withdraw.

Senator CAMERON: I certainly think the defence is truth—surely?

The DEPUTY PRESIDENT: Senator Ruston?

Senator Ruston: I would draw the chair's attention to the last comment by Senator Cameron. I asked if you would ask Senator Cameron to withdraw—

The DEPUTY PRESIDENT: Thank you, Senator Ruston.

Senator Ruston: and he has just continued to be rude.

The DEPUTY PRESIDENT: Senator Cameron, it's not appropriate to reflect personally on a senator. I'd just ask you to withdraw.

Senator CAMERON: If it assists the chair, I withdraw.

The DEPUTY PRESIDENT: Thank you, Senator Cameron.

Senator CAMERON: This is a minister, in Minister Cash, who failed to act on employers ripping off workers. We have Senator Hanson in here defending a minister who fails to defend workers getting ripped off. What is this about? We know what it's about. Senator Hanson is nothing more than a right-wing Liberal. That's what she is. She's a right-wing Liberal. I don't often say this, but at least John Howard had the courage and conviction to throw her out of the party for her disgraceful conduct. Now we've got other former prime ministers like Tony Abbott cuddling up to her. What a disgrace this party is. The coalition have just lost the plot—absolutely lost the plot.

Minister Cash comes in here and defends wage theft, does nothing about workers getting their superannuation ripped off and does nothing about apprentices getting ripped off. There have been two reports from the Fair Work Ombudsman about apprentices getting ripped off—not a word said.

Yet what we get from Senator Hanson is a dirty deal with the coalition to give massive wage cuts to the Business Council of Australia in return for a thousand apprentices. I've never heard Senator Hanson mention apprentices in this place since she's been here. I've never heard Senator Hanson or any One Nation member come to an estimates committee and ask about the welfare of apprentices. They've never cared about apprentices, yet, when it suits them, they'll do a dirty deal with the government to try and cover up their capitulation to the government, to hand over $65 billion to big business.

Coming back to Senator Cash: Senator Cash should have a good look at herself. She is a minister who has misled this place on five occasions, thrown her staff under the bus to protect her own position and refused to deal with the issues for working people in this country when she was the minister for industrial relations. She has refused to act honourably in her position in this place. She is an absolute disgrace. She should resign. She should talk to the Federal Police, tell the Federal Police exactly what happened and save the Federal Police the investigation that they are undertaking, save the public money and do the right thing. Senator Cash should resign. She can hide behind public interest immunity all she likes, but she will be found out, because her position is untenable. She is a disgrace of a minister. She has misled this place at least five times. She should just fess up. (Time expired)

Senator WATT (Queensland) (09:56): I also rise to take note of Senator Cash's statement to this chamber this morning. We had, yet again, an occurrence of Senator Cash using either the chamber of the Senate or its committees to refuse to answer legitimate questions about her behaviour and the behaviour of her ministerial colleagues. This time around, it's in relation to an order to produce documents that was passed by the Senate last week.

I acknowledge that it was on the motion of crossbench senators, Senators Griff, Hanson and Hinch. It's actually the first time that I have noticed that Senator Hanson was one of the co-signatories to this motion, so I'm a little surprised that she is one of the people running interference to protect her Liberal mate Senator Cash this morning. I would have thought that, if Senator Hanson were so interested to get these documents—which I'll go into in a moment—she would actually want to see it through and would want to put some pressure on the government to produce the documents that she sought. But of course that would involve going against her Liberal mates, and in particular her best mate, Senator Cash, so she has backed down on her own request to produce documents.

I suppose that we're not really that surprised to see Senator Hanson backing down when it comes to taking on the Liberals. It's always a lot easier for her to just vote with them, as she does—it's got to be more than 85 per cent of the time. Are you keeping a running total, Senator Hanson? It's got to be getting towards 90 per cent now.

The DEPUTY PRESIDENT: Senator Watt, address your comments to the Chair.

Senator WATT: I'm sorry to see you go, Senator Hanson. It's always a pleasure to have—

The DEPUTY PRESIDENT: Senator Watt, again, don't reflect on a senator leaving the chamber.

Senator WATT: Okay. The subject matter of this particular notice to produce concerns something that Senator Hanson has been very vocal about, along with a number of other senators, and that is the funding crisis that we see in the family courts in Australia and the backlog in family law cases that that funding crisis is producing.

While Labor did not move this motion seeking the production of documents—so no accusation can be made that this is some sort of partisan exercise from the opposition; it was moved by a number of crossbench senators—we share the concerns of a number of crossbench senators about the funding crisis that is enveloping the family courts and the backlogs that that funding crisis is causing for many Australians who want to see their family law disputes resolved. This order to produce simply sought the production of documents that the government has in its possession.

Not long after they were elected, under the then Prime Minister, Mr Abbott, the government commissioned a review into the funding of the federal courts and the family courts. They are sitting on a March 2014 report from KPMG, a report into the funding of federal courts, and they're also sitting on some costings that were prepared by Ernst & Young in response to that report from KPMG.

The motion that was moved last week and passed by the Senate was an entirely reasonable motion that sought to get access to these documents so that the Senate can better understand the rationale behind this government's continued refusal to properly fund the family courts. I think we can understand why the government is so keen to keep these reports secret, because, under this government, the Federal Circuit Court, which handles many family law matters, and also the Family Court have been driven to crisis. This government has now been sitting on this report for four years. You would really think that it would want to get that report out there in the public domain to help explain its own decisions about funding the family courts, but instead, four years later, we are still trying to obtain access to this report.

Why is the government sitting on this report four years on? It's pretty obvious that it's because it must reveal that there is a $75 million shortfall in court funding which this government has refused to fix. Fortunately, we are now rid of the former Attorney-General, the man who I think we're now to refer to as Mr Brandis. Fortunately, we're now rid of him.

Senator Payne: Or His Excellency.

Senator WATT: I know that Senator Payne and a number of other government senators want us to refer to him as His Excellency. I know you weren't there, but during estimates we had some interchange with bureaucrats from the Attorney-General's Department and we settled on 'Mr Brandis'—at least, that that's what I would say.

Senator Payne interjecting—

Senator WATT: It probably is my most courteous description of former senator, His Excellency, His Worship, His Grace, Mr Brandis. And I say hello to Mr Brandis out there if he's watching us on TV, as I'm sure that he is. Fortunately, we are rid of Mr Brandis from this chamber, the man who deprived the family courts of fair funding, the funding that was required by Australians to have their family disputes settled. I would have thought that now is an opportune time for the government to finally come forward and table these reports that they continue to sit on. But, no, the secrecy goes on.

Under this government, employees of the Family Court—it's not just about providing funding to employ more judges and to employ more registrars to keep up with the delays and get through the backlog of cases—continue to be deprived of a fair pay rise. Employees in the Family Court have not had a pay rise for four years. How is that fair? But I suppose we can't be surprised that this government is depriving its own workforce of pay rises when we know that the policies that it has for all workers in Australia are to keep wages low while it provides big company tax cuts to its mates at the big end of town. Judicial positions have been left vacant for a number of months, and this, as I say, has been contributing to case backlogs. Families who are going through extremely difficult circumstances through relationship breakdowns are kept waiting years to get a hearing.

There is no question that this government should properly fund the family courts. It should put the resources that are required into the courts to make sure that families going through relationship breakdowns are able to resolve their disputes, whether they be about property, contact with children or any other matters. But this government refuses to provide that funding, and now it refuses to provide a report that it received four years ago that presumably recommends an increase to funding to fix these problems.

I recently participated in a Senate inquiry which clearly was only required as a result of this government's funding shortfalls. Because of the fact that everyone knows the Family Court is overloaded and people are having to wait far too long to have their matters heard, the government has commissioned a review of the family law system, something that Labor supports, but, in the meantime, before the review has been handed down, the government has come up with the notion of parenting management hearings as a way of trying to cut through this backlog. These parenting management hearings are the subject of some legislation that is currently before the Senate and that a Senate committee has recently, just this week, handed down a report on.

I'm very pleased that Labor senators lodged a dissenting report in that inquiry, because we don't believe that the parenting management hearings are the way that family disputes should be dealt with, especially while a much broader review of the family law system is being undertaken. The only reason the government have put forward the parenting management hearings as an alternative to the Family Court is that they're not prepared to put the money into the Family Court to properly resolve disputes.

One of the key problems with parenting management hearings, in the view of Labor senators, is that litigants and family members going through breakdowns are not able to be represented by legal representatives and there is a very clear problem if you have a relationship where there's a power imbalance. Typically, it would be a woman in a less powerful situation than her former partner or spouse. Very often, matters that go before the Family Court involve, unfortunately, circumstances of domestic violence. Labor believes that it is important that people in those situations have access to legal representation to ensure that their position can be fairly and adequately put. Unfortunately, these parenting management hearings do not provide for legal representation. They're basically a way of trying to resolve family disputes on the cheap. The better way to go would be for the government to provide the funding that is required to make sure that the Family Court can get through its backlog of cases rather than having to create a new structure, while it's in the middle of a review, to try to overcome the backlog it has created.

I was interested that, during Senator Cameron's speech in this debate, we saw Senator Hanson repeatedly jump to the defence of Senator Cash. It was notable that—with the exception of Senator Payne, who, I think, once jumped up during Senator Cameron's contribution—no other government senator jumped to Senator Cash's defence, but the person she could rely on over and over again in that speech was Senator Hanson. As we know, Senator Hanson has now got a very long-term deal underway with the government, the Liberals, her own former party. But I was very surprised, as I say, that it was Senator Hanson who kept jumping up, because not only was she one of the signatories to this motion requiring Senator Cash to produce these documents—and, as I say, you would have thought she would have had an interest in actually receiving them—but one of the issues Senator Hanson has been quite vocal on since she was elected is problems with the Family Court that stem from underfunding. So I would have thought that, quite apart from the fact that Senator Hanson was one of the co-signatories to this motion, if she were actually serious about wanting to fix the problems of underfunding in the Family Court, as she says she is, she would actually want to get some answers from Senator Cash. But no.

We know—whether it be on this issue, on penalty rates, on cuts to pensions or on company tax cuts—that what Senator Hanson says when she's outside this chamber and out touring regional Queensland or anywhere else that she goes is very different to what she actually does when she comes to Canberra and votes in the chamber. On penalty rates, she has twice voted with the government to support penalty rate cuts going through and hurting poorer workers in our community. She has repeatedly voted with the government to cut pensions, she has repeatedly voted with the government to cut apprenticeships, and she has even voted with the government to make it easier for construction companies to bring in temporary overseas workers, something that she says that she's against. This is just another example today of something we repeatedly see from Senator Hanson, where she says that she's in favour of one thing when she's out there courting votes, particularly in regional Queensland, but every single time she comes into this chamber she not only votes with her former party, the Liberal Party, but stands up and tries to protect Senator Cash from facing legitimate questions about Senator Cash's own behaviour.

One of these days Senator Hanson is going to realise that she's been caught out. It's one of the reasons that she wasn't successful in the Queensland election and managed only one seat when she and James Ashby were out there claiming at one point that they were going to hold the balance of power, and then they were going to hold 12 seats and then they were going to hold 10 seats. It actually ended up being one, and that's because people in regional Queensland have worked out that Senator Hanson doesn't tell the truth and doesn't back up her words with her actions when she comes down to Canberra.

Having dealt with the Family Court matters that are the subject of this motion, I want to turn to what we are seeing in Senator Cash refusing to comply with this order. It is a continuation of a pattern of behaviour, in particular from Senator Cash but also from other ministers in this government. As Senator Cameron said this morning—Senator Cameron has been here a lot longer than me—he can't remember seeing a government that has so frequently used claims of public interest immunity in order to avoid answering questions and producing documents that are the legitimate subject of questions from this chamber.

Senator Cash is the prime culprit when it comes to this. We all know, and I think everyone in Australia knows, that Senator Cash is in a huge amount of trouble over her office's involvement, potentially her involvement and potentially other ministers' involvement in the scandal around the police raid on union offices that occurred late last year. We know that that is still the subject of an investigation by the Federal Police. What we saw—and what we continue to see—from Senator Cash about that police raid was her continued use of public interest immunity and other mechanisms to avoid answering any questions about her involvement, her office's involvement or the involvement of other ministerial offices in that scandal. It's not going to work. We know that the truth is going to come out, and already the truth is starting to leak out. I have no doubt that, at the end of that police investigation, we will have the full truth, so all that Senator Cash is doing in refusing to answer questions is delaying the inevitable and, frankly, pushing that scandal closer to an election, whenever that might be. I would've thought the government would have wanted to get this as far away from an election as possible, but, in fact, by delaying, all they're doing is making sure that it remains fresh in people's minds, whenever that election might be.

What we saw from Senator Cash during Senate estimates in October last year, when this scandal first broke, was that she used public interest immunity in order to avoid answering questions of senators at Senate estimates. Very conveniently, as soon as the scandal broke, she organised for her friends at the Registered Organisations Commission who had launched this raid to write to the Federal Police and essentially ask whether it was going to be okay to answer questions now that a police investigation was underway, and, dutifully—I'm not impugning the Federal Police—as expected, the Federal Police wrote back and said that these matters would not be the subject of comment by the Federal Police. Of course, Senator Cash and the man now known as Mr Brandis got together and worked out that the best way to avoid these questions was for Senator Cash to say that a police investigation was underway and that she was now not able to comment on the police investigation or any matters connected to it.

Anyone who bothered to read the email that the Federal Police supplied in response to the Registered Organisations Commission and in response to the Senate estimates committee would have noted that what the Federal Police were saying was that they couldn't comment on the investigation. There was nothing in there that said that Senator Cash and other ministers couldn't comment on it. But, of course, we had the man now known as Mr Brandis doing his usual tricks of interpreting words in ways that suit his ends. I'm a lawyer; I've seen people do that, and Mr Brandis, to give him credit, is an expert at exaggerating words to suit his own legal arguments. What they came up with was that Senator Cash was now not able to answer questions about the matters that were under investigation by the Federal Police.

I was shocked to see Senator Cash turn to this as a way of avoiding questions, because what it basically said was that she thought it was better to be under investigation from the Federal Police than it was to answer questions in a Senate estimates committee. I would have thought that any minister would want to be transparent in answering questions, if they had nothing to hide. The last thing you want to do in politics is say that you're under investigation by the police, but Senator Cash chose to argue that she and her office were under investigation by the Federal Police and that that meant that they couldn't answer questions. What a way to look guilty! If you want to look guilty in the eyes of the public, say that you're under investigation by the Federal Police. That's the route Senator Cash chose and continues to take to this day.

We tried to ask questions about it again in estimates recently, at the end of February, and, again, the response was, 'We'd love to tell you what went on there, but the police are still investigating us.' If Senator Cash wants to keep going down the route of arguing to the Australian public that she can't talk about something because the police are investigating her, let her go ahead. Our case is basically proven.

One of the issues that we're still trying to get to the bottom of is other ministerial offices and their involvement in the scandal. We've had the very interesting and Brandisesque, if I might call them that, answers from the now Minister for Human Services, Mr Keenan. Mr Keenan was the Minister for Justice at the time of this raid. He was the minister overseeing the Federal Police. He has been very careful in the answers that he has given in the House of Representatives to questions about the involvement of his office in this. What he has said up until now is that no member of his office was involved in the leak of the information. What he means by that is that no current member of his office was involved in that. Everyone knows that, just like Senator Cash, Minister Keenan has had resignations from his office—people who no longer even work in the government—and he has been very careful to say that no former member of his office was involved in that leak. It won't take us long to work out—there has already been reporting on this—that it was not only Minister Cash's office who were involved in this leak but also Minister Keenan's office, and maybe other ministers' offices as well.

As long as Senator Cash and other ministers claim to use public interest immunity as a way of avoiding questions about their involvement in this scandal, these questions won't stop. We will keep asking them and we will get to the bottom of it. Minister Cash might decide to use the fact that she and her office are under police investigation as a way of avoiding answering these questions, but it won't work. There is going to come a time when that police investigation is concluded. I have no doubt that it is going to find that this scandal went a lot further than just one member of Senator Cash's office. It is going to find, without doubt, that other ministers' offices were involved and that questions about Senator Cash's own involvement will continue. Senator Cash should stop using public interest immunity to avoid answering questions about the Family Court or her office's involvement in this scandal.

Senator GRIFF (South Australia) (10:16): How can it be that the entirety of these documents is damaging to the public interest? The Australian already has a copy of the KPMG report. Excerpts and summaries of the report have been published in the paper. Consequently, they are already in the public domain, and the government's ability to support the court does not appear to have been undermined by that publication. The minister representing the Attorney-General's response shows a complete disregard for families navigating their way through the family law system—a system that, in the words of the former Chief Justice of the Family Court, Diana Bryant, is 'letting the people down'. The former Chief Justice went on to say:

The whole system suffers from a lack of resources to get through the work in a satisfactory way.

Those statements were made in 2017, and now, in 2018, very little, if anything, has changed. Only last week, in a ceremonial listing for senior Family Court Judge, Justice Thackray, His Honour said:

… I've been burning to say these things for years.

His final address to the profession was a searing indictment of this government's continued failure to provide the court with the funding it needs to do its job properly. His Honour called out the government for taking years to replace retiring judges and added his voice to the deafening chorus of calls for an urgent injection of funds to deal with the growing case load and inordinate delays. So we have a senior judge and the former Chief Justice publicly voicing their long-held and very real concerns about the parlous state of the Family Court's funding. How is it then that this government can continue to ignore the repeated calls for funding? How is it that this government thinks that all will be fixed with piecemeal and tokenistic gestures?

Let's take the extra funding allocated to the court for registrars announced in the 2017 budget: three registrars across three courts and seven states and territory—only three registrars for all three courts. That hasn't even scratched the surface. In the words of former Chief Justice Diana Bryant, matters continue to:

… just sit in the list. That's appalling.

Those are not my words. Those are the words of the former and highly respected Chief Justice of the Family Court, who, in October 2017, called the delays 'appalling'. Barely six months ago, the then Chief Justice of the Family Court was pleading for more funding for a system that is overworked and underresourced—but I don't want to reduce this debate to balance sheets and budgets.

Let's just pause here for a moment and actually think about what is at stake. Let's think about the children and the parents who spend years having their most intimate details laid bare for social scientists, lawyers and judges to dissect and determine. We're not talking about large multinationals crossing swords over abstract contractual principles. These are desperate families dealing with a breakdown in the family unit and all the emotional, financial and logistical complications that flow from that. Delays in the system due to the lack of sufficient resources can only serve to further inflame the conflict.

