Senator BIRMINGHAM (South Australia—Minister for Trade, Tourism and Investment and Deputy Leader of the Government in the Senate) (09:31): I dealt, at the conclusion of question time yesterday, with the substantive matters in relation to the order passed by the Senate in the motion moved by Senator Hanson. I suspect the bringing forward of the motion and the way in which it was structured were to enable a bit of grandstanding on antitrade rhetoric to occur in the chamber this morning. Sadly, that seems to be a more common occurrence from the crossbench and even from some in the opposition. I say 'sadly' because it is senators choosing to turn a blind eye to the facts, to the evidence, to the history, of the benefits that trade has provided to Australia. It's no accident that Australia has enjoyed 27 years of continuous economic growth. That growth is a function of good policy reforms, from both Liberal-National governments and Labor governments—to be fair and to give credit. We've seen governments of both persuasions open up our economy in a range of ways. Opening it up to provide greater opportunities for trade of goods, services and investment has been a key part of those reforms that have sustained our economic growth and our prosperity as a nation.

Over the past five years, in our term of government, as we have successfully negotiated successive trade agreements to create a more open environment, trade has contributed around one-quarter of the estimated economic growth that we've seen. As a nation, our economic growth leads that of the world's largest economies. It leads the G7. Trade has contributed around one-quarter of that. In 2017-18 we achieved a record level of exports of $401 billion. Importantly—and I really encourage senators to reflect on this point—Australia has achieved a trade surplus every month of this year and for 20 out of the past 23 months. It is often portrayed, by those who want to use antitrade rhetoric, that somehow Australia does poorly, when the truth is quite the opposite. These are not meaningless statistics. They are a demonstration of how it is that increased trade opportunities have contributed to Australia's prosperity and have ensured that, through that prosperity, Australia is one of the best places in the world to live, as the prosperity enables Australians to pursue their ambitions and dreams and gives government the resources to be able to provide essential services. That's why our government has been such a strong supporter and effective deliverer of free and open trade. We know that it provides opportunities that Australian businesses successfully seize and, in doing so, provides more opportunities to Australian families.

We believe in supporting and backing our farmers, our technology companies, our artist, our scientist and our small and large businesses to develop the highest-quality goods and services and to be able to sell those not only in Australia but also in our region and around the world. We don't take a 'little Australia' mentality and believe that we're only fit to be able to compete within some closed shop environment here in Australia. We believe that, as a country, we are actually capable—as we have demonstrated—of competing around the world. That's why today around one in five Australian jobs is dependent upon trade—that is, around 2.2 million Australians. And we know that businesses that export also tend to pay better. On average, wages are an estimated 11½ per cent higher—significantly more.

Australian household incomes are variously estimated to be around $8,500 higher due to trade liberalisation that's been undertaken in Australia since the 1980s. It's no accident that it's been because of our Liberal-National governments; the Howard years delivered the United States trade agreement, and our government has agreements with China, Japan and Korea and did the landmark CPTPP-11. All of them ensured we have more opportunities to sell more goods and services into the world. That's why we continue to fight at the G20, through APEC and at the World Trade Organization for effective global trade rules and we continue to pursue new trade agreements with Europe, Latin America and other regional trading blocs such as the RCEP agreement. Our government has the best, most successful track record of pursuing trade agreements and we will continue to work on doing so.

This motion was sparked by debate about the transparency of how those agreements are brought to force. We have very clear parliamentary processes to ensure thorough scrutiny of and deliberation on free trade agreements before they are ratified. As I outlined to the Senate yesterday, there was a letter that responded to this Senate order on 11 December 2013. It made very clear that the Senate can be assured that, once the text of trade agreements is agreed on between the two parties, but before they are ratified by the Australian government, they will be made public and will be subject to parliamentary scrutiny through the Joint Standing Committee on Treaties. This is consistent with our well-established treaty-making process. Each and every Australian free trade agreement that has come into force since this 2013 motion has gone through this proper parliamentary process, has been referred to JSCOT for inquiry. To ensure thorough scrutiny, agreements are tabled for 20 parliamentary joint sitting days before they're considered by the JSCOT inquiry. Let's again emphasise that point, because there seems to be some suggestions through this process that the text of agreements is withheld or not made public: the text of those agreements is tabled and sits on the table for 20 sitting days before JSCOT makes any determinations.