Family law disputes are necessarily the consequence of failed hopes, dreams and plans for a shared life. The legal profession and the judiciary, including the former Chief Justice, have all identified the government's failure to replace judges quickly—or, indeed, at all—as a significant factor in the current delays. Let's take Adelaide, my home capital city, as an example. Following the retirement of Justice Dawe, South Australian families have been waiting for over 12 months for a replacement judge. So there is now only one judge available to decide the state's most complex matters—one judge.

Last week, the Attorney-General confirmed that there was a full complement of judges in the court for the first time in years. How do you then explain to the people of South Australia what one judge will actually do when there used to be two? How do you explain to the people of South Australia that they will have to wait twice as long to get before a judge? Or does the government simply expect the one remaining judge in Adelaide to work twice as hard? Remember, these are complex cases often involving intractable parenting disputes, including allegations of serious physical, sexual and psychological harm or complex property settlements where mum is barely scraping by on welfare payments and child support while she waits for the property settlement to be determined by the next available judge.

The government needs to acknowledge the failure to replace judges quickly and that the continued failure to replace Justice Dawe has had a snowball effect on separating families. I know this because I've heard too many stories of South Australian families suffering financially and emotionally while they wait and wait and wait on the list. It is not uncommon for matters to spend two years on the Federal Circuit Court waiting for their trial only to be kicked upstairs to the Family Court where they must start once more at the bottom of a very long queue. This is occurring because of the limitations of the FCC and the complexity of certain matters. With only one judge now sitting in the Family Court in Adelaide, matters are taking well over three years to determine.

We know from the various state and territory law societies and the Law Council of Australia that these stories are not unique to Adelaide. For example, in the Sydney and Parramatta courts, families can wait over three years to get to the final hearing. And what is so frustrating is that we absolutely know that this is not a new problem because, unlike the Senate, TheAustralian actually managed to get a copy of the 2014 KPMG report. What was reported paints a sobering picture of the nation's three federal courts. In an article published on 29 August 2014, The Australian reported an expected $75 million budget as a consequence of the court's structures and complex and increasing caseload. The article said:

The 127-page report, which was handed to the government in March, reveals court costs are rising faster than the money set aside to pay for them, and not enough potential savings remain to cover the shortfall.

"The current challenge now lies in that the pool of potential 'efficiencies' has already been tapped and that it does not appear possible to continue to produce them at the same pace ... without a significant restructure or decline in service levels …

That report was completed four years ago, and there is no indication that the service levels have improved in the meantime. Remember, this is not a customer satisfaction survey for a retail chain. The court is providing a service to separating families. That service is to hear and determine their matter in a fair, efficient and cost-efficient manner.

Our attention then turns to the term 'restructure'. We know the government amalgamated the administrative functions of all three federal courts in order to claw back costs, but what other changes is the government planning? We know from Senate estimates that the Attorney-General has met with the courts to discuss reform. Are the proposed parenting management hearings just the first part of a broader reform that was proposed back in 2014, or is this a quick-fix idea, a last-ditch attempt by the government to salvage a broken system after years of repeatedly ignoring pleas for funding? Remember that these calls for funding are not the disgruntled murmurings of the few; sustained calls for more funding have come from the judiciary, the legal profession, legal aid centres, academics and social workers. And they are based on the limited information available to us from KPMG.

This is not the first attempt that has been made to seek a copy of the report. We heard during the recent Senate estimates that there was, at that time, an FOI request pending, and, during question time in November 2016, Senator Hanson requested a copy of the report. In response, the then Attorney-General, Senator Brandis, made two points that I'd like to highlight. The first was that the department had relied on these documents to achieve useful efficiencies, and the second was that he would consult with the secretary of his department to see what he could make available. So, here we are, 18 months later, and we must now all surely be questioning what impact, if any, the so-called useful efficiencies have had on the current logjam in the courts.

But that is the point: we simply do not know. We don't have the full picture, and the government does not want us to know. So, how can we be expected to consider the Family Law Amendment (Parenting Management Hearings) Bill in a vacuum, when the government has sold this bill to the Senate as a new justice model, promising swift and cost-effective dispute resolution for all? And it is for all, notwithstanding Senator Brandis's response to my question in December 2017: these parenting management hearings will in fact be used in cases of family violence.

The government's proposal is a significant departure from existing family court procedures. It is an untested social experiment being thrust upon unsuspecting participants that is binding on them and their children. These are people who will have to deal with the consequences for many years to come. It may be a pilot program for the government, but make no mistake: for the estimated 500 families and the 1,000 children affected, it will be permanent. It also comes at a significant cost of over $12 million—just for a pilot program.

I asked the former Attorney-General, George Brandis, about the timing of the reforms in December 2017, and yet again I find myself asking: why is the government choosing to legislate now, before the Australian Law Reform Commission has completed the long-awaited review into the family law system? If the government were serious about the review and about helping vulnerable Australians through one of the worst periods of their lives, it would wait for the recommendations of the ALRC before thrusting yet another layer of complexity on an already overburdened system, especially when we know that, as part of its terms of references, the ALRC will be looking at 'the appropriate, early and cost-effective resolution of all family law disputes' and 'the pressures, including, in particular, financial pressures, on courts exercising family law jurisdiction'. I would expect that, as part of that investigation into financial pressures facing the courts, the government will ensure that the KPMG and Ernst & Young reports are provided to the ALRC.

The government has available to it two presumably comprehensive reports which set out the financial pressures the Family Court is facing, and presumably the range of possible options that were available to the government at the time. The time has now come for the government to produce the reports: first, to the Senate, to enable a proper consideration of the merits of the parenting management hearings bill, and, second, to the ALRC, to better enable the commission to consider the financial pressures facing the family law system pursuant to its terms of reference.

Senator PATRICK (South Australia) (10:29): I've had a quick look at the minister's response to the OPD and I will express a preliminarily view. But, before I express that view, I want to make it clear that there is no constitutional impediment to this chamber making an inquiry into the administration of the courts. We must of course respect the need to steer clear of matters related to legal proceedings, but the issue of appropriate resourcing for the courts is fairly and squarely within the purview of this chamber. The letter tabled seems to make a claim that does not fit within the accepted public interest immunity claims—and I refer the Senate to pages 662 and 667 of Odgers—but it does fall within the grounds that are not accepted by the Senate, again on pages 667 and 669. I will look at this letter, consider it and come back to the chamber in due course, but I do want to state that it is for the Senate to accept or not accept a public interest immunity. If it does not accept it then it can use its powers to enforce the order. This may become a test for both the government and the Senate in this instance.

Senator McKIM (Tasmania) (10:30): Governments should be of the people and for the people; that is a fundamental democratic principle. Part of that fundamental democratic principle is respecting the right of the people to have access to information that underpins government decision making. This government uses public interest immunity claims almost reflexively to deny not only this chamber and members of the Senate but the Australian people the capacity to hold them to account and to more fully understand information on which the government's decisions are made. Nowhere is this more obvious than in the immigration portfolio around what the government describes as 'on-water matters'. The government also regularly uses public interest immunity claims to draw a veil of secrecy over the horrors of what is happening to people on Manus Island and Nauru who remain in Australia's duty of care.

We've had a quick look at the letter provided to the Senate today by Minister Cash. The Greens, on face value, do not accept the claim of public interest immunity made in that letter. It is quite clearly outside the grounds laid out in Odgers, as Senator Patrick has stated, and in fact—again, as Senator Patrick has stated—falls clearly within the grounds that ought not, under precedents set by this chamber in the past and advice from the Clerk to this chamber in the past, be accepted by this chamber. We stand ready to work with this Senate to ensure that the information that the government is continually trying to keep secret is made public, and we do that on behalf of our democracy, on behalf of the people who put us into this place with their votes and on behalf of the supremacy of the parliament over the executive government. We will work across party lines to ensure that claims like this are tested and to ensure that, where the Senate does not accept claims of public interest immunity, further action is taken on behalf of the right of the Australian people to have the capacity to more fully understand decisions the government makes.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ): Order! It being 10.33, the time for this debate has expired. The question is that the motion moved by Senator Cameron be agreed to.

Question agreed to.

Senator PATRICK (South Australia) (10:33): I am pleased to speak briefly in relation to this bill, the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018. As senators are aware, the bill follows the 2017Independent intelligence review that was commissioned by the government to examine the roles of the Office of National Assessments, the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Australian Signals Directorate, the Defence Intelligence Organisation and the Australian Geospatial-Intelligence Organisation. The review further examined the relationship and engagement between those agencies and other members of the broader national intelligence community, including the Australian Federal Police and the Department of Immigration and Border Protection.

The review made a number of recommendations, including that the Australian Signals Directorate, ASD, become a statutory authority within the Defence portfolio, that ASD's priority role of supporting the Australian Defence Force capabilities be clearly reaffirmed, that ASD's legislative mandate be amended to explicitly recognise its national responsibilities for cybersecurity, including the provision of advice to the private sector, and that ASD take formal responsibility for the Australian Cyber Security Centre.

The bill broadly serves to implement these recommendations. It will establish ASD as an independent statutory authority within the Defence portfolio, reporting directly to the Minister for Defence. ASD will continue to play a vital role in supporting both the ADF capabilities and the national intelligence collection requirements. ASD's functions will be expanded to include the Australian Cyber Security Centre and allow the ACSC to cooperate with persons and bodies listed in the Intelligence Services Act 2001 and, significantly, to advise and assist businesses and the community directly.

The bill will also enable the transfer of the Computer Emergency Response Team and its functions relating to cyber policy and security from the Attorney-General's Department to ASD. Significantly, the bill establishes new functions for the ASD, including to prevent and disrupt, by electronic or similar means, cybercrimes by people or organisations outside of Australia and to protect the specialised technologies and capabilities acquired in the performance of its other functions.

The bill has been examined by the Senate Foreign Affairs, Defence and Trade Legislation Committee, which has recommended that the bill be passed. I and my NXT colleague Senator Griff are pleased to support the bill as a necessary and desirable measure to strengthen a vital national intelligence collection agency. However, dealing as it does with amendments to the Intelligence Services Act 2001, this bill also provides an opportunity for me to foreshadow a major issue that we intend to pursue when the Senate debates further elements of the government's latest tranche of national security reforms.

I've spoken previously about the importance of a well-resourced and capable intelligence community to protect Australia's national interests and the importance of improving parliamentary oversight. As those agencies are given more resources, more power and more responsibility the mechanisms of oversight should be similarly reinforced. In a speech to the Senate last December I highlighted the need for parliamentary scrutiny of our intelligence community to extend beyond questions of administration and finance to matters of policy, effectiveness and, as necessary from time to time, operational matters.

The Parliamentary Joint Committee on Intelligence and Security is currently severely limited in the scope of its oversight role, which is largely limited to questions of administration and finance, as I've suggested. Specifically, the committee is prohibited from reviewing intelligence-gathering and assessment priorities of the Australian intelligence community. It is barred from examining sources of information, other operational assistance, operational methods or any operations that have been, are being or are proposed to be undertaken by the Australian intelligence community.

The PJCIS may not review the content of or conclusions reached in assessments or reports made by the Defence Intelligence Organisation or the Office of National Assessments, nor may it review the coordination and evaluation activities undertaken by the ONA. The committee is prohibited from reviewing particular operations or investigations that have been or are proposed to be undertaken by the Australian Federal Police. Significantly, the PJCIS is also prohibited from reviewing the privacy rules made by the minister under section 15 of the Intelligence Services Act, which are the written rules regulating the communication and retention by agencies of intelligence information concerning Australian persons.

These limitations of the extent of parliamentary oversight are very extensive and reflect an underlying bureaucratic mindset that MPs and senators, elected representatives of the people, cannot be trusted with our nation's most sensitive national security information. This is not the approach taken in other countries, including Australia's intelligence partners. In the United States, high-powered congressional committees have the authority to reach far into operational matters. Those inquiries are accepted by the US intelligence community as necessary and appropriate.

No doubt there are details of intelligence operations, especially human intelligence operations, involving sensitive and vulnerable sources that are best held by the smallest number of people with an absolute need to know. There may well be cases for a ministerial veto on the PJCIS's access to some specific operational information. As I pointed out to the Senate in December, in Canada, the new National Security and Intelligence Committee of Parliamentarians is able to review any activity carried out by a department or intelligence agency that relates to national security or intelligence unless that activity is an ongoing operation and the appropriate minister determines that the review would be injurious to national security. If the appropriate Canadian minister determines that a review would be injurious to national security, he or she must inform the committee of his or her determination and the reasons for it. If the appropriate minister determines that the review would no longer be injurious to national security, or if the appropriate minister is informed that the activity is no longer ongoing, he or she must inform the committee that the review may be conducted.

The Canadian parliamentary intelligence oversight arrangements have considerable merit. They have been adopted by a so-called Five Eyes partner with an intelligence community and parliamentary system very similar to our own. The Canadian approach could provide an enhanced framework for the PJCIS's oversight of our intelligence agencies, with the added provision that any ministerial veto over review of an operational matter should be referred to the IJIS for review and a report to both the PJCIS and the Prime Minister. If democratically elected MPs and senators cannot be trusted to deal directly with these questions, then something is wrong with the relationship between the intelligence community and the parliament that it ultimately means to serve.

The Senate will in due course debate further legislation to give effect to the government's further responses to the intelligence review's recommendations and to strengthen our laws to protect Australia against espionage and covert foreign interference. The government will be seeking the support of the opposition and the crossbenchers. That legislation should be subject to rigorous scrutiny and debate by the Senate. NXT will consider that legislation on its merits, but we will push hard for operational oversight of the intelligence services by the parliament because the time for such scrutiny is both necessary and long overdue. We will take the opportunity to press for amendments to the Intelligence Services Act to provide for an expanded PJCIS oversight of all intelligence activities including operational matters. If the government want to increase the powers and the responsibilities of our intelligence agencies, which, again, I and my colleagues broadly support, then they must be prepared to strengthen the role of the parliament in overseeing those agencies to ensure they are truly defenders of our national interest and, indeed, the Australian people.

Senator PAYNE (New South Wales—Minister for Defence) (10:43): I'd like to thank senators for their contribution to the debate and their support for the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018. I would also like to thank the Senate Foreign Affairs, Defence and Trade Legislation Committee for their consideration and recommendation in support of the bill and also acknowledge those who provided submissions to the committee expressing their support for the bill.

The Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018 implements the recommendations of the 2017 Independent Intelligence Review. That review recommended that ASD be established as an independent statutory agency within the Defence portfolio reporting directly to the Minister for Defence. This was endorsed by government. The report of the intelligence review was very clear in its views in ensuring that ASD is best structured into the future to meet its responsibilities and the requirements of government. In this context, the review noted:

… ASD will be better placed if it remains in the Defence portfolio but if it is in a position to operate with greater independence from the Department’s requirements, especially those in relation to its capacity to recruit, retain, train, develop and remunerate its specialist staff.

The review continued:

For ASD, the option of continuing to operate within the Department of Defence’s employment framework, even with some specific exemptions, is not the most effective way forward. It would increase the risk of losing additional critical talent, skills and capabilities. ASD needs to be more in control of its own destiny.

Noting those comments, it is also important that I make this point: the bill does not seek to alter the indispensable relationship that ASD has with the Department of Defence and, in particular, with the Australian Defence Force. Underpinning the closeness and the enduring nature of the relationship between ASD and the ADF—and consistent with recommendation 6(c) of the intelligence review—the agency now has for the first time a principal deputy director, who will become the principal deputy director-general with the passage of this bill, position that is filled by a three-star military officer. The creation of this position will ensure that, after 1 July 2018, ASD's primary support to the ADF continues.

The bill does not alter the primacy of ASD's foreign signals intelligence responsibilities as well as the use of its offensive cyberwar fighting capabilities and cybersecurity expertise in its critical support of military operations. Through the implementation of the recommendations of the intelligence review, ASD's functions to provide this support to military operations remain unchanged.

In relation to the employment of staff, ASD will operate outside the Public Service Act framework. This will provide ASD with greater flexibility to recognise the skills of its specialised workforce and to retain those with highly sought after skills, such as those with science, technology, engineering and maths qualifications in particular. While operating outside the Public Service Act framework, ASD will adopt the principles of the Public Service Act with regard to its employees to the extent that the Director-General of ASD considers they are consistent with the effective performance of the functions of the directorate.

I would like to briefly touch on a matter raised by the committee with regard to providing greater clarity to staff around employment conditions. I can assure the Senate and the staff of ASD that workplace agreements and staff entitlements, including mobility rights and maternity leave benefits, will not be adversely affected by the establishment of ASD as a statutory agency. In particular, the incoming Director-General of ASD will work with the Australian Public Service Commissioner to make sure that the redeployment register continues to be available to excess ASD employees. To ensure that employees will retain access to maternity leave entitlements, the government and ASD are working towards amending the regulations in the Maternity Leave (Commonwealth Employees) Act 1973, with ASD actively working towards the necessary changes occurring before it becomes an independent statutory agency on 1 July.

The bill also includes an additional function for ASD to protect the specialised technologies and capabilities acquired in the performance of its other functions. ASD can't perform its important functions without being able to protect its tools to ensure their ongoing utility, which ultimately helps to protect Australia's national interests. The bill also makes a number of transitional provisions to ensure that the good governance of ASD continues during the implementation of the new arrangements.

Importantly, the bill also strengthens the oversight and transparency arrangements for ASD. As an independent statutory agency, ASD will have new corporate reporting obligations, in particular through meeting the requirements of the Public Governance, Performance and Accountability Act 2013. In turn, ASD will have its own component of the Defence portfolio budget statements, and officers will attend Senate estimates hearings not as part of the Department of Defence but as a separate statutory entity. ASD will be required to publicly report on its performance through the release of an annual report.

The Inspector-General of Intelligence and Security is a critically important element of Australia's oversight arrangements for the intelligence community to ensure that all relevant agencies are operating legally and with propriety. Through the implementation of recommendation 22 of the Independent intelligence review, the Office of the Inspector-General of Intelligence and Security will have its resourcing significantly increased to ensure that it can continue its important work as the scale and complexity of the operations of agencies like ASD increases.

The establishment of ASD as a statutory authority puts the agency on a similar footing to the Australian Secret Intelligence Service and the Australian Security Intelligence Organisation as a national security and intelligence asset. Given the critical operational support that ASD provides to the Australian Defence Force, and its increased national responsibilities in relation to cybersecurity, ASD will now have the appropriate statutory functions to ensure it is well placed to support ADF operations as well as its responsibilities for combatting cybercrime, including the provision of advice to the private sector into the future. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ) (10:50): 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 PAYNE (New South Wales—Minister for Defence) (10:50): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator FIFIELD (Victoria—Minister for Communications, Minister for the Arts and Deputy Leader of the Government in the Senate) (10:50): I present the government’s response to the advisory report of the Parliamentary Joint Committee on Intelligence and Security on its inquiry into the Security and Critical Infrastructure Bill 2017. I seek leave to incorporate the document in Hansard.

Leave granted.

The document read as follows—

Australian Government response to the Parliamentary Joint Committee on Intelligence and Security ' s Advisory report on the Security of Critical Infrastructure Bill 2017

Recommendation 1

The Committee recommends that the Department of Home Affairs, in consultation with the Department of Defence and the Department of the Environment and Energy, review and develop measures to ensure that Australia has a continuous supply of fuel to meet its national security priorities. As part of developed measures, the Department should consider whether critical fuel assets should be subject to the Security of Critical Infrastructure Bill 2017.

The Committee considers that the Department should conclude this review within 6 months.

The Department should brief the Committee on the outcomes of the review following its conclusion.

The Government accepts this recommendation in-principle

The risk of espionage, sabotage and coercive influence in Australia's domestic liquid fuel refinement part of the supply chain has been assessed as relatively low, due to the sector's diversity and the resilience of the market system to respond to any disruption at a particular location. However, the sector is heavily reliant on imports, and critical port infrastructure. The infrastructure at ports that support imports of liquid fuel was a key factor in determining which ports are captured by the Bill. The critical ports captured by the Bill provide 92% of total liquid fuels imports.

The Department of Defence has significant operational and strategic fuel holdings compared to most commercial organisations, and has sufficient fuel to meet our current and expected commitments in the present strategic circumstances.

Notwithstanding these factors, the Government agrees that fuel supply is a critical issue. As such, the Committee's concerns, including whether liquid fuel assets should be covered by the Bill, will be considered in the next National Energy Security Assessment. This work will be led by the Department of the Environment and Energy, in close consultation with the Department of Home Affairs and the Department of Defence.

Recommendation 2

The Committee recommends that the Department of Home Affairs examine the viability of developing a common data entry portal for use across Commonwealth, state and territory databases that require information from the same reporting entities.

The Government accepts this recommendation in-principle.

The Department of Home Affairs will consider options to streamline the provision of information required for the Bill where that information is already provided by industry to government for other purposes. The Department notes legislative restrictions on how information can be obtained and shared, including across jurisdictions, may limit the extent to which data collection may be streamlined.

Australian Government response to the Parliamentary Joint Committee on Intelligence and Security's Advisory report on the Security of Critical Infrastructure Bill 2017

Recommendations 3 and 5

Recommendation 3: The Committee recommends that the Department of Home Affairs develop guidelines for entities subject to the Security of Critical Infrastructure Bill 2017. The guidelines should:

enable an entity to determine whether it is a reporting entity, and

provide the entity with an understanding of the specific information it is required to report. These guidelines should be made available prior to the end of the three-month transition period.

Recommendation 5: The Committee recommends that the Department of Home Affairs include in guidelines to be developed for entities subject to the Security of Critical Infrastructure Bill 2017, information regarding:

the high-level criteria by which the Department will assess risk, and

the process and the engagement that entities should reasonably expect from the Department as part of a risk

assessment.

The Government accepts these recommendations.

The Government is committed to developing and releasing guidance to support the implementation of the Bill to ensure stakeholders understand their obligations and responsibilities. Specifically, these guidelines will:

ensure stakeholders understand the operation, functions and processes of the Bill

enable an entity to determine whether it is the reporting entity

assist a reporting entity with registering on the Register of Critical Infrastructure Assets by providing step-by-step guidance, including detailing the specific information required to be reported

provide high-level criteria by which the Critical Infrastructure Centre will assess foreign involvement risks in critical infrastructure assets, including the process and the engagement entities should reasonably expect as part of a risk assessment, and

provide best practice guidance to assist entities to proactively safeguard their assets from national security risks.

These guidance documents will be available to stakeholders prior to the end of the three-month period before the Bill's commencement.

Recommendation 4

The Committee recommends that the Security of Critical Infrastructure Bill 2017 be amended to more appropriately define direct interest holder in order to capture the intended full range of ownership arrangements.

Further, the Explanatory Memorandum and the Bill should clarify that:

moneylenders are not direct interest holders, where they hold an interest in a critical infrastructure asset through a financing arrangement, and

intermediate and ultimate holding entities are not direct interest holders.

The Government accepts this recommendation.

The Government will move amendments to the Bill to ensure it more clearly requires a direct interest holder to report on the Register of Critical Infrastructure Assets information relating to all intermediate and other holding entities who are in a position to directly or indirectly influence and control the direct interest holder. The Government will move amendments to the Bill to explicitly

Australian Government response to the Parliamentary Joint Committee on Intelligence and Security's Advisory report on the Security of Critical Infrastructure Bill 2017

define the term 'influence or control' based on the existing guidance in the Explanatory Memorandum.

The Government will also move amendments to clause 8 in the Bill to include a limited carve-out of moneylenders as direct interest holders. The carve-out will apply where the moneylender's interest in the asset is:

held solely by way of security for the purposes of a moneylending agreement, and

the moneylender is not in a position to directly or indirectly influence or control the asset.

The exemption will not apply if the moneylender, by taking security or by enforcing that security, acquires the ability to influence or control a critical infrastructure asset.

The Government will provide further detailed guidance and examples in the Explanatory Memorandum to demonstrate how the amended provisions are intended to operate.

Recommendation 6

The Committee recommends that the Explanatory Memorandum to the Security of Critical Infrastructure Bill 2017 be amended to list the factors that the Secretary must have regard to, when deciding whether to disclose protected information under sections 42 and 43 of the Bill. Factors should include:

whether the disclosure is consistent with the objects of the Bill, and

whether the purpose of the disclosure is proportionate to the sensitivity of the information being disclosed.

The Government accepts this recommendation.

The Government will clarify in the Addendum Explanatory Memorandum that when determining whether to disclosure protected information under clause 42 and 43, the Secretary should have regard to whether the disclosure is consistent with the objects of the Bill and is proportionate to the sensitivity of the information disclosed.

Recommendation 7

The Committee recommends that the Explanatory Memorandum to the Security of Critical Infrastructure Bill 2017 be amended to clarify that the Bill does not affect the operation of existing privacy obligations.

In particular, the Explanatory Memorandum should clarify that section 39 does not affect the operation of Australian Privacy Principle 11.2 and the Department of Home Affairs, as the administering agency, would need to destroy personal information if it was no longer necessary.

The Government accepts this recommendation.

The Government will provide further clarity in the Addendum Explanatory Memorandum to specify that once the Secretary deems that information provided under clause 37 is no longer required for the purpose for which it was provided, reasonable steps will be required to be taken to destroy that information or ensure the information is de-identified. Specifically, the explanatory memorandum will be amended to state the Secretary must have consideration for the Australian Privacy Principle 11 in determining if it is appropriate to retain personal information, and, accordingly, if reasonable steps are required to be taken to destroy that information or ensure the information is de-identified.

Australian Government response to the Parliamentary Joint Committee on Intelligence and Security's Advisory report on the Security of Critical Infrastructure Bill 2017

Recommendation 8

The Committee recommends that the Security of Critical Infrastructure Bill 2017 be amended to require the relevant Minister to provide, to the subject entity, notice of an adverse security assessment given in connection to the Bill and merits review rights.

The Committee considers that the Bill should be amended to align with requirements under section 38A of the Australian Security Intelligence Organisation Act 1979.

The Government accepts this recommendation.

The Government will move amendments to the Security of Critical infrastructure (Consequential and Transitional Provisions) Bill 2017 to ensure the notification requirements in section 38A of the Australian Security Intelligence Organisation Act 1975 also apply to an adverse security assessment given in connection with clause 32(2) of the Security of Critical Infrastructure Bill. This amendment aligns the notice requirements for an adverse security assessment relating to the directions power in the Security of Critical Infrastructure Bill with similar requirements to be included in the Telecommunications Act 1997. Specifically it will require the Minister, within 14 days of receiving the adverse security assessment, to provide the assessed person with written notice of the assessment (including a copy of the assessment) and information on his or her right to apply for merits review in the Administrative Appeals Tribunal. Notice of the adverse security assessment will not be able to be withheld from the assessed person, only parts of the assessment itself may be withheld or redacted if disclosure of that part would be prejudicial to the interests of security.

Recommendation 9

The Committee recommends that the Security of Critical Infrastructure Bill 2017 be amended to require the Parliamentary Joint Committee on Intelligence and Security to review the operation, effectiveness and implications of the reforms, commencing within three years of the Bill receiving Royal Assent.

The review should consider the appropriateness of a unified scheme to cover all critical infrastructure assets, including telecommunications assets.

The review should also consider circumstances that the Minister has used the private declaration power under section 51.

The Government accepts this recommendation.

The Government will move amendments to include a review mechanism requiring the Parliamentary Joint Committee on Intelligence and Security to review the Bill, commencing within three years of the Bill receiving Royal Assent. The proposed review provision will specifically require the Committee to consider the:

operation, effectiveness and implications of the Bill

appropriateness of a unified scheme to cover all critical infrastructure assets, including telecommunications assets, and

circumstances that the Minister has used the private declaration power under section 51.

Senator FIFIELD (Victoria—Minister for Communications, Minister for the Arts and Deputy Leader of the Government in the Senate) (10:51): I table an addendum to the explanatory memorandum relating to the Security and Critical Infrastructure Bill 2017. The addendum takes account of recommendations made by the Parliamentary Joint Committee on Intelligence and Security in response to concerns raised by the Scrutiny of Bills Committee. I also table two supplementary explanatory memoranda relating to the government amendments to be moved to these bills.

Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (10:51): Whether in government or in opposition, Labor has consistently worked to ensure that our security agencies have the powers and resources they need to keep our community safe and that our laws are adapted to meet the changing security threats that we face. Consistent with its commitment to national security, Labor supports the Security of Critical Infrastructure Bill 2017 and the Security of Critical Infrastructure (Consequential and Transitional Provisions) Bill 2017.

We support these bills because we recognise the need to manage national security risks arising from the possibility of malicious foreign involvement in our critical infrastructure. Labor believe that these bills strike an appropriate balance. They impose only the necessary and relatively minor regulatory requirements needed to improve the management of the national security risks that threats to our critical infrastructure pose. The Security of Critical Infrastructure Bill provides a risk based regulatory framework to manage national security risks from foreign involvement in Australia's critical infrastructure. The bill focuses primarily on the risk of sabotage, espionage and coercion in Australia's highest risk, critical infrastructure sectors of electricity, gas, ports and water.

Labor recognises that foreign involvement in the economy, and in Australian infrastructure, plays an important and beneficial role in supporting economic growth, creating employment opportunities, improving consumer choice and promoting healthy competition while increasing Australia's competitiveness in global markets. However, with increased privatisation, outsourcing and offshoring of supply chain arrangements, and the shift in Australia's international investment profile, critical infrastructure is increasingly exposed to the risk of sabotage, espionage and coercion. This bill is an appropriate step to inhibit malicious conduct undertaken covertly which may have implications for Australian society.

Labor will always ensure that critical infrastructure assets, where they are partly owned by foreign entities, are still subject to control and direction by the Commonwealth. It is fundamental to the maintenance of the security, safety and prosperity of Australians that critical assets are required to provide relevant information to government and that, in times of emergency, they can be directed to ensure that the needs of Australian society are met. This was a sentiment shared by state and territory governments and industry and peak organisations who expressed support for the bill in submissions to the PJCIS.

The bill designates water, electricity, gas and ports above a certain threshold as critical assets. The bill defines a critical water asset under proposed section 5 as:

… a water or sewerage system or network that is used to ultimately deliver services to at least 100,000 water connections or 100,000 sewerage connections under the management of a water utility.

It is axiomatic that all Australians require a clean and reliable supply of water and that disruption to Australia's water supply or water treatment facilities could have major consequences for the health of citizens and the economy.

Similarly, the bill, in subclause 10(1)(a), establishes the test for criticality of an electricity asset as:

(a) a network, system, or interconnector, for the transmission or distribution of electricity to … service at least 100,000 customers …

Electricity generation is fundamental to the proper functioning of the economy and is a basic necessity for all Australians. It is clear that electricity assets which provide transmission and distribution services form a core part of the nation's critical infrastructure.

Clause 12 of the bill defines a critical gas asset as:

(a) a gas processing facility that has a capacity of at least 300 terajoules per day …

(b) a gas storage facility that has a maximum daily quantity of 75 terajoules per day …

(c) a network or system for the distribution of gas to ultimately service at least 100,000 customers or …

(d) a gas transmission pipeline that is critical to ensuring the security and reliability of a gas market …

It is self-evident that gas in Australia is an important energy source. It is an increasing export commodity and a required element for a wide range of industrial, commercial and residential uses. Gas is particularly important for gas-powered electricity generators, which account for 20 per cent of Australia's electricity, and manufacturing, which relies on gas for approximately 40 per cent of net energy. These are numbers that, as Australia transitions to a clean energy economy, we expect to grow. Accordingly, the protection of gas infrastructure as a critical asset will grow, not diminish, over time. By defining the level of criticality, the bill limits the regulatory burden to Australia's highest risk critical assets.

The bill will supplement the existing FIRB mechanism through which the Commonwealth can respond to risks. However, because the FIRB mechanism applies to foreign investment above certain thresholds at the time of the proposed transaction, it is not possible to use it as a mechanism to address risks in outsourcing or offshoring of assets owned by domestic entities or where sales fall outside of the FIRB's screening thresholds. Accordingly, the creation of the security of critical infrastructure framework will improve upon existing safeguards which protect critical assets.

In practice, the Security of Critical Infrastructure Bill will add to the work currently undertaken by the Critical Infrastructure Centre, which collaborates with asset owners, asset operators and state and territory regulators to identify risks, implement asset-specific mitigation strategies and develop sector-wide best-practice guidelines. The CIC engages with asset owners and operators through the Trusted Information Sharing Network, TISN, and directly as needed. This is a welcome addition to the regulatory architecture that protects and maintains assets critical to Australia's security and continuing economic and social wellbeing.

The PJCIS conducted an inquiry into this bill. We spoke to a range of stakeholders and other interested parties. The committee made nine recommendations, the majority of which relate to the implementation of the bill rather than its design or intentions. I note that in the government's response to the committee's report, which was tabled just now, the government has accepted all of the committee's recommendations and has circulated amendments and a supplementary explanatory memorandum in the chamber to give effect to these recommendations. Labor too supports the recommendations of the committee.

Regulatory schemes such as that proposed in the bill work best in the presence of an active and productive dialogue between government and the affected industry participants. Industry, government and the community all benefit when asset owners know in advance what is required of them and therefore can take the necessary steps without government needing to resort to regulatory intervention. The PJCIS report recommends sensible steps to ensure that such a dialogue is established in the implementation of this bill. It responds to evidence that was provided to the committee from industry stakeholders. I would like to take the opportunity to thank those stakeholders for their contribution to the committee's work. I commend these bills to the Senate.

Senator McKIM (Tasmania) (10:59): The Security of Critical Infrastructure Bill 2017 introduces, in essence, two new measures: a register of critical infrastructure and ministerial directions powers. The bill will apply to approximately 140 assets in the high-risk electricity, water, gas and ports sectors. According to the explanatory memorandum, the bill focuses primarily on the risk of sabotage, espionage and coercion in Australia's highest-risk critical infrastructure sectors and provides 'a risk based regulatory framework to manage national security risks from foreign involvement in Australia's critical infrastructure'.

The purpose of the register is to provide a more detailed understanding of who owns and controls critical infrastructure assets. I'll make some observations about ownership of critical infrastructure later in my speech. The register requires reporting entities who are either direct interest holders or the responsible entity of critical infrastructure assets to provide interest and control information and operational information within a certain time frame. The explanatory memorandum states:

This information will assist the Government to identify who owns and controls the asset, its board structure, ownership rights of interest holders, and operational, outsourcing and offshoring information.

I note the government has proposed several amendments to this bill that implement recommendations made by the Parliamentary Joint Committee on Intelligence and Security.

In January 2017, the Australian government established the Critical Infrastructure Centre and stated that the centre was established in response to the complex and evolving national security risks to critical infrastructure. But it ought come as no surprise to the Australian people that the government has abjectly failed to meaningfully consider one of the biggest threats to critical infrastructure in this country, and that is climate change. It's not just the direct risk of increasing levels of climate risk that will be the problem in the future. In a submission to the Critical Infrastructure Centre in March 2017, the CSIRO wrote:

We provide the following comments to note that the discussion paper is silent on the potential effects of global environmental change, particularly climate change, in systematically altering the risks faced by critical infrastructure from the range of security-related sources …

The CSIRO went on to say in their submission:

… climate change may be exacerbating some of the drivers of the key security risks addressed in the current paper, for example, placing greater pressure on foreign interests to consider espionage, sabotage or even coercion, because of growing pressures on the resources of those foreign interests.

It's not only this bill that doesn't mention climate change as a risk; in fact, the government's Critical infrastructure resilience strategy: plan is astoundingly silent on climate change. Australia ought not, and the government ought not, ignore the risks to national security and the risks to infrastructure posed by the disruption of our planet's climate. The ARC's Centre of Excellence for Climate Extremes recently stated:

Australia lags behind the US and some European countries in examining, assessing and responding to climate change risks in terms of national security. Vulnerabilities associated with national security and climate change are already increasing and exist now. These are not "future issues" that can be left for a decade before strategies are considered. The creation of a high-level taskforce to examine risks associated with climate change and national security is urgent and overdue.

It is important to acknowledge that the 2016 Department of Defence white paper did identify climate change as one of the six key drivers in the development of Australia's security environment and as 'a major challenge for countries in Australia's immediate region'.