Of course, parliament can refer enabling legislation—or any other matter, for the point—to other committees for inquiry. By way of example, there was exceptionally broad scrutiny of the TPP. The regulatory impact statement and the accompanying national interest analysis were considered by JSCOT, as is standard practice for every one of our agreements. But they were also considered by the Senate Foreign Affairs, Defence and Trade References Committee and the Senate Standing Committee on Legal and Constitutional Affairs. All of those inquiries were thorough, were public and had the full text of the agreements available to them. Each and every one of those inquiries had that. And each of them provided for the basis upon which, ultimately, binding treaty action was taken.

Senators may also be aware that just recently we sent the Peru-Australia Free Trade Agreement back to JSCOT for a second inquiry, at the request of the Australian Labor Party. The Peru FTA was examined by JSCOT in August and in November of this year. Both times JSCOT has recommended that binding treaty action be taken, but both times JSCOT has had the opportunity with the public text, with the public national interest analysis and with the opportunity through public hearings and publicly accepted submissions to be able to get to the bottom of any issues in relation to those agreements.

Why is it that we adopt this process? We adopt it for transparency and thoroughness. But why is it that we don't say, 'We'll do all of that before the negotiations are settled'? It's because to do it all before the negotiations are settled weakens Australia's negotiating position. It weakens Australia's negotiating position to throw it all open to debate. Of course this parliament, the government, can choose to not ultimately ratify agreements. It happens at times around the world that agreements that are negotiated between two governments do not come into force; that can occur. However, we think that, to get the best possible deal, it's important to be able to conclude those negotiations up-front.

Debate about the process is really a mask or a smokescreen for those who want to debate the merits of more open trade. And we do see—

The DEPUTY PRESIDENT: Minister, please resume your seat. Senator Whish-Wilson.

Senator Whish-Wilson: A point of order: I wonder if you could clarify what the time limits are for this debate, or is there no time limit for an individual contribution?

The DEPUTY PRESIDENT: There's no time limit on the statement, but it is 10 minutes on the debate—for an hour.

Senator Whish-Wilson: Another point of order: I just wonder how long the minister has spoken for, because the clock is on zero.

The DEPUTY PRESIDENT: The minister's statement is unlimited, and then the responses are 10 minutes per senator for an hour. I'm sorry if I wasn't clear. Please continue, Minister.

Senator BIRMINGHAM: Thanks, Deputy President. These questions around transparency are really a smokescreen for those who want to undermine and stand against a more open economy at any price. We see that in many ways from those on the 'lunar Left' and also those on what I'll politely call the 'reminiscent Right', who seem to think that somehow it was a better place decades ago, a perception which is built upon many myths and many untruths, such as the suggestion that somehow our trading relations have hurt employment. If we go back to the start of the 1980s, before Australia pursued the big waves of economic reform, the total number of employed Australians stood at around six million people. Today that's more than 12.6 million people. We've more than doubled employment over that time.

Senator Hanson interjecting—

Senator BIRMINGHAM: I hear one of the 'reminiscent Right' interjecting from the other end of the chamber. Indeed, yes, the population has grown, but the proportion of the working-age population in employment is higher today than it was in the 1980s, Senator Hanson. We've created jobs faster than our population has grown. So that's another of your myths knocked out along the way. And indeed the mix of full-time versus part-time jobs has, contrary to the lies that are told, remained relatively stable during that time.

The DEPUTY PRESIDENT: Minister, please resume your seat. Senator Gallacher.

Senator Gallacher: A point of order with respect to the allegation of lies: that is a generic term. I thought the President was discouraging the use of such allegations.

The DEPUTY PRESIDENT: Thank you, Senator Gallacher. Yes, the President has asked people to be respectful in their language. In the use of that term then, the minister wasn't referring directly to other senators. But I think it's timely to remind all of us that we do want respectful debate. Thank you, Minister.

Senator BIRMINGHAM: Thank you for that reminder, Deputy President. As I was saying, the proportion of full-time and part-time jobs has remained largely stable. Employment growth has managed to outstrip population growth. More Australians are employed and a higher proportion of Australians are employed. Average unemployment, which has stood at around seven per cent over the last four decades, now stands at around five per cent. Some will tell us that we're poorer because of it, and yet GDP per capita, inflation adjusted, has grown significantly: it stood at around US$30,000 equivalent in 1980, it is around US$55,000 equivalent today. Those several decades of economic reform, including more open trading environments, have left us in a world where Australia has a higher proportion of the population employed, has more than doubled the number of jobs that exist across the country and has a higher average per-capita GDP rate.