While that's the case, it appears the government has no plan and no appetite to do anything about our vulnerabilities in the areas of national security and infrastructure caused by climate disruption. Instead, it's been left to the Australian Greens, through the mechanisms available to us in this parliament, to establish two inquiries, which are currently running through Senate committees, into the impact of climate change and the threats posed by climate change to infrastructure and our national security.

I say to senators that we in the Australian Greens understand the political imperatives behind ramping up fear of attacks by terrorists or other hostile forces on the Australian people and on our infrastructure. We understand what has been a bipartisan approach, in effect, by the Labor and Liberal parties in this area. But I say to the Labor and Liberal parties: don't turn a blind eye to threats to national security and threats to our infrastructure posed by a disrupted climate that is caused by humans emitting greenhouse gases, which continue to rise and have been rising for the last couple of hundred years.

Climate change is one of the biggest threats to our country's way of life. It is a threat to everything we do. It is a threat to the way we work, live and play. It's a threat to our health system and our education system, the way we support people with disabilities, our transport systems, our energy systems, our road networks and our ports. It is a threat to our way of life. It's driving mass displacement of people around the world, and we're not immune to those displacements here in Australia. The displacement, for example, of the Syrian people was driven, at least in part, by an unprecedented drought between 2007 and 2013. It displaced a large number of Syrian people from the country in Syria to the cities, which made the cities unsustainable and ultimately led to a mass displacement of Syrian people, which caused Australia, under then Prime Minister Tony Abbott, under pressure from the Australian Greens, to create a special intake of 12,000 Syrian people. They were displaced in part by a drought that we know was more likely to have occurred as a result of climate change.

So, while the Australian Greens are comfortable with supporting this legislation and will be supporting it, we need to understand that this government has been putting the blinkers on and has effectively considered the threat posed to our country's infrastructure by terrorism and hostile forces as the only threat worthy of legislation of the type we're debating today. That paradigm, that mentality, lets down our country. It lets down our people and it lets down the very infrastructure that the government purports to want to protect.

The outcomes from the two Senate inquiries that are currently running, thanks to being advocated for and moved by the Australian Greens, will make very interesting reading. At some of the hearings, we've discovered that, within the departmental bureaucracy of this country, there is significant acknowledgement and concern about the threats and risks posed by climate change to our infrastructure and to our way of life. The problem we've got is that that acknowledgement does not seem to percolate through to the highest levels of government. That's a real problem for our country and it's something that the Australian Greens will continue to advocate for and will continue to drive debate on in this place. If we were to not do that, if we were to join the rest of the Senate in staying silent on the threats and risks caused by climate change, ultimately we would be letting the Australian people down.

This bill and the materials associated with it make it very clear that foreign involvement in Australia's critical infrastructure creates risk. You can't read this bill, and the materials associated with it, in any other way. So I want to place on the record that this is one of the reasons—certainly not the only one—that the Australian Greens are proposing the nationalisation of some infrastructure assets that are currently in private hands. For example, we need to start returning Australia's electricity grid to public hands The privatisation of much of our energy generation infrastructure and much of our electricity transmission infrastructure has been an abject failure. It's failed to deliver system reliability, it's failed to play a meaningful role to date in bringing Australia's emissions down and it's failed to deliver reliable electricity at the lowest possible cost to the Australian people. That's why we're proposing to begin returning some of our energy infrastructure assets into public hands by nationalising the five privately owned interconnectors.

As a senator from Tasmania, where we've learned in just the last few days that the state government is engaged in legal action against the owners of Basslink over the outage a couple of years ago that's been discussed at length in debate in the Senate, I say that Basslink, being privately owned, has not delivered for Tasmania. Senators would be aware that, when Basslink was first proposed by Hydro Tasmania back in the late nineties and ultimately the early 2000s, the Greens advocated against Basslink. We said we should be investing in making Tasmania energy self-sufficient. Having 100 per cent renewable energy was a legitimate aspiration for Tasmania prior to Basslink, which, of course, just provided another lifeline and another market opportunity for the dirty brown coal generators of the Latrobe Valley. We said that if we could embed 100 per cent renewable energy into all the goods and services that we produce in Tasmania it would give us a massive competitive advantage over the rest of the country and the rest of the world. We didn't support that investment and the $90 million-plus per annum that Hydro Tasmania is still paying as a facility fee.

If we'd been heeded back then, we wouldn't have had the energy crisis that Tasmania has had. The batteries nearly ran flat and the dams nearly ran empty because of the incompetence of the Hodgman Liberal government and the then energy minister, Matthew Groom. Instead, we could have shown Australia and the rest of the world what leadership on renewable energy looks like. Of course, history shows that Hydro Tasmania, despite some internal contention, went ahead and recommended to government that Basslink be put in place—and, as I said, that threw a much-needed lifeline to the dirty brown coal generators of the Latrobe Valley. That drove Australia's emissions profile up and it drove Tasmania's emissions profile up—when we have the best network of hydro-electric power in the country, renewable energy and ultra-low emissions that we could have actually used to drive prosperity, wellbeing and competitive advantage for our state.

So we make no bones about it. We want to see the five privately owned interconnectors in Australia nationalised, returned to public hands, because neo-liberalism and laissez-faire capitalism have abjectly failed the people they purport to serve. That failure is for a number of reasons but ultimately one of the key drivers has been a failure to price in the environmental and social impacts that are delivered by the private companies who own infrastructure and other assets under the current system of laissez-faire capitalism. Of course we need to price in things like carbon, environmental toxins and social harm, and the Australian Greens are very determined to keep working and advocating for those things to happen.

As part of that, as I said, we want to make sure that we begin renationalising, or, in some cases, simply nationalising, many of the energy assets that exist in this country. If the government is so concerned about the foreign ownership of and foreign influence on infrastructure assets, perhaps the government needs to ask itself whether or not it, on behalf of the Australian people, would be better off owning those assets itself. We in the Australian Greens have asked ourselves that question, and we have answered that question with a resounding yes.

Many pieces of infrastructure in this country that are currently in private hands would deliver far better returns for the Australian people if they were put back into public hands and public ownership. The infrastructure in this country was created by the blood, sweat and tears of Australian workers, and its privatisation has abjectly failed to deliver for the people that it was supposed to serve. It's time for a mature debate in this country about the ownership of our infrastructure, the risks to that infrastructure of foreign ownership—which this legislation, in some ways, is designed to mitigate—and, most crucially, whether or not that infrastructure would be better off in public hands.

We call on the government and the Labor Party—who, to date, to my knowledge, haven't intervened or participated in this debate—to get on board with the discussion, because it's beyond time that we had this conversation in Australia; it's beyond time that we had this conversation in this parliament. As with so many other things, like the issues of a royal commission into banks and a federal anticorruption authority, it will be the Australian Greens that will drive the debate and, in having that debate, will ensure that we consider the ultimate public good.

If we can remove the interests of corporations and other vested interests that impact so grievously on our political conversation in this country, if we can remove consideration of corporate profits and consideration for the people who are the corporate mates of so many Labor and Liberal people in this country—and that, I acknowledge will be a very hard ask—if we can do the job we're supposed to do, which is to act in the interests of the greater public good, if we can have a respectful conversation and bring the Australian people along with us, then I have no doubt that we will land in a place where we will see much of the infrastructure that's been privatised over the last few decades returned to public hands.

Senator HANSON (Queensland) (11:18): Let me put it on the record: One Nation is totally opposed to any sale of our assets. I have said, for the last 22 years, that neither our infrastructure, such as water, sewage, telecommunications and electricity, nor our defence services should ever, in any way, shape or form, end up in the hands of foreigners; these services should always remain in the hands of the government and be produced at a reasonable cost for the people of Australia.

I find it amazing that we have before us the Security of Critical Infrastructure Bill 2017. It basically says that owners and operators of prescribed ports, electricity and water assets will be required to provide information detailing the operational and ownership control arrangements of their assets. The government may direct these owners and operators to do, or not do, certain things with respect to their asset when there is a perceived risk to national security. That beggars belief. I can't believe that—'a perceived risk to national security'—when we've allowed our most important assets to be sold to foreign ownership.

Let's go back here:

Both Federal and state governments have put the issue of privatising government assets firmly on the agenda.

At the time it was former coalition federal Treasurer Joe Hockey who:

… indicated at the recent meeting of COAG that the states should look closely at privatising infrastructure …

It was not just the coalition but also the Labor Party in Queensland. Under a then Labor government, it:

… started the recent process by privatising the Port of Brisbane in 2010 (selling a 99-year lease for what is now a seemingly cheap $2.1 billion) in order to replenish its empty Treasury coffers.

That's what it comes down to, empty Treasury coffers, because neither side can actually manage the cheque book. When it gets to this point they say, 'Let's just sell off the assets.' That is clearly what happened with this selling off of our assets and the rising costs of electricity.

Apart from the renewable energy and the billions of dollars we're paying to prop it up, the cost is escalating, because these companies own the power plants, just like what happened in South Australia. A foreigner owned the power plant in South Australia. It has the highest cost, along with Queensland, in the world for electricity—privatisation.

Have a look at the recent article titled 'Australian port sold for $7.3 billion to consortium; China fund among backers'. It states:

A consortium of global and domestic funds, backed by investors including China Investment Corp, agreed to buy Australia's busiest port for a higher-than-expected A$9.7 billion … a sign that tough equity markets are helping fuel appetite for infrastructure.

We're selling stuff to Canada on the superannuation. It goes on to say:

The sell-off is part of Australia's more than A$100 billion privatization program, where state and federal governments are trying to cut debt and bankroll capital works by selling "mature" infrastructure assets—

that they will control. Let me tell you something: I'm not an economist, but the fact is that companies buy these infrastructure projects to make money out of them. It's not about providing a service and feeling good about it. It's all about what they can make out of it. A lot of the time they don't even pay tax in this country, but we're allowing them to take over important assets. What about the 99-year lease of the Darwin Port? This is where crucial product comes into our country, into our ports, and they own the ports. They can charge whatever they want from when they have ownership and we've got no control over it. More about ports:

New South Wales (under a Coalition Government) followed Queensland's lead by selling Port Botany and Port Kembla in 2012 and raking in a healthy $5.1 billion … The NSW Treasurer, Mike Baird, has also just announced that expressions of interest are open for a 98-year lease for the Port of Newcastle.

And you had the then Victorian opposition leader, Daniel Andrews—Labor—who proposed to 'sell a long-term lease of the Port of Melbourne as the cornerstone of their Project 10,000'. They can't manage money, so they're selling all the assets. These assets are owned by the people, and yet governments are selling them off.

This is what I was saying about Canada:

… The Future Fund, and Canada's Ontario Municipal Employees Retirement System will each get a fifth of Port of Melbourne following the sale, which is packaged as a 50-year lease.

Everyone around the world thinks that Australia is a good investment but the Australian government itself. Then, just recently, didn't we hear the coalition government talking about using our trillion-dollar fund to go to America and buy infrastructure over there? We're investing over there but we're not investing in our own country with our dollars. What about us? People are screaming out for the infrastructure that we need here. These bills beggar belief.

You're selling off all our important assets. You allowed the sale of Cubbie Station—another important landmark owned by Australians—and it was sold to the Chinese. Cubbie Station is important for its water, and yet we've sold it. We've sold so much of our land to foreigners. Our public housing is being sold to foreigners, putting it out of the hands of Australians who want to own their own homes but can't afford to.

This is not just one side of politics; this is both sides. We have seen it for years and years. Both the coalition and Labor have done absolutely nothing about it. You keep speaking the same old rhetoric all the time. Once you're in opposition, you blame the other side as if they're the ones that have caused it. You're both to blame for this. You both have actually destroyed this country. You're getting rid of our important infrastructure. That's why electricity costs are going up and up and up. You're selling off our ports. You've sold off land in this country. You've put in place legislation to stop the foreign ownership of housing here, but you don't follow through. All you've done is to put more and more red tape on it, to make it look as if you're doing the right thing, but you don't follow through. You're tying us up so tightly in this country but you're not addressing the real concerns of the Australian people. So stop blaming each other and do something about it.

By introducing this bill, yes, you're calling for accountability. But the horse has bolted. Now what are we going to do about it? Well, we'd better address this for security reasons. Is that going to stop you from allowing foreign ownership of our most important assets in this country? I don't think so—because you're trying to catch up, because we're in so much debt. Look at where you are wasting the moneys, in a lot of these bureaucrats' wages, as I pointed out. You were paying the CEO of Australia Post $5.6 million a year, which was ridiculous. What a lot of these CEOs get paid is over the top. The number of public servants and all these consultants' fees that you've been paying are over the top. I cannot believe that you've got to the stage where you've got to sell our assets—the taxpayers' assets—to balance the books!

One Nation will be supporting this bill. But I had to have my say over this, because it beggars belief that you've allowed things to get to this stage. I'd suggest that you really have a good look at who is putting in to buy up our assets in this country, and say, 'No!' Start holding on to our assets for the Australian people. You've given so much control to other countries, it's an absolute disgrace!

Senator FIFIELD (Victoria—Minister for Communications, Minister for the Arts and Deputy Leader of the Government in the Senate) (11:28): I thank colleagues for their contributions. We are all in agreement that critical infrastructure is integral to our prosperity. Secure and resilient infrastructure does underpin the effective functioning of our society. It ensures we have continuous access to essential services for everyday life, such as food, water, energy and communications. The Security of Critical Infrastructure Bill 2017 and the Security of Critical Infrastructure (Consequential and Transitional Provisions) Bill 2017 support the government's efforts to safeguard Australia's critical infrastructure. They will supplement existing federal, state and territory regulations and ensure that the government has the necessary powers to protect Australia from the national security risks of sabotage, espionage and coercion stemming from malicious foreign involvement in our critical infrastructure. The bills reflect consultation with states and territories and industry stakeholders. Importantly, they will also incorporate all nine recommendations made by the PJCIS. I thank members of the committee for their comprehensive review of the bills. Amendments have already been circulated to give effect to these. Earlier I also tabled the government's response to the committee report. We indicated in that that we accept all nine of the committee's recommendations. I'm pleased that the government, the opposition and the committee could work together to progress this important legislation.

The bills align with the government's clear intention to continue to cooperate and collaborate with all levels of government, regulators, owners and operators of critical infrastructure. They strike an appropriate regulatory balance by acknowledging the shared responsibility for managing national security risks while empowering the Commonwealth to intervene to mitigate a risk where existing regimes cannot be used. With these bills the government is taking the necessary steps to strengthen the security and resilience of Australia's critical infrastructure. I commend the bills to colleagues.

Question agreed to.

Bills read a second time.

Senator FIFIELD (Victoria—Minister for Communications, Minister for the Arts and Deputy Leader of the Government in the Senate) (11:31): As foreshadowed, the government will be moving amendments to these bills. Again I thank the committee for their comprehensive and timely review of the bills. The government has accepted all nine recommendations made by the committee. The government will give effect to the committee's recommendations through these amendments: providing greater clarity and examples on how the legislation is intended to operate in an addendum to the explanatory memorandum, which has been tabled; considering fuel security issues as part of the next national energy security assessment; and, upon passage, providing detailed guidance and support for industry on their obligations under the legislation.

The amendments implementing the committee's recommendations will: amend the definition of 'direct interest holder' and introduce definitions of 'influence or control' and 'associates' to ensure that direct interest holders report on all entities who may be in a position to influence or control the asset or the direct interest holder; introduce an exemption from reporting for moneylenders where the moneylender arrangement does not put the lender, holding entity or subsidiary in a position to influence or control the asset; require that a person receives written notice if they are subject to an ASIO adverse security assessment as well as information on his or her right to apply for merits review in the Administrative Appeals Tribunal; and include a requirement for the Parliamentary Joint Committee on Intelligence and Security to review the bills within three years of the bills receiving royal assent. I have already tabled associated supplementary explanatory memorandums to provide details on these amendments.

The proposed amendments also address some minor technical issues, including refining the definition of 'critical water asset' to clarify that it applies to one or more systems managed by a utility where those systems ultimately service more than 100,000 connections, and ensuring the definition of 'protected information' applies to documents as well as information. I seek leave to move amendments (1) to (20) on sheet KE133 together.

Leave granted.

Senator FIFIELD: I move:

Security of Critical Infrastructure Bill 2017:

(1)Clause 5, page 5 (after line 14), after the definition of approved form, insert:

associate has the meaning given by section 8B.

(2) Clause 5, page 5 (after line 17), after the definition of commencing day, insert:

corporate entity means an entity other than an individual.

(3) Clause 5, page 5 (lines 22 to 25), omit the definition of critical water asset (not including the note), substitute:

critical water asset means one or more water or sewerage systems or networks that:

(a) are managed by a single water utility; and

(b) ultimately deliver services to at least 100,000 water connections or 100,000 sewerage connections.

(4) Clause 5, page 6 (after line 24), after the definition of grace period, insert:

holding entity has the meaning given by subsection 8C(2 ) .

influence or control has a meaning affected by section 8A.

interest in an asset means a legal or equitable interest in the asset.

(5) Clause 5, page 6 (after line 28), after the definition of international relations, insert:

moneylending agreement has the meaning given by subsection 8(3).

(6) Clause 5, page 7 (lines 14 to 22), omit the definition of protected information, substitute:

protected information means a document or information that:

(a) is obtained by a person in the course of exercising powers, or performing duties or functions, under this Act; or

(b) records or is the fact that an asset is declared under section 51 to be a critical infrastructure asset; or

(c) was a document or information to which paragraph (a) or (b) applied and is obtained by a person by way of an authorised disclosure under Division 3 of Part 4 or in accordance with section 46.

(7) Clause 5, page 8 (after line 34), after the definition of security regulated port, insert:

senior officer of a corporate entity means:

(a) for a body corporate—a director of the body corporate; or

(b) for a unit trust:

(i) the trustee of which is an individual—the trustee; and

(ii) the trustee of which is a body corporate—a director of the trustee; and

(iii) in any case—any other individual involved in the central management and control of the trust; or

(c) an individual who is, or an individual in a group of individuals who are, in a position to determine the investments or policy of the entity or a trustee of the entity; or

(d) an individual who makes, or participates in making, decisions that affect the whole, or a substantial part of, the business of the entity; or

(e) an individual who has the capacity to affect significantly the financial standing of the entity.

subsidiary has the meaning given by subsection 8C(1).

(8) Clause 6, page 9 (line 33) to page 10 (line 8), omit all the words from and including 'asset, including:' to the end of paragraph (1) (f), substitute 'asset;'.

(9) Clause 6, page 10 (lines 13 to 20), omit paragraph (1) (h), substitute:

(h) the name of each other entity that is in a position to directly or indirectly influence or control:

(i) the first entity; or

(ii) any entity covered by a previous application of this paragraph;

(ha) in relation to each entity (the higher entity) covered by paragraph (h):

(i) the information in paragraphs (b) to (d), and (e) if appropriate, as if a reference in those paragraphs to the first entity were a reference to the higher entity; and

(ii) information about the influence or control the higher entity is in a position to directly or indirectly exercise in relation to the first entity or any entity covered by paragraph (h);

(10) Clause 6, page 10 (after line 22), at the end of subclause (1), add:

Note 1: For example, if Holding Entity 1 holds a 10% interest in the first entity, and Holding Entity 2 holds a 10% interest in Holding Entity I, the information mentioned in paragraphs (1) (h) and (ha) relating to those holding entities, would be given to the Secretary.

Note 2: For the definition of influence or control, see section 8A.

Note 3: For interests held by trusts, partnerships, superannuation funds and unincorporated foreign companies, see section 53A.

(11) Clause 8, page 12 (lines 1 to 3), omit paragraph (1) (a), substitute:

(a) together with any associates of the entity, holds an interest of at least 10% in the asset (including if any of the interests are held jointly with one or more other entities); or

(12) Clause 8, page 12 (line 4), omit 'a lease of, or an interest in,', substitute 'an interest in'.

(13) Clause 8, page 12 (after line 6), at the end of subclause (1), add:

Note: For interests held by trusts, partnerships, superannuation funds and unincorporated foreign companies, see section 53A.

(14) Clause 8, page 12 (lines 7 to 17), omit subclause (2), substitute:

Exemption for moneylenders

(2) Subsection (1) does not apply to an interest in an asset held by an entity if:

(a) the entity holds the interest in the asset:

(i) solely by way of security for the purposes of a moneylending agreement; or

(ii) solely as a result of enforcing a security for the purposes of a moneylending agreement; and

(b) the holding of the interest does not put the entity in a position to directly or indirectly influence or control the asset; and

(c) if the entity is holding the interest solely by way of security—enforcing the security would not put the entity in a position to directly or indirectly influence or control the asset.

(3) A moneylending agreement is:

(a) an agreement entered into in good faith, on ordinary commercial terms and in the ordinary course of carrying on a business (a moneylending business)of lending money or otherwise providing financial accommodation, except an agreement dealing with any matter unrelated to the carrying on of that business; or

(b) if the entity:

(i) is carrying on a moneylending business; or

(ii) is a subsidiary or holding entity of a corporate entity that is carrying on a moneylending business;

an agreement to acquire an interest arising from a moneylending agreement (within the meaning of paragraph (a)).

(15) Page 12 (after line 17), after clause 8, insert:

8A Meaning of influence or control

(1) An entity is in a position to directly or indirectly influence or control an asset if:

(a) the entity is in a position to exercise voting or veto rights in relation to the body that governs the asset; or

(b) the entity is in a position to make decisions that materially impact on the running of, or strategic direction in relation to, the asset; or

(c) the entity has the ability to appoint:

(i) persons to the body that governs the asset; or

(ii) key personnel involved in running the asset; or

(d) the entity is in a position to influence or determine decisions relating to:

(i) the business plan, or any other management plan, for the asset; or

(ii) major expenditure relating to the asset; or

(iii) major contracts or transactions involving the asset; or

(iv) major loans involving the asset.

Note: For interests held by trusts, partnerships, superannuation funds and unincorporated foreign companies, see section 53A.

(2) An entity (the controlling entity) is in a position to directly or indirectly influence or control another entity (the controlled entity)if the controlling entity:

(a) is in a position to exercise voting or veto rights in relation to the controlled entity; or

(b) is in a position to make decisions that materially impact on the running of, or strategic direction of, the controlled entity; or

(c) has the ability to appoint persons to the board of the controlled entity; or

(d) is in a position to influence or determine decisions relating to:

(i) the business plan, or any other management plan, for the controlled entity; or

(ii) major expenditure relating to the controlled entity; or

(iii) major contracts or transactions involving the controlled entity; or

(iv) major loans involving the controlled entity; or

(e) together with any associates of the controlling entity, holds an interest of at least 10% in the controlled entity (including if any of the interests are held jointly with one or more other entities).

(3) This section does not limit when an entity is in a position to directly or indirectly influence or control an asset or other entity.

8B Meaning of associate

Each of the following persons is an associate of a person:

(a) any relative of the person;

(b) any person with whom the person is acting, or proposes to act, in concert in relation to an asset;

(c) any person with whom the person carries on a business in partnership;

(d) any corporate entity of which the person is a senior officer;

(e) if the person is a corporate entity:

(i) any holding entity of the corporate entity; or

(ii) any senior officer of the corporate entity;

(f) any corporate entity whose senior officers are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of:

(i) the person; or

(ii) if the person is a corporate entity—the senior officers of the person;

(g) a corporate entity if the person is accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of:

(i) the corporate entity; or

(ii) the senior officers of the corporate entity;

(h) any body corporate in which the person holds an interest;

(i) if the person is a body corporate—a person who holds an interest in the body corporate;

(j) the trustee of a trust in which the person holds an interest;

(k) if the person is the trustee of a trust—a person who holds an interest in the trust;

(l) any other person or body prescribed by the rules.

8C Meanings of subsidiary and holding entity

Meaning of subsidiary

(1) A corporate entity (the lower entity)is a subsidiary of another corporate entity (the higher entity)if:

(a) the higher entity:

(i) is in a position to control more than half the voting power in the lower entity; or

(ii) holds more than half the issued securities in the lower entity (disregarding any securities that carry no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b) the lower entity is a subsidiary of a corporate entity that is the higher entity's subsidiary (including because of one or more applications of this subsection).

Meaning of holding entity

(2) A corporate entity (the higher entity)is a holding entity of another corporate entity (the lower entity)if the lower entity is a subsidiary of the higher entity.

(16) Clause 12, page 15 (line 18), after 'quantity of', insert 'at least'.

(17) Clause 53, page 44 (lines 5 to 7), omit ', but the obligations that would be imposed on them are instead imposed on the partners, trustees or appointed officers', substitute ', but with some modifications'.

(18) Page 45 (before line 2), before clause 54, insert:

   53A How certain entities hold interests

For the purposes of this Act, a trust, partnership, superannuation fund or unincorporated foreign company (as the case requires) is taken to hold an interest in an asset or entity if:

(a) one or more trustees hold the interest on behalf of the beneficiaries of the trust; or

(b) one or more partners hold the interest on behalf of the partnership; or

(c) one or more trustees hold the interest on behalf of the beneficiaries of the superannuation fund; or

(d) one or more appointed officers hold the interest on behalf of the company.

Note: For the definition of appointed officer, see section 5.

(19) Heading to Division 4, page 49 (line 1), after 'Periodic reports', insert ', reviews'.

(20) Page 49 (after line 25), after clause 60, insert:

    60A Review of this Act

(1) The Parliamentary Joint Committee on Intelligence and Security must:

(a) review the operation, effectiveness and implications of this Act; and

(b) without limiting paragraph (a), consider whether it would be appropriate to have a unified scheme that covers all infrastructure assets (including telecommunication assets) that are critical to:

(i) the social or economic stability of Australia or its people; or

(ii) the defence of Australia; or

(iii) national security; and

(c) review the circumstances in which any declarations have been made under Part 6 of this Act (declarations of assets by the Minister); and

(d) report the Committee's comments and recommendations to each House of the Parliament.

(2) The Committee must begin the review before the end of 3 years after this Act receives the Royal Assent.

Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (11:34): Before proceeding to deal with the amendments, I wish to place on record a response to some of the remarks made by Senator McKim in the second reading debate. Senator McKim made a series of remarks about climate change and the impact of climate change on infrastructure. He went on to make a very unrealistic, unreasonable and inaccurate characterisation of the Labor Party's position in relation to these issues, and that characterisation cannot be allowed to stand unchallenged.

I remind Senator McKim and others in the chamber that, in 2007, it was the Labor opposition, under Kevin Rudd, and the states and territories who commissioned Professor Garnaut to undertake a very significant examination of the impact of climate change on the Australian economy and society. Professor Garnaut did an incredibly detailed piece of work—which I actually had the great fortune to be part of in a very, very small way—which, amongst other things, examined the impact of climate change on assets, including the infrastructure sectors that are the subject of this bill. Upon coming to government, the Labor Party and the then Prime Minister committed the Commonwealth to participate in the Garnaut climate change review, and the Labor Party then established an entire department dedicated to prosecuting both climate change emissions reduction and climate change adaptation. That department had an entire division that dealt with climate change adaptation and it did extensive work with the infrastructure sector, engaging with that sector on how to deal with the impacts of climate change on its assets.

It happens that I also subsequently worked in the private sector with a range of businesses in the infrastructure sector, nearly all of whom were actively engaged in assessing climate change risks to their businesses. In fact, I've spoken about this in this chamber on many occasions. Senator McKim's claim that it is only the Greens political party that has any interest in this issue and that it is the Greens political party that has led on this issue is laughable. It is inconsistent with the historical record, and I rise to place that on record in this chamber.

The opposition is pleased to support the amendments moved by Senator Fifield. They reflect the recommendations of the PJCIS. I note in particular the amendments in relation to the review function for the PJCIS. The amendments provide that the committee will review the operation, effectiveness and implications of the act within three years and examine whether or not it would be appropriate to have a unified scheme that covers all infrastructure assets, including telecommunication assets. Telecommunication assets are presently the subject of a separate regulatory regime, and the PJCIS asked government to consider whether or not at some point in the future these two regimes might sensibly be merged. The amendments before the chamber give effect to that recommendation and I commend them to the house.

Senator McKIM (Tasmania) (11:37): Senator McAllister often makes excellent, outstanding, thoughtful and intelligent contributions to this Senate, but the one she has just made does not fall into any of those categories. I'll check the Hansard, but I don't recall saying that the ALP hadn't participated in a debate around climate change. Clearly, the ALP has participated in that debate. It hasn't been some of their finest work, I might add.

Senator Cameron: You can talk!

Senator McKIM: They were dragged, kicking and screaming into action on a price on carbon by the Australian Greens, and both Senator Cameron and Senator McAllister know that full well. As I said, I'll check the Hansard, but the point that I recall making is that the ALP hasn't contributed to the debate around nationalising some infrastructure that is currently in private hands. If Senator McAllister or Senator Cameron or anyone else wants to correct me on that, I'm happy to be corrected, but I haven't noticed Labor out advocating for the nationalisation of transmission infrastructure, for example, as the Australian Greens have. That's the accusation that I recall making. I don't want to get into a tit for tat here, but I think you'll find that Senator McAllister has just engaged in what we should these days call a straw person argument and has torn down and trampled all over a straw person, because, in fact, the things she was objecting to that she claims I had said I actually didn't say. With regard to these amendments, I think it's an indication of maturity from the government to accept the recommendations of the joint standing committee, and these amendments will be supported by the Australian Greens.

Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (11:39): I thank Senator McKim for his recognition of the Labor Party's leadership in relation to climate change adaptation.

Question agreed to.

Senator FIFIELD (Victoria—Minister for Communications, Minister for the Arts and Deputy Leader of the Government in the Senate) (11:40): I move the government amendment on sheet GJ157:

Security of Critical Infrastructure (Consequential and Transitional Provisions) Bill 2018

(1) Schedule 1, page 3 (after line 10), after item 1, insert:

1A Section 38A (at the end of the heading)

Add 'or directions under the Security of Critical Infrastructure Act'.

1B After subsection 38A(1)

Insert:

(1A) This section also applies to an adverse security assessment in respect of a person (the assessed person) if the assessment is given for the purposes of section 32 of the Security of Critical Infrastructure Act 2018 (direction if risk of act or omission would be

prejudicial to security).

Question agreed to.

Bills, as amended, agreed to.

Bills reported with amendments; report adopted.

Senator FIFIELD (Victoria—Minister for Communications, Minister for the Arts and Deputy Leader of the Government in the Senate) (11:41): I move:

That these bills be now read a third time.

Question agreed to.

Bills read a third time.

Senator CAMERON (New South Wales) (11:42): Today we debate two bills that at least in terms of intent are uncontroversial. In fact, Labor will support schedule 1 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017 without hesitation. Schedule 2 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 provides for the appointment of a productivity commissioner with extensive skills and experience in dealing with policies and programs that have an impact on Indigenous persons and experience with dealing with one or more communities of Indigenous persons. Personally, I am always very happy to get some good people into the Productivity Commission. However, Labor has raised concerns about the manner in which indigeneity is defined in schedule 2 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017. We'll have more to say about this in the committee stage of the bill; however, we will support the bill with the amendment that the government has circulated to address this issue.

Turning to the details of the Treasury laws amendment bill, schedule 1 makes amendments to the Corporations Act 2001 to strengthen protections against manipulation of financial benchmarks. Firstly, schedule 1 of the bill will make manipulation of all financial benchmarks used in Australia a specific criminal offence and subject to civil penalties. Individuals will be liable for fines of up to greater than three times the benefit they gain, or $945,000, which is 4,500 penalty units. A body corporate will be liable to fines of up to the greater of $9.45 million—that is, 45,000 penalty units—three times any benefit from manipulation or 10 per cent of the entity's turnover in the previous year. Civil penalties will also apply. Currently, manipulation of financial benchmarks is enforced using existing laws relating to market manipulation, false trading and market rigging.

Secondly, schedule 1 to the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 will establish a new licensing regime requiring administrators of certain designated significant financial benchmarks to obtain a new benchmark administrator licence from the Australian Securities and Investments Commission. Administration of financial benchmarks at present does not require a licence and is not a regulated activity under current law. ASIC will have the power to designate significant financial benchmarks with the consent of the minister. Financial benchmarks can be so designated if the benchmark is systemically important, could cause instability or would materially impact Australian investors if the availability or integrity of the benchmark were disrupted.

Thirdly, the bill will give ASIC powers to make rules imposing a regulatory framework for licensed benchmark administrators and related matters. This framework will reflect a set of principles released by the International Organization of Securities Commissions. The bill will also give ASIC the power to compel market participants to make submissions to ensure the continued generation of a financial benchmark during times of financial market stress. This is a power of last resort. The ASIC Supervisory Cost Recovery Levy Amendment Bill 2017 supports this regime by adding benchmark administrator licences to the list of entities from which the ASIC may recover its regulatory costs under the ASIC supervisory cost recovery levy.

The ASIC industry funding model is based on the principle that ASIC's regulatory costs should be borne by the entities that benefit from or cause the need for this activity. ASIC's regulatory costs are apportioned each year between subsectors according to the amount of ASIC's regulatory activity that they account for. Regulations provide methods and formulas for how ASIC's regulatory costs are to be apportioned across the various sectors and subsectors that it regulates.

The ASIC Supervisory Cost Recovery Levy Amendment Bill 2017 makes amendments to the ASIC cost recovery levy that corresponds to the new regulatory requirements in schedule 1 to the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017. Labor will support these measures which strengthen our laws against the manipulation of financial benchmarks. We have seen cases of manipulation of financial benchmarks around the world. In Australia, ASIC legal action regarding alleged manipulation of the bank bill swap rates by banks continues. Settlements with NAB and ANZ regarding attempted manipulation of the bank bill swap rate were struck with ASIC last year. Justice Jagot of the Federal Court is reported to have said that the conduct of traders was a gross departure from basic standards of commercial decency, honesty and fairness and that the Australian public had a right to be shocked and disgusted at what took place. These are very serious matters. As ASIC has noted, manipulation of the bank bill swap rate is not a victimless crime. There are winners and losers, and those winners and losers move around depending on whether the rate is moved up or down artificially. The bank bill swap rate impacts Australian businesses because it impacts financial products used by many Australian businesses to manage their financial affairs. We welcome the change in schedule 1 to this bill to strengthen protections against the manipulation of financial benchmarks.

We also welcome the corresponding changes in the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017. However, we note the poor record of those opposite when it comes to consumer protections in the financial sector. This is from a government that ignored the need for a royal commission into the banks. By contrast, Labor has a proud record of standing up against misconduct in the financial services sector. The previous Labor government introduced the National Consumer Credit Protection Act 2009. This was a single, standard and nationally consistent regime for consumer credit regulation and oversight. There was also Labor's enactment of the Future of Financial Advice reforms. The coalition voted against FOFA in the House. They voted against FOFA in the Senate. When they got into government, they tried to do everything they could to wind back the Future of Financial Advice reforms. They tried to hollow them out. They tried to gut them by legislation and then by regulation. Labor fought hard to protect FOFA.

Increasingly in 2016 ASIC found that FOFA requirements specifically opposed by the coalition helped to bring to light the massive fees-for-no-service scandal. The October 2016 ASIC report into the scandal showed that Australia's big four banks and AMP had spent years charging customers fees for services they did not receive. ASIC's report estimated that they were going to have to pay back nearly $180 million, excluding interest, to over 200,000 customers. In May 2017 these figures were revised upwards. The government ignored a range of examples like that for over 600 days—600 days when they stubbornly resisted the urgent need for a royal commission into the banks.

I will move to the Productivity Commission reforms. Schedule 2 of the Treasury Law Amendment (2017 Measures No. 5) Bill 2017 provides for the appointment of a commissioner with extensive skills and experience in dealing with policies and programs that have an impact on Indigenous persons and experience in dealing with one or more communities of Indigenous persons. The new law also increases the maximum number of commissioners, not including the commission chair, from 11 to 12.

In his Closing the gap report statement to parliament on 14 February 2017, the Prime Minister announced a new role for the commission in Indigenous policy evaluation and the expansion of the commission to include a new commissioner to oversee this work. According to the explanatory memorandum:

A number of high profile reports have highlighted the need for more evaluation of policies and programs that have an impact on Indigenous persons, including the Commission's Overcoming Indigenous Disadvantage Report 2016. This report included case studies of programs that are making a difference as 'things that work', but the report found that only a relatively small number have been rigorously evaluated. There is a pressing need for further evaluation to better understand which policies and programs are effective in improving outcomes for Indigenous persons.