It's a pity that indeed those on the fringes of politics now seem in some ways to be being joined by some from the Labor Party, because what has occurred, at least over recent decades, is we've had significant bipartisanship in many of these ventures. Bipartisanship during the Hawke and Keating years enabled many of the economic reforms to occur during that time—perhaps slightly less so during the Howard years around some economic reforms—but, ultimately we saw bipartisanship enable a number of trade agreements to come to fruition, and I thank the Labor Party for that over that time.

We do see that 89 per cent of Australian businesses that export indicate that they use our FTAs as a platform for their exports. We appreciate that the Greens have never really understood the benefits of trade, because they'll stand against anything that sounds like it might relate to opportunities for business, ignoring the fact that business creates jobs that pay taxes that sustain our services. And we know that those on the far Right have tended to take a closed-shop mentality and to adopt that little-Australia perspective. They believe that if we could just live within our own contained built-up brick walls around the margins of Australia, we would be a much better place. Instead, of course, we've benefited greatly from being more open. We see the unions seeking to push the Labor Party around. They sought to push Mr Shorten to walk away from the TPP and he said we shouldn't pursue it when Donald Trump walked away, but I thank the Labor Party for the fact that they held their nerve and they ultimately supported the TPP coming to fruition.

We need to be clear that all parts of Australia don't always benefit from every aspect of every agreement. That's why successive governments have supported transition packages industry support, but, ultimately, Australia is better as a result of the collection and the wave of economic reforms, including those trade agreements. Indeed, Senator Hanson's home state of Queensland is also a significant beneficiary. In 2017-18, Queensland's total exports of goods were valued at over $74.2 billion, a rise of 11.5 per cent over the previous year. That was driven significantly by exports of goods to FTA partner countries—those countries with which we have free trade agreements in place. Those exports were valued at $49.7 billion, which is well over half of Queensland's total exports, and the growth rate to those countries was 15.4 per cent, well in excess of the average growth rate. So Queensland exports grew, but they grew faster to countries with whom we have FTAs in place. China, Japan and Korea are critical trading partners and account for more than half of Queensland's total goods exports. Our government has negotiated trade agreements with those three significant markets that lock in exports for significant commodities like coal at zero, enabling us to ensure that we have strong growth.

But it's not just those commodities. We also see many services industries and other goods actually benefiting. Take Russell Mineral Equipment located in Toowoomba, who have benefited clearly from our policies. They design and manufacture minerals processing equipment. They're one of the great examples that show that, although Australia is strong in the mining sector, the mining services companies are also increasingly exporting their goods and skills to the rest of the world. Our FTAs with North Asia have played a key role in Russell Mining Equipment's success according to their CFO. He says:

Having them in place gives us the confidence to invest money into foreign markets and ensures we are protected against risks such as intellectual property theft and copyright.

That's an example of a Toowoomba based business creating more income for Australia and more jobs for Australians by selling their services to the world. Or how about Frosty Boy located in Yatala in Queensland, a manufacturer and distributor of powdered desserts and beverages? In the last 12 months, this Gold Coast based company has grown 30 per cent and now employs around 70 Australians. Its managing director says that exports have played a vital role in the company's growth. He says:

We have not only increased the number of product lines we export, but due to the growth in our exports, we've also invested in new dairy equipment and accessories to increase our production. Our exports now make up 70 per cent of our business. Since 2001, we have seen an average yearly growth of about 17 per cent. It is definitely our exports that have enabled us to achieve this kind of growth.

Or there's OzKleen, located on the Gold Coast. They identify FTAs with North Asia as helping them to expand their business. Their managing director says:

Thanks to the FTAs, we have been able to significantly reduce our landed costs, making our product more price competitive.

In Korea—

They highlight—

this tariff reduction combined with a positive exchange rate has seen the import price of our cleaning products come down by 10.5 per cent, which makes a big difference to the overall price of the product.

That's the point. Those Australian products are landing in Korea at a cheaper price because Korea is no longer applying, effectively, a tax to them, meaning that a Gold Coast business like that is able to better succeed into the future.

I know some will cite manufacturing jobs, which, if you look at ABS data, have been on the increase again recently. One of the reasons, there, is that you see more companies, both domestic and international, investing in Australia in higher technology spaces. Take the Peruvian manufacturing company Vistony. Vistony has indicated that the Peru-Australia agreement will be of 'great value for us as a leader of Peruvian lubricants, as lower tariffs generate greater investment'. Why is that good for Australia? Because that company has indicated that they're setting up operations here in Australia. They will create approximately 200 jobs as a result of doing so. That's another example of where an Australian trade agreement has helped to create more job opportunities.

As others contribute and follow me in this debate, I urge the Senate to be mindful of some of the real facts that sit