Labor supports the inclusion of a Productivity Commissioner with expertise and remit for policy matters relating to Aboriginal and Torres Strait Islander people. There is, however, a significant issue that concerns Labor regarding the definition of 'Indigenous person' in the legislation. In the legislation as introduced, the definition of 'Indigenous person' is based on race and descent rather than the standard three-part definition based on descent, identification and acceptance in the community. We note that the government has circulated an amendment with regard to this definition, which Labor will support. As I've said, we'll have more to say about this issue in the committee stage of the bill.

In conclusion, Labor will support schedule 2 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017, with the amendment that the government has circulated. Labor supports the changes in schedule 1 to the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 to strengthen the rules against manipulation of financial benchmarks. We support the associated changes to the ASIC supervisory cost recovery levy in the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017. However, we note that these changes regarding financial benchmarks come from a government that has a record of turning a blind eye to misconduct in the banks and the financial sector. They come from a government that will always back the big end of town over ordinary Australians. Nothing could epitomise more the backing of the big end of town against ordinary Australians than this government's determination not to have a royal commission inquiry into the banks and this government's determination to give those selfsame banks something like $8 billion in tax cuts under its tax cut policies. This is a government that does whatever it can to minimise the impact of decency on banks. This is a government that regretfully announced a royal commission after the public were determined, with the support of the Labor Party, to have a banking royal commission. These bills are important.

The Productivity Commission has done some good work and some pretty ordinary work over a long period of time. If we're going to have an Indigenous commissioner, that Indigenous commissioner should be supported by the Productivity Commission, ensured proper resources in the Productivity Commission and be welcomed into the Productivity Commission, which seems to be a closed shop for those with highly conservative ideas and policy proposals on most of the issues that they deal with—not all, but most of them—and the Productivity Commission has to ensure that this Indigenous commissioner has the resources and the framework to deal with the issues of importance to Indigenous Australians.

This bill also goes to some of the worst aspects that we've seen of the banks' misbehaviour. The rorting that goes on by banks justifies what we have always argued for: a banking royal commission.

Senator Williams: No, you didn't do it always!

Senator CAMERON: We've got Senator Williams interjecting, and I'll take the interjection. Senator Williams, you were a lone voice in the coalition government about bad banking practices and the excesses of banks—not only bad behaviour but also illegal behaviour in banks. I don't know why you're getting all agitated now, because you've done a great job on this. Certainly, you will be remembered as one of the few coalition senators, if not the only coalition senator, who has stood up against bad behaviour by the banks. It's a credit to you. So just settle down. You don't need to get agitated. We're dealing with this issue. We're supporting what you have determined to do, and that is to make sure that banks are accountable.

I also have to say that you were one of the few on the government benches who was prepared to take the banks to task when they obviously needed to be taken to task. I'm sure, Senator Williams, through the chair, that you are not one of those who regretted the banking royal commission, because it's something that you took up for a long period of time as an absolute necessity to make sure that people in this country get treated fairly by the banks. It's just such a problem that you were an outlier among the coalition, that you were on your own, that you were a lone voice from this government against the excesses of banks. So I'm glad you intervened. I'm glad you reminded me about what a lone voice you were in the coalition in standing up against the bad behaviour of banks. You and I were on committees together in the past. We were both on the economics committee. It wasn't something that you woke up one morning and decided to run with. You were dealing with this for a long period of time before you became publicly vocal about the bad behaviour of banks. Then, when you did, you did a terrific job.

I'm not normally one to stand up here and praise an opposition senator, but in this area Senator Williams has got a good record. It's a pity he's got such a bad record in so many other areas, but in that area he's done a good job. That's why Labor, in this debate, are happy to support the position that the government's put up with the amendment to make sure that it's not up to a minister to determine who is an Indigenous person or not and that the standard proposal is dealt with. These are issues that are long overdue in addressing. These are issues that will go to the benefit of the Australian public. Labor support these bills as important bills. We certainly want to make sure that there are never race based definitions in any bills that come before the Senate, so Labor welcome the agreement of the government to remove any race based definitions in the bill.

These two bills, at least in intent, as I've said, are uncontroversial. We will support both of these bills. They are bills that are important. The concerns we have raised have been dealt with by the government. These will, in conjunction with the banking royal commission that we championed for so long, along with Senator Williams, make sure that things are better for ordinary Australians in dealing with banks in the future. The coalition should stop coming in here and just attacking unions. They should have been attacking the banks with the same venom they attack the union movement in this place. We would have had a better country, because the banks were not behaving well. The royal commission is exposing that. We support the bills. (Time expired)

Senator WHISH-WILSON (Tasmania) (12:02): I just want to make a brief contribution to this. Like others in the chamber, the Greens want to get home to our families, friends and others tonight. The substantial legislation around the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill has already passed the Senate. At the risk of being overly simplistic, these bills are tweaking the edges, but they're making necessary changes. I just want to put on record that the Greens will be supporting the bills. We are looking at Labor's amendments at the moment.

I also wanted to put on record that the Greens have been a part of this process. In 2014, the Senate Economics References Committee had a very important investigation into ASIC. I think that's been one of the defining moments of the Senate since I've been here in the last six years. I was part of that particular inquiry. Before Senator Williams leaves the chamber, I would like to also recognise the contribution he made. In fact, he asked me to join that committee and inquiry, and I did. Not only did we get the recommendation that we needed a cost recovery model for ASIC—and this is hopefully the end of that, and we've achieved that in four years—but much more came out of that inquiry. It was an inquiry that, although it started as an inquiry into ASIC, ended up being an inquiry into Commonwealth Bank. Later, that snowballed and cascaded into the action that we've taken in this place on the banks in the last five years. We saw a scandal at the Commonwealth Bank—clear fraud, misconduct and unethical behaviour—and the Senate Economics Committee made an unprecedented recommendation. I think we needed a royal commission just into the Commonwealth Bank.

The Greens campaigned on getting a royal commission into the banking and financial services sector back in 2015. We also had a really in-depth and very troubling inquiry into forestry managed investment schemes, which also showed the need for a royal commission into the banks. Why? Because we needed the coercive powers and the resources of a royal commission. The Senate did a fantastic job over numerous inquiries looking into financial misconduct. At the end of the day we can highlight these things but we seldom compel witnesses, search premises or documents, or even compel documents. These are the kind of things I hope the royal commission will look at.

I want to get it on record today that the Greens are very happy to have played a part in this legislation and in getting this here today, as well as the push that this chamber has made. I would recognise that the changes to the FOFA legislation around a similar time were also pivotal. You could almost feel the wind change in this place when the FOFA disallowance regulations came up. I compliment Labor on leading that disallowance, and we were happy to play a part in that. That took a lot of organisation and it was a really important moment in actually cracking down on financial misconduct in this country and getting some laws and regulations in place. That's all I'll say today because I understand that we need to move on. But we've been a big part of this, and it's a good example of the Senate working together to get good legislation.

Senator LEYONHJELM (New South Wales) (12:06): I rise to oppose the Treasury bills before us today—the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017. These bills burden financial markets with unwarranted red tape and burden the Productivity Commission with an unwarranted commissioner. The bills will mean financial service providers will face criminal penalties for intentionally influencing an index price or interest rate that the government considers to be a financial benchmark, such as the bank bill swap rate. Individuals will face up to 10 years in prison and a fine of nearly a million dollars, while businesses face fines of nearly $10 million.

This is outrageous. Intentionally influencing a price should not be a crime even if others put great importance on that price. If someone is stupid enough to base their decisions on the price of eggs, you shouldn't be banned from taking advantage of this by buying up eggs and driving up the price. The government says that intentionally influencing a price is already a breach of civil penalty provisions. This is wishful thinking. The government's case against ANZ, NAB and Westpac for alleged market manipulation and unconscionable conduct in relation to the bank bill swap rate is still before the courts. I wouldn't be at all surprised if it fails.

Financial service providers will also need government approval to administer something that the government considers to be a financial benchmark, even though the provider might not want what they administer to be used as a benchmark for others. Someone who fails to get this approval will face five years in jail and a six-figure fine. Once approved, a financial service provider will need to pay the government a fee for the privilege of being regulated. This is akin to Tattslotto needing the approval of Lottoland and needing to pay Lottoland a fee simply because Lottoland chooses to use Tattslotto as a benchmark.

This is regulation gone mad. Regulators seem to view financial markets as something they need to control. They reveal a Soviet-style mindset that is not accepted anywhere else in the economy. Part of the reason for this is that no-one has sympathy for financial service providers. Unfortunately, every bit of red tape on financial services reduces the chances of real competition in financial services where small players enter the market to offer better, cheaper services to everyday Australians. Part of the reason regulators get away with Soviet-style regulation of financial markets is that financial markets seem to them to be more complex than other markets. But this complexity is a reason to be particularly worried about regulation, because there is a massive risk that regulators will get it wrong.

The Treasury bills before us today also require an additional commissioner at the Productivity Commission, with experience in dealing with Indigenous communities. I fear that this lends weight to the questionable idea that those suffering disadvantage know how to overcome that disadvantage and that we must not pursue policies that disadvantaged people oppose. I think it more likely that unpopular policy options, like abolishing the Community Development Program that keeps people in squalid, remote communities, offer the best chance for overcoming disadvantage. For this reason, and because we do not need more Soviet-style regulation of financial markets, I oppose these Treasury bills.

Senator KETTER (Queensland—Deputy Opposition Whip in the Senate) (12:11): I rise to support the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017, as indicated by Senator Cameron. Before I go to those comments, I want to address the comments made by Senator Leyonhjelm, because I could not disagree more strongly with the comments that he's made.

When one looks at the attitude of the major banks to this, particularly on the issue of the bank bill swap rate, ASIC has finally got onto the case and has highlighted the fact that there has been a deliberate rigging of a key benchmark rate which sets so much of what goes on in the financial community. We know that the BBSW is one, which links into home mortgages. It also links in as a reference point and sets rates for most business loans, through to personal lending rates. If the banks are manipulating this particular benchmark rate for their own purposes, then this is a very, very significant matter. It's not a question of Soviet-style control; this is a question of addressing a very real matter of public policy. As Senator Cameron has indicated, this is not a victimless act; this is a bank taking advantage of their market power and their ability to manipulate rates for their own purposes.

We look at the ASIC action in respect of the Commonwealth Bank and we know that there are emails which show communication between the CBA's head of swaps and the CBA Treasury official. The email to the swaps dealer said: 'I think it would be in the bank's interest if you didn't borrow three months' bills on the 15th. We have almost $5 billion setting on that date.' There should have been Chinese walls in place between the different parts of the bank, but those did not exist. It is very clear, in my view, that these are examples of deliberate manipulation.

It's interesting to note that we have just seen reports that mortgage rates are in fact rising without the RBA doing anything about interest rates. We've had the news that Suncorp will lift its owner-occupier mortgage rate by 0.05 percentage points to a standard rate of 5.6 per cent. The article that I'm referring to is by Mr Mata, dated 27 March. It indicates that the size of the lift is not the impressive part of this piece of information; it's the reason for the lift that is important. Mr Carter, the CEO, Banking and Wealth, at Suncorp, said that the decision to hike rates was based on the increasing costs of funding, the costs associated with regulatory change and the US interest rate hikes. So, they've seen higher interest costs for wholesale funding. As I've said, this is not a victimless crime or an abstract matter; this is a matter where our regulators have a legitimate role to step in and stop the sort of manipulation that we're seeing. As a member of the Parliamentary Joint Committee on Corporations and Financial Services and as chair of the Senate Economics References Committee, I've had the opportunity to speak with ASIC on a regular basis and I've seen a lift in the performance of ASIC in recent times. I welcome their activity in pursuing the major banks in respect of this matter, because it seems that all four major banks were engaged in this type of activity.

I can recall the scandal in London a few years ago with the LIBOR—a similar benchmark rate. We saw examples of the manipulation of that particular benchmark rate, and we were told that that type of thing couldn't happen in Australia to the BBSW. However, unfortunately, it has come to pass, or certainly it's been alleged that that is the case. I note that ASIC has been able to settle matters against two of the banks, and I believe that there are ongoing matters that are being pursued. This is not a victimless crime; this is an area where we do need to have proper intervention by the regulators to address these issues. If there's one action by the banks which, to me, justified the royal commission, it is the manipulation of the BBSW. It shows that the culture within the banks is one where they are open to doing this sort of thing. It's quite clear that their culture dictates that, if there is an opportunity to do something, they will take that opportunity, whatever the consequences to others in the Australian community, so I do welcome ASIC's intervention.

It is also to the government's credit that they are looking at increasing the penalties in relation to this matter, so that the manipulation of all financial benchmarks used in Australia will be a specific criminal offence and subject to the penalties that others have talked about. A body corporate will be liable to fines of up to the greater of $9.45 million, which is 45,000 penalty units, or three times any benefit from the manipulation or 10 per cent of the entity's turnover in the previous year. Civil penalties will also apply.

The bills set out a number of the other benchmarks that are to be caught within the regime, and I welcome that. This will give ASIC powers to make rules imposing this regulatory framework, and the framework is based on a set of principles released by the International Organization of Securities Commissions. The Senate economics committee has been looking at this particular issue over a period of time, and it's pleasing to see the government acting on this matter. We commend the bills.

Senator CORMANN (Western Australia—Leader of the Government in the Senate, Minister for Finance, Special Minister of State and Vice-President of the Executive Council) (12:19): I thank all senators who contributed to this debate and commend the bills to the Senate.

Question agreed to.

Bills read a second time.

Senator CORMANN (Western Australia—Leader of the Government in the Senate, Minister for Finance, Special Minister of State and Vice-President of the Executive Council) (12:20): The government opposes item 1 of schedule 2 in the following terms:

(1) Schedule 2, item 1, page 45 (lines 5 to 10), to be opposed.

Schedule 2 to the bill amends the Productivity Commission Act to provide for the appointment of an additional commissioner to oversee the work of the Productivity Commission in relation to the evaluation of policies and programs that have an impact on Indigenous persons. The amendment removes the proposed statutory definition of 'Indigenous person'. In the absence of a statutory definition, the expression 'Indigenous person' is intended as a composite expression to encompass Aboriginal persons and Torres Strait Islanders. The intention is that this expression takes its ordinary meaning. Based on case law, the ordinary meaning of an 'Indigenous person' is understood, as also outlined by Senator Cameron in his contribution, to be a person who is of Aboriginal or Torres Strait Islander descent who identifies as being of Aboriginal or Torres Strait Islander descent and who is accepted as such by the Aboriginal or Torres Strait Islander community with which the person identifies. I commend the amendment to the Senate.

Senator CAMERON (New South Wales) (12:21): Labor will support the amendment. In the legislation as originally presented, the definition of 'Indigenous person' was based on race and descent rather than the standard definition based on the three-part definition of descent, identification and acceptance in the community. According to the Australian Bureau of Statistics and the Australian Law Reform Commission, amongst others, the most widely adopted definition of 'Aboriginal or Torres Strait Islander', the Commonwealth working definition, is: 'An Aboriginal or Torres Strait Islander is a person of Aboriginal or Torres Strait Islander descent who identifies as being of Aboriginal or Torres Strait Islander origin and who is accepted as such by the community with which the person associates.' In fact, the descent-identification-acceptance definition is the very one used by Commonwealth departments in practice. It echoes Justice Gerard Brennan's words from the 1992 Mabo judgement, which noted indigeneity as being a combination of 'biological descent from Indigenous people and mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority amongst those people'. The three-part definition was also used by the former Aboriginal and Torres Strait Islander Commission, ATSIC, to determine eligibility to vote and stand in elections to ATSIC regional and national councils, and was tested a number of times in the courts when various elections were challenged.

Labor has argued in the Senate Select Committee on Strengthening Multiculturalism's report that it was necessary to move away from race-based terminology in legislation and in policy. Let me read from the Labor senators' additional comments to the Senate multiculturalism report:

1.1   The question of 'race' as a 'concept' and 'term' is used widely in parliamentary language, legislation and in the construction of entities with 'race' as part of their nomenclature. The issue of 'race' is a concern to Labor.

1.2   The use of the term 'race' has the capacity to reinforce negative perceptions of others from different cultures. This matter ought to be seriously considered by us and we ought to consider ways by which the leadership of the parliament could begin to change attitudes around the use of the term race in our multicultural society.

1.3 The Australian Labor Party notes that, in the 2012 Final Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, the Expert Panel proposed the removal of s. 51(26) and s. 25 of the Australian Constitution because of their reliance upon 'race' as an 18th Century concept, and the embedded racist thinking that governs their construction.

1.4 Race is used in other applications and has been the basis or cause of much discrimination in Australia as a consequence. The constitutional changes recommended by the previous Expert Panel … have not been proceeded with so the Australian Constitution remains racist.

It is true that governments of the past, both coalition and Labor, have used the definition as drafted in this legislation. It is part of the Commonwealth legislative drafting guidelines. But, as Labor senators have noted, it is not the 18th century. It's time to demonstrate leadership on how Australia can change attitudes around the use of the term 'race'. It's important for reconciliation, it's important for multiculturalism and it's important for egalitarianism.

I should note that the Treasurer's office engaged in good faith on this matter. Labor approached them shortly after the legislation was introduced. We explained our concerns and proposed an amendment, which was considered. The government, we understand, will now move an amendment to remove the race based definition of Indigeneity in the bill. We will support that amendment. I want to thank the Treasurer's office for engaging on the issue and coming to this workable compromise that will prevent the Productivity Commission measure from any further delay. Should the Senate agree to that amendment, we will not move the amendment circulated on behalf of Senator Dodson proposing to put the three-part definition into the legislation.

I do note that this could well have been resolved months ago had the Prime Minister's office returned Labor's calls. This was a point we made to The Australian a few weeks ago in an article that makes some interesting historical points. Firstly, it noted the words of Justice Brennan that I quoted earlier. Secondly, when detailing Senator Scullion's suggestion that Labor's amendment as circulated would require further consultation, the reporter, Stephen Fitzpatrick, wrote:

Asking an actual indigenous Australian for legislative advice? Well, there's a ruling on that, too. In a 1998 Federal Court case on indigenous identity, Justice Ron Merkel said it was a shame the matter had been "left by a parliament that is not representative of Aboriginal people to be determined by a court which is also not representative of Aboriginal people". Perhaps one day, he mused, such a ruling "might be made by independently constituted bodies or tribunals which are representative of Aboriginal people".

It is issues like this one that underscore the imperative for the government to listen to and embrace the Uluru Statement from the Heart. As opposition leader Bill Shorten said in response to the Closing the Gap report, we have to:

… include a meaningful say for the First Australians in the decisions that affect their lives—a Voice to parliament.

Labor will legislate one should we win government. The Prime Minister has ruled the voice out.

It appears the Prime Minister is also reluctant to accept Labor's amendments to move away from race based definitions in legislation. We have consulted on this issue. Labor's Aboriginal and Torres Strait Islander caucus was attuned to the issue and sought expert opinion. The use of Labor's proposed definition is not unprecedented. Although Commonwealth legislation has used the standard definition, the New South Wales Aboriginal Land Rights Act 1983 defines 'Aboriginal person' as such—and I quote:

Aboriginal person means a person who:

(a) is a member of the Aboriginal race of Australia, and

(b) identifies as an Aboriginal person, and

(c) is accepted by the Aboriginal community as an Aboriginal person.

The government claims the three-part definition will cause constitutional issues. Those we have consulted said this is a shaky claim. The three-part definition was upheld by the High Court as giving meaning to the expression 'Aboriginal race' within section 51(xxvi) of the Constitution by Justice Deane in the Commonwealth of Australia v Tasmania (1983) 158 CLR 1.

If a constitutional concern was present, it surely would have been tested by now. Constitutional lawyer Professor Megan Davis has been commenting on this matter publicly over the last week, in particular in response to the story in The Australian. Professor Davis's concerns are about the use of the two-part race based definition in this legislation and how such race based definitions deny Indigenous communities sovereignty of their own identity, not about a constitutional challenge. Nonetheless, the amendment put forward by the government is a workable compromise that presents the race based definition being used in this piece of legislation.

We will support this amendment, but what we want to indicate clearly is that the Aboriginal community have indicated that they want a voice. We should be listening to that position. We should be providing a voice to Aboriginal communities around this country. The Uluru statement is extremely important. The Uluru statement is something that was subject to detailed consideration by Indigenous Australians over a period of time. Many points of view were put, and they've come to the view that their voice should be in parliament. As I've indicated, we—I think belatedly, as has been the want of parliaments over generations in this country—now need to deal with this issue.

To have a commissioner for Indigenous issues in the Productivity Commission is an important step forward. I'm not a great fan of the Productivity Commission. The Productivity Commission gets many things wrong, but it gets some things right. What it needs is an Indigenous voice to instruct the Productivity Commission about what the challenges are that Indigenous communities face in this country. As shadow minister for housing and homelessness, I talk to many Australians about housing and homelessness issues. I've talked to Australians in regional Australia and I've talked to them in the cities. There are huge problems of housing and homelessness in this country, but when you look at the problems faced by Indigenous Australians in remote and regional Australia, they are massively greater than the problems faced by other Australians. These are issues that the Productivity Commission—who are there to advise government on productivity issues, but do also, from time to time, dip their toe into social issues—needs to be aware of. Having an Indigenous commissioner with knowledge and understanding of Indigenous issues is the right thing to do.

I completely reject what Senator Leyonhjelm has put, that this is an unwarranted burden. That is white fella talk of the worst kind. Why would an Indigenous person in the Productivity Commission be, as Senator Leyonhjelm has argued, an unwarranted burden and unwarranted red tape? This goes back to the worst aspects of issues in this country that treated Aboriginal people as second-class citizens. They are entitled to have a voice in all areas of the Australian community. They are the original inhabitants of this country and they are entitled to have their voice heard. I completely reject the nonsense that we heard from Senator Leyonhjelm about this being unwarranted red tape and a burden on the Productivity Commission. I think the Productivity Commission has been a burden on progress in this country for a period of time—that might be the problem—but you don't solve that by rejecting an Indigenous commissioner in the Productivity Commission.

And Senator Leyonhjelm argued that to keep the banks honest is outrageous—that to demand, through legislation and regulation, that the banks do the right thing by Australians is outrageous. That demonstrates how out of touch Senator Leyonhjelm is about the issues that concern Australians in this country. He talked about ensuring that the banks do the right thing as being 'Soviet-style intervention'. That shows you how out of touch Senator Leyonhjelm is. (Time expired)

Senator SIEWERT (Western Australia—Australian Greens Whip) (12:36): I would like to make a relatively short contribution to this debate. I want to put it on the record that the Australian Greens support the provisions of the bill relating to the Productivity Commission Act 1998—those contained in schedule 2. We strongly support the appointment of another commissioner to the Productivity Commission to oversee its work in relation to the evaluation of policies and programs that affect Aboriginal and Torres Strait Islander people. Also, we understand the need for at least one commissioner of the Productivity Commission to have extensive skills and expertise in dealing with policies and programs that impact Aboriginal and Torres Strait Islander peoples and to have experience in dealing with Aboriginal and Torres Strait Islander communities. That is absolutely critical if we are going to address the issues that significantly impact Aboriginal and Torres Strait Islander peoples and their communities that are the underlying causes of disadvantage.

We were going to indicate our support for the ALP's amendments to change the definition of 'indigenous person'. But, now that the government has brought in their amendment, we will be supporting the government's amendment. We were deeply concerned that we were going with the old race-based definition of 'indigenous person' which was used in section 3 of the bill. We are glad to see that the government is now moving an amendment to at least partly deal with that issue. We do support the three-part definition that is most commonly used now. As I understand it, Aboriginal communities, certainly the ones I have spoken to—and people are probably aware that I have extensive consultation processes with Aboriginal and Torres Strait Islander communities—support the three-part definition. That definition involves Aboriginal descent, self-identification as an Aboriginal person and acceptance by the community. We understand that this is the definition that is accepted by the Treasurer's office but not by the Prime Minister's office—that is, that you are accepted as an Indigenous person by the Aboriginal community. That is the definition that I understand the Treasurer's office has been using and, as I said, it is the definition that a lot of Aboriginal organisations and communities use. We are pleased to see that the old definition has been removed, so we will be supporting that amendment. And we would have expressed strong support for the ALP's amendment had there been a need to move that amendment. Having the commissioner with extensive skills and experience in dealing with policies and programs that impact Aboriginal and Torres Strait Islander peoples and their communities is a really important change and we support that.

Senator HANSON (Queensland) (12:39): I'd like to ask Senator Cameron: could he define what he classifies as the definition of 'Indigenous' in their bill—the wording they want.

Senator CAMERON (New South Wales) (12:40): My definition of 'Indigenous' will certainly be much better than the way you have ever dealt with Indigenous people. Your behaviour on Indigenous people when you first came to this parliament was absolutely outrageous.

The TEMPORARY CHAIR ( Senator Whish-Wilson ): Senator Hanson on a point of order.

Senator Hanson: Senator Cameron is not answering the question that I've asked.

The TEMPORARY CHAIR: That's not a point of order, Senator.

Senator Hanson: Ridicule is not the answer that I'm looking for.

The TEMPORARY CHAIR: Please take your seat. Senator Cameron, is that all you have to add?

Senator CAMERON: No. I indicated earlier that Labor is of the view that there is a three-point approach, the same as the Greens. Senator Hanson, we understand it's a person of Aboriginal or Torres Strait Islander descent, it's a person who identifies as being of Aboriginal or Torres Strait Islander origin and has been accepted as such by the community with which the person associates. If you had ever given respect to Aboriginals, you would have understood this.

Senator HANSON (Queensland) (12:41): I ask, then: if you are not Indigenous under your definition and you marry someone, does that give you the right to call yourself 'Indigenous', only through marriage?

Senator CAMERON (New South Wales) (12:41): I knew Senator Hanson couldn't be on her feet for too long without trying to make some racist comment in this place. I'm not going to dignify that with an answer, but I have to say to you: you should actually try to engage with Indigenous people in this country. You started your parliamentary career attacking Indigenous people, you then moved on to Asians and you then moved on to Islam. You just don't get it, do you? People are entitled to have a life with dignity in this country and not be attacked by people like you. I just want to go on with the issue of indigeneity. I want to ask Senator Cormann a number of questions on that. Senator Cormann, who did you consult with when you came up with the definition of indigeneity?

Senator CORMANN (Western Australia—Leader of the Government in the Senate, Minister for Finance, Special Minister of State and Vice-President of the Executive Council) (12:43): As you know, I represent the Treasurer in this chamber. This is not something that I have had carriage of on a day-to-day basis, but I note that there is universal support across the chamber for the definition as proposed, consistent with the government's amendment.

Senator CAMERON (New South Wales) (12:43): Thanks for that. Senator Cormann, when did Senator Scullion become involved in the discussions?

Senator CORMANN (Western Australia—Leader of the Government in the Senate, Minister for Finance, Special Minister of State and Vice-President of the Executive Council) (12:43): I would have to take that on notice.

Senator CAMERON (New South Wales) (12:43): Has Senator Scullion or has the government ever considered an omnibus bill to fix this problem across all legislation in parliament?

Senator CORMANN: That's not a matter that is related to this bill.

Senator CAMERON: It's a matter that we will end up having to deal with whenever we stand up, and the government will then have to scramble to get a proper definition of 'Indigenous'. I'm of the view that, whether or not the minister thinks this is an issue for this bill, it is a fundamental issue for this bill. All I'm asking—and I'm asking politely—is for a sensible response, not for the minister to just stand up and sit down and treat it with disrespect. This is an issue that will come up time and time again when we're dealing with issues that engage Indigenous rights. Why can't the government look at an omnibus bill to solve this problem so we don't have another debate every time there's a bill before—

Progress reported.

Senator BUSHBY (Tasmania—Chief Government Whip in the Senate) (15:38): I present the fourth report of 2018 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. 4 of 2018

1. The committee met in private session on Tuesday, 27 March 2018 at 7.30 PM.

2. The committee recommends that—

(a) contingent upon introduction in the House of Representatives, the provisions of the Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018; and the Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018 and Aboriginal and Torres Strait Islander Land and Sea Future Fund (Consequential Amendments) Bill 2018 be referred immediately to the Finance and Public Administration Legislation Committee for inquiry and report by 7 May 2018 (see appendix 1 for a statement of reasons for referral);

(b) the provisions of the Air Services Amendment Bill 2018 be referred immediately to the Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 25 June 2018 (see appendix 2 for a statement of reasons for referral);

(c) contingent upon introduction in the House of Representatives, the provisions of the National Consumer Credit Protection Amendment (Mandatory Comprehensive Credit Reporting) Bill 2018 be referred immediately to the Economics Legislation Committee for inquiry and report by 28 May 2018 (see appendix 3 for a statement of reasons for referral);

(d) the provisions of the Road Vehicle Standards Bill 2018, Road Vehicle Standards (Consequential and Transitional Provisions) Bill 2018, Road Vehicle Standards Charges (Imposition - General) Bill 2018, Road Vehicle Standards Charges (Imposition - Customs) Bill 2018, and Road Vehicle Standards Charges (Imposition - Excise) Bill 201 be referred immediately to the Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 7 May 2018 (see appendix 4 for a statement of reasons for referral); and

(e) the provisions of the Social Services Legislation Amendment (Encouraging Self-sufficiency for Newly Arrived Migrants) Bill 2018 be referred immediately to the Community Affairs Legislation Committee for inquiry and report by 4 May 2018 (see appendix 5 for a statement of reasons for referral).

3. The committee recommends that the following bills not be referred to committees:

Treasury Laws Amendment (ASIC Governance) Bill 2018.

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

Australian Astronomical Observatory (Transition) Bill 2018

Australian Human Rights Commission Repeal (Duplication Removal) Bill 2018

Australian Institute of Health and Welfare Amendment Bill 2018

Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018

Commerce (Trade Descriptions) Amendment Bill 2018

Corporations Amendment (Asia Region Funds Passport) Bill 2018

Customs Amendment (Illicit Tobacco Offences) Bill 2018

Education and Other Legislation Amendment (VET Student Loan Debt Separation) Bill 2018

Student Loans (Overseas Debtors Repayment Levy) Amendment Bill 2018

Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018

Interactive Gambling Amendment (Lottery Betting) Bill 2018

Interstate Road Transport Legislation (Repeal) Bill 2018

Marine Safety (Domestic Commercial Vessel) Levy Bill 2018

Marine Safety (Domestic Commercial Vessel) Levy Collection Bill 2018 Marine Safety (Domestic Commercial Vessel) Levy (Consequential Amendments) Bill 2018

Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Bill 2018

Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2018

Primary Industries Levies and Charges Collection Amendment Bill 2018

Private Health Insurance Legislation Amendment Bill Medicare Levy Amendment (Excess Levels for Private Health Insurance Policies) Bill 2018 A New Tax System (Medicare Levy Surcharge—Fringe Benefits) Amendment (Excess Levels for Private Health Insurance Policies) Bill 2018

Public Sector Superannuation Legislation Amendment Bill 2018

Social Services Legislation Amendment (Payments for Carers) Bill 2018

Statute Update (Autumn 2018) Bill 2018

Treasury Laws Amendment (2018 Measures No. 4) Bill 2018

Treasury Laws Amendment (Australian Consumer Law Review) Bill 2018

Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018

Treasury Laws Amendment (OECD Multilateral Instrument) Bill 2018

Treasury Laws Amendment (Tax Integrity and Other Measures) Bill 2018

Underwater Cultural Heritage Bill 2018

Underwater Cultural Heritage (Consequential and Transitional Provisions) Bill 2018.

(David Bushby)

Chair

28 March 2018

Appendix 1

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bills:

Aboriginal and Torres Strait Islander Amendment (Indigenous L and Corporation) Bill 2018 Aboriginal and Torres Strait Islander land and Sea Future Fund Bill 2018

Aboriginal and Torres Strait Islander land and Sea Future Fund (Consequential Amendments) Bill 2018

Reasons for referral/principal issues for consideration:

These bills will have profound impacts on the role and governance of the Indigenous Land Corporation, and should be properly scrutinised by Indigenous organisations and other interested parties.

Possible submissions or evidence from:

Northern Land Council

Central Land Council

Tiwi Islands Land Council

Kimberley Land Council

ILC

IBA

Cape York Land Council

Torres Strait Regional Authority

Anindilyakwa Land Council

Committee to which bill is to be referred :

Senate Finance and Public Administration Legislation Committee

Possible hearing date(s):

To be determined by the committee

Possible reporting date: 10 May 2018

Appendix 2

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Air Services Amendment Bill 2018

Reasons for referral/principal issues for con siderat ion:

Canvassing affected community and stakeholder views on the bill's provisions, including community rights and consultation on issues related to aircraft noise, the establishment of an independent Community Aviation Advocate and an independent Aircraft Noise Ombudsman.

Possible submissions or evidence from:

Residents and communities affected by acute aircraft noise Agencies and authorities responsible for flight path management Local councils in affected areas

Committee to which bill is to be referred: Regional and Rural Affairs and Transport Possible hearing date(s): May/early June

Possible reporting date: 25 June 2018

Appendix 3

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

National Consumer Credit Protection Amendment (Mandatory Comprehensive Credit Reporting) Bill

Reasons for referral/principal issues for consideration:

Scrutinise provisions regarding data privacy

Scrutinise consumer rights regarding credit reports

Scrutinise how hardship provisions will operate

Possible submissions or evidence from:

Banks (e.g. ABA)

Credit reporting providers (e.g. Equifax)

Consumer groups (e.g. Consumer Act ion Law Centre)

Committee to which bill is to be referred: Senate Economics Legislation Committee

Possible hearing date(s): To be determined by Committee

Possible reporting date: Monday, 18 June 2018

Appendix4

SELECTION OF BILLS COMMITTEE

Proposal to ref er a bill to a co mmitt ee

Name of bill:

Road Vehicle Standards Bill 2018

Road Vehicle Standards (Consequential and Transitional Provisions) Bill 2018

Road Vehicle Standards Charges (Imposition-General) Bill 2018

Road Vehicle Standards Charges (Imposition-Customs) Bill 2018

Road Vehicle Standards Charges (Imposition-Excise) Bill 2018

Reasons for referral/ principal issues for consideration:

Risk to Australian jobs due to falling demand for expensive conversions of campers from regular vehicles and the loss of potentially all compliance checks to overseas workshops

Risk of noncompliance with Australian road safety, enviro and anti-theft standards with rogue o/s operators who are much harder to audit.

Possible submissions or evidence from:

Australian Automobile Association (AAA)

Caravan Industry Association of Australia Ltd

Federal Chamber of Automotive Industries (FCAI)

Australian Automotive Aftermarket Association (AAAA)

Registered Automotive Workshops Scheme (RAWS)

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:

7 May 2018

Appendix5

SELECTION OF BILLS COMMITTEE

Proposal to refer a bill to a committee

Name of bill:

Social Services Legislation Amendment (Encouraging Self-sufficiency for Newly Arrived Migrants) Bill 2018

Reasons for referral/principal issues for consideration:

Impact on newly arrived migrants

Possible submissions or evidence from:

Australian Human Rights Commission, ACOSS, National Social Security Rights Network, Refugee Council of Australia, Asylum Seeker Resource Centre, Refugee Legal

Committee to which bill is to be referred : Community Affairs Legislation Committee

Possible hearing date(s):

Possible reporting date: 9 May 2018

Senator BUSHBY: I move:

That the report be adopted.

Question agreed to.

Senator GRIFF (South Australia) (15:40): At the request of Senator Patrick, I move:

That the following matter be referred to the Foreign Affairs, Defence and Trade References Committee for inquiry and report by 18 September 2018:

   The proposed Comprehensive and Progressive Agreement for Trans-Pacific Partnership, with particular reference to:

(a) Australia's economy and trade;

(b) Australia's domestic labour market testing obligations and laws regarding wages, conditions and entitlements of Australian workers and temporary work visa holders;

(c) Australian investment;

(d) the effect of Investor-State Dispute Settlement provisions;

(e) Australia's health, environmental, social and cultural policies, including regulation of essential services;

(f) rights for consumers; and

(g) any other related matters.

Senator McGRATH (Queensland—Assistant Minister to the Prime Minister) (15:40): I seek leave to make a short statement.

The DEPUTY PRESIDENT: Leave is granted for one minute.

Senator McGRATH: The government does not consider this reference to be necessary. When the TPP-11 treaty was tabled in parliament on 26 March 2018, it was accompanied by a national interest analysis that addressed issues identified in the proposed terms of reference. The Joint Standing Committee on Treaties examined the original Trans-Pacific Partnership agreement and recommended that Australia ratify the treaty in its report of 30 November 2016. The TPP-11 has been referred to the Joint Standing Committee on Treaties, whose thorough examination will consider all relevant issues, including those in the proposed terms of reference.

Question agreed to.

Senator URQUHART (Tasmania—Opposition Whip in the Senate) (15:41): At the request of Senator Brown, I move:

That there be laid on the table by the Minister for Finance, by no later than 5 pm on 28 March 2018:

(a) all correspondence between the Minister for Finance and the Minister for Agriculture and Water Resources relating to the Australian Pesticides and Veterinary Medicines Authority (APVMA) Digital Strategy; and

(b) a copy of the APVMA Digital Strategy.

Question agreed to.

Senator DI NATALE (Victoria—Leader of the Australian Greens) (15:51): I move:

That the time for the presentation of the report of the Select Committee into the Political Influence of Donations be extended to 10 May 2018.

Question agreed to.

Senator JACINTA COLLINS (Victoria—Acting Manager of Opposition Business in the Senate) (16:26): I present the 168th report of the Standing Committee of Privileges entitled Parliamentary privilege and the use of intrusive powers, and I move:

That the report be adopted.

The Privileges Committee has reported on the inquiry referred to it on 28 November 2016 into the intersection between parliamentary privilege and the use of intrusive powers by law enforcement and intelligence agencies. At the time the committee received this reference, it was conducting another inquiry into claims of parliamentary privilege over documents seized from a senator's office and the home of a staff member. The committee was also examining a possible contempt which had arisen in the execution of a search warrant. These are—and indeed were—very important matters and subject of a previous report of the committee.

During this inquiry, the committee considered the powers that allow access to telecommunications data or metadata as well as other intrusive powers which enable agencies to, for example, enter and search premises and seize evidential material with a search warrant, intercept live communications and conduct other electronic surveillance, and access stored and other communications and data. The committee also examined the oversight mechanisms established to ensure that such powers are exercised properly and whether the agencies using those powers are maintaining records in accordance with the law. Key questions included: what, if any, recognition is given to the work of parliamentarians, and whether claims of parliamentary privilege could be made, and, if so, how they could be resolved?

Disturbingly, the evidence revealed no consideration of how questions of parliamentary privilege may be dealt with when intrusive powers are used, whether covert or not. In fact, the case presented was that the covert nature of intrusive powers meant that questions of parliamentary privilege were not considered to be relevant. The thinking seems to be that what is not seen or heard cannot possibly give rise to an improper interference with the work of the parliament and, therefore, a possible contempt. The Privileges Committee is concerned that this stems from the view that parliamentary privilege is limited simply to the 'use' immunity, which guarantees that the testimony of a witness will not be used against them as evidence in a court, rather than the clearly established systems of powers and immunities that the Commonwealth parliament inherited from the House of Commons in 1901.

Law enforcement and intelligence agencies shared with the committee the importance of intrusive powers to their investigatory work and the need to preserve the flexibility and efficacy of their investigations. The committee acknowledged that.

There was also the suggestion that parliamentarians not be considered either above the law or immunised from the attention of foreign powers. The committee notes that the inquiry was not a reference to expand the powers and immunities of the parliament, which are jointly referred to as parliamentary privilege, but the committee did consider the purpose of parliamentary privilege, which is to enable the parliament to effectively carry out its functions. In the words of Odgers' Australian Senate Practice:

The primary functions of the Senate are to inquire, to debate and to legislate, and any analysis of parliamentary privilege must be related to the way in which it assists and protects those functions.

While the Australian Federal Police expressed some scepticism regarding the potential for its exercise of intrusive powers to have a chilling effect on the work of the parliament, the President of the New South Wales Legislative Council submitted that there was good cause to believe that any such covert powers had the potential to curtail the free and ready flow of information to members and the issues of privilege that may arise. The Australian Federal Police also argued that its use of covert intrusive powers is subject to robust oversight and accountability mechanisms, including external scrutiny by the Commonwealth Ombudsman, but the Ombudsman advised that it does not consider the implications of parliamentary privilege in performing its statutory compliance audits of law enforcement agencies.

The committee concluded that the lawful use of intrusive powers can have a chilling effect on the work of this parliament. Parliamentary privilege does not diminish because of the mechanism used to access material. How material related to the work of a parliamentarian is accessed should not determine whether parliamentary privilege exists. It is clear to the committee that this view is not held by those involved in using intrusive powers, whether covertly or otherwise, and so the Privileges Committee, therefore, examined possible remedies to this problem.

The committee sought a clear process for claims of parliamentary privilege to be made and assessed when such powers are used while at the same time allowing the investigation of serious criminal and intelligence matters to continue unimpeded. The committee examined the existing 2005 memorandum of understanding between the executive and the parliament, and the national guideline it underpins. These documents set out the processes to be followed by the Australian Federal Police when it seeks to execute a search warrant on premises occupied or used by a parliamentarian, including the Parliament House office, electorate office and residence.

The committee concluded that the memorandum of understanding provides a useful template and recommends that the Presiding Officers, in consultation with the executive, develop extra protocols that will set out agreed processes to be followed by law enforcement and intelligence agencies when exercising intrusive and other investigative powers. The effect of the motion I have moved today is for the Senate to adopt the committee's recommendations.

The committee's consideration of the memorandum of understanding also proved useful on another level, as it explored the issue of third-party assistance in the execution of search warrants. This was one amongst many new developments in this space. The Australian Federal Police gave evidence that the recent experience where a third party assisted in the execution of a search warrant, and the possible improper interference that occurred, was because the national guideline had not envisaged that such assistance might occur. The Australian Federal Police supported updating the national guideline to address the use of constables or third parties assisting in the execution of search warrants. The committee agrees and suggests that, until the necessary consultations to amend the national guideline can occur, the matter be dealt with administratively. If no other senator wishes to speak at this time, I seek leave to continue my remarks later.

Leave granted; debate adjourned.

Senator SIEWERT (Western Australia—Australian Greens Whip) (16:34): I present the report of the Senate Community Affairs References Committee on transvaginal mesh implants, together with the Hansard record of proceedings and documents presented to the committee. I move:

That the Senate take note of the report.

This report, entitled Number of women in Australia who have had transvaginal mesh implants and related matters, is about the women who have been affected by transvaginal mesh implants. Let me say at the outset that not every woman who has had a transvaginal mesh implant has had the severe consequences that a large number of women we heard about have had—I acknowledge that—but, for the women who have been affected, it has had life-changing and lifelong consequences. I want to say right from the start: it's those women who are at the heart of this report. Those women have suffered for too long. They have been ignored and they have been treated badly. It is essential that we acknowledge that they have been treated appallingly. They have suffered for so long without being heard. They have not been believed. In some cases, they've been belittled. They have been ignored. Well, for no longer shall they be ignored.

I would particularly like to thank all the women who have shared their experiences. Sometimes they felt embarrassment and shame. They articulated this to us. I thank them from the bottom of my heart for sharing their experiences with us. I'd like to share a quote from a woman who did not want to be named, but you'll find this quote in the report:

For those reading this they are words on paper or on an electronic device, but for those of us living with mesh, and especially those that have suffered complications, they aren't words, but physical pain, emotional trauma, fear, embarrassment, ridicule, shame, disbelief, depression, anxiety, derision, and aloneness.

For me, having heard the evidence we received, that sums it up. I hope that we never have to have another inquiry where we see such suffering from the witnesses—women who literally could not sit down for very long. They wanted to be at the hearings for the whole day to bear witness to what others have experienced and to give us their evidence. Many of them could not sit down for very long, so we saw them having to get up and sometimes leaning against a wall. Some had to bring in special cushions to sit on during the hearing. I never want to see women going through that experience again.

I'd like to acknowledge Senator Hinch, who worked so hard on this, and the other senators who also worked so hard on achieving a consensus report and the 13 recommendations that we made. We want to see them implemented so that other women don't have to go through what so many have had to go through. Women who have had adverse outcomes from these procedures, with devices that were put in for stress urinary incontinence or for pelvic organ prolapse, commonly known as POP, have been failed in a monumental way by the system and, I've got to say, by certain people in the medical profession whom they trusted and thought would give them the best advice possible and would carry out the procedure in a way that was world's best practice. It is my belief that the medical profession needs to acknowledge that some mistakes were made and that there were problems. That was acknowledged during the inquiry.

But I must say, as an aside, that an email I got recently because of a comment I had made about some people in the medical profession in relation to mesh indicates to me that we still have some way to go for some people in the medical profession to acknowledge that mistakes do happen and were made here. The committee recommends that:

… treatment guidelines developed by the Australian Commission on Safety and Quality in Health Care should clearly indicate that—

and this is the really important bit—

transvaginal mesh implantation should only be undertaken with fully informed consent and as a last resort when other treatment options have been properly considered and determined unsuitable.

In some instances where we were told that these sorts of implants should be used as a last resort, we had clear evidence that that in fact did not happen.

During the inquiry, the TGA made some very important announcements and decisions relating to these transvaginal mesh implants. They determined that devices should not be used for POP, pelvic organ prolapse, that the use of these procedures should be limited and that it should be ensured that patients had patient cards for devices. One of the issues that we were supposed to deal with through this inquiry was to find out exactly how many women in Australia have had transvaginal mesh implants and how many had had adverse consequences. But we can't answer that question, because the data hasn't been collected. We can't tell you exactly how many women have had these implants and how many women have had adverse consequences.

As I said, the committee made 13 recommendations, including recommendations that relate to adverse event reporting. The reason that we can't tell you how many women have had adverse consequences is that they don't collect the data and the definition of 'adverse consequences' is open to interpretation. There's no mandatory reporting. These are the sorts of issues that we say need to be addressed. We also say that there needs to be a registry of high-risk devices. While there's a specific registry of implantable devices, there's not a registry for transvaginal mesh, which is now a high-risk device. We also had issues around the training of doctors and surgeons that were doing the implant surgery and the credentialing in hospitals of the doctors and surgeons implanting such devices. We need to address that particular issue. There also needs to be an audit done of how many devices are out there.

Before I finish, I would like to again acknowledge the women who told us of their personal experiences, women who have been living with the pain and the consequences of the implantation of these devices. A number of women expressed very strongly the impact that this device and having this surgery have had on them and their families—for example, the splitting up of families and the loss of partners who just couldn't cope with the stress and the impact it has had. This should never have happened. We need to fix it. We need to provide support for these women who have been affected. It's going to affect some women for the rest of their lives, and that support needs to be given.

I'd also like to thank the secretariat who, as usual in our committee, have gone above and beyond. They have produced an excellent report and they've done excellent work in circumstances that were, in some instances, highly emotional, in making sure that we honoured the women who gave us their evidence and very personal accounts in very trying circumstances. I thank them for sharing their experiences.

Senator HINCH (Victoria) (16:44): Fifteen months ago, in November 2016, in one of my first adjournment speeches in this place, I talked about a procedure that many people in here, and millions of people out there, had never heard of. Even the few in the media who had were embarrassed to talk about it or report it, because it included the word 'vagina', as in transvaginal mesh. It was so non-U and so non-PC to talk about it that, when I submitted a notice of motion to the Senate for this public inquiry, another senator suggested I censor the term 'transvaginal' and call it 'pelvic' mesh—more palatable, apparently.

With public hearings all around the country last year, and with valuable contributions from the UK and New Zealand, we now know a heck of a lot more about this scandal. I think today, as we table our committee's long-anticipated report, it is worthwhile going back to November 2016 and some of the things that I said back then. I said:

Back in the 1950s and 1960s there was a morning sickness pill that women around the world were innocently taking. And they started giving birth to babies with no arms or legs. After an Australian doctor, William McBride, started making the connection between Thalidomide and deformed babies, drugs like Distaval were taken off the market and a shocked world asked: how could it have gone on so long? How could the drug companies in Australia have known for so many months and put so many pregnancies at risk? How could they put money before morality? Profit before pain? How could our medical authorities and health protection agencies have been so ignorant and so complacent? Thalidomide became a dirty word.

We now have a new four-letter word that's in the same category, a word for something that is not crippling babies but has crippled thousands of mothers both here and overseas—in fact, hundreds of thousands of mothers, we have discovered, around the world, in Australia, in New Zealand, in the United States, in Scotland, in Europe. The word, as you know now, is 'mesh'.

Once again, the drug companies and the so-called watchdogs like the TGA, the Therapeutic Goods Administration, have let victims down and are letting victims down. For about 20 years, this plastic or polypropylene mesh has been permanently embedded as postnatal hammocks, slings, netting, for prolapsed organs and stress incontinence—a so-called miracle treatment for male incontinence too. The mesh is meant to be chemically inert. Before any implanted device gets clearance from the FDA in the US, there must be guarantees that it is inert, is safe, won't change after contact with tissue fluids in the body, won't produce allergic reactions, won't incite inflammation, won't trigger your immune system, won't harbour and breed bacteria, and, crucially, will stay anchored wherever in the body it is installed.

Tragically, painfully, dangerously, transvaginal mesh does not pass those tests. We discovered that at our public hearings in Perth, Canberra, Sydney and Melbourne. To make the nightmare worse, these mesh hammocks are anchored deep in the thigh, the buttocks, the pelvic region, in muscles where nerves grow through the mesh, making it almost impossible to remove when things go wrong—like a wire netting fence getting overgrown with creeper in the backyard. It gets worse, as you will discover if you read our lengthy and comprehensive report. Over time this 'harmless' plastic netting can become brittle and start to break away in shards and splinters that start to float around the body, causing inflammation and excruciating pain. No wonder these slings have been called torture devices. There have been cases where a splinter has pierced a woman's vaginal wall and injured her partner during intercourse, and a large percentage of the relationships of these women have broken down. This was explicitly and starkly illustrated in some of the brave personal stories—mentioned by Senator Siewert—that many victims emotionally outlined to us.

No wonder some of these mesh products have been banned in Scotland and now here in Australia, for some operations, and across the ditch in NZ. No wonder there are nearly 100,000 lawsuits pending in the United States and some lawsuits here. Some crippled Australian women have taken out loans, or increased their mortgage, to cover the $35,000 or $40,000 cost of the removal operation overseas, because no Australian surgeons are really qualified to attempt total removals. I have now met and talked to heaps of women from all over this country who have suffered interminable pain, and physical and mental breakdowns, because of these implants. Some—many—have thought that suicide was the only solution. I hope that our report convinces them that they have been listened to and, more importantly, they have been believed.

It's important to remember: having first been told there was only a one per cent chance of an adverse reaction, they have since been treated like mushrooms: kept in the dark and fed bullshit by doctors, hospital administrators, the drug companies and, sadly, even the TGA. At times, they've almost been convinced to believe that their pain and debilitating conditions were psychosomatic or, some were told, just a way to get more painkillers—and many GPs actually suggested that.

I want to go back to two victims' stories, although there are dozens of excruciating personal horror stories in our report. One is from Caz Chisholm. She started an online support group for transvaginal-mesh-injured women. What triggered my interest back in 2016, when she and Kim Blieschke flew from Perth and Port Pirie to Melbourne to meet me, was this description. She had written to me overnight:

These devices are in a woman's pelvis until she dies! We have been fighting tooth and nail for a suspension on mesh until an investigation is carried out but the doors have been closed on us and we believe that a Senate inquiry is the only way we are going to get to the truth of this situation. Transvaginal mesh damage is a worldwide problem and Australia is lagging in providing the help that women need to get their mesh devices out. There are only a few renowned surgeons in the world who can fully remove them. We need one of the surgeons to come to Australia to remove the devices for the women who are desperate to get them out. The pain is so excruciating for some that suicide has become a normal thought to ease the burden of living with the suffering for the rest of their life.

I can say to Caz: you got your inquiry, and I know this is just the start, not the denouement.

There was this bit, early on, from another victim, Toni Shannon:

I seriously cannot believe that from one innocent minor day surgery and under the trust of surgeon and the experts of the Australian medical system, that I am left with a permanent disability. I am unable to return to work as I cannot sit, stand, walk or drive for more than five minutes without excruciating pain

From the prime of my life I became crippled in less than three months. Thankfully, a world-renowned mesh removal surgeon from the USA removed my faulty and recalled product.

I now have severe incontinence, nevertheless, this is the least of my worries. Worse is that I am made to feel like a criminal by my insurance company because their doctor and our government do not believe that mesh causes these types of injuries. It has left me suicidal and abandoned. In this day and age, and in our country, I can't believe that this is happening.

She asked a question that we have tried to get answers to. That question, from a crippled victim: why would the TGA allow it, why would surgeons implant it and why is a permanent and life-threatening device put into a woman's body for a non-life-threatening problem such as incontinence? The foreign body mesh placed through the vagina cannot be safely removed and it is guaranteed to pick up bacteria, which will fester and create a biofilm, erosion, nerve and organ damage et cetera. She says it's not like a pacemaker, which can be implanted and then easily removed if there's a reaction or a fault. She says:

None of us were warned that removal of mesh is pretty much impossible. Few of us were warned that it was polypropylene. None of us were warned that there were over 100,000 legal cases against mesh and warnings throughout the world. None of us were tested for allergy or reaction to polypropylene before surgery. Most of us were only offered mesh as a treatment.

They were offered no alternatives.

The committee heard case histories and about some of the side effects: things like infection, bleeding, painful sexual intercourse, vaginal scarring, prolapse return, sepsis, immune system rejection, urinary problems, chronic pain—it went on and on and on. And there is the pain of daily living: stabbing pains when sitting on the toilet; stabbing pains when crawling into bed, when you're walking, when you're sitting at a desk. It truly is a national disgrace.

I was not exaggerating back in 2016 when I compared transvaginal mesh to thalidomide. This is one of the greatest medical scandals and abuses of mothers in our country's history. I said back then: 'I fervently believe a Senate inquiry is a must. We have to do it.' I thank Senator Siewert and the Community Affairs References Committee for letting me hijack them for this inquiry, and I thank the secretariat for such a comprehensive, if at times frightening, report. Personally, I believe that mesh using polypropylene should be banned for most, if not all, operations like POP and most stress incontinence treatments. At best, it should be used only as a last resort. I know now, after this year-long inquiry, that when I spoke about transvaginal mesh and thalidomide in the same breath in this chamber, I was wrong. Mesh is far, far worse. I seek leave to continue my remarks later.

Leave granted; debate adjourned.

Senator McALLISTER (New South Wales—Deputy Opposition Whip in the Senate) (16:55): At the request of Senator Collins, I present the 169th report of the Committee of Privileges entitled Persons referred to in the Senate: Professor Simon Chapman.

I move:

That the report be adopted.

Question agreed to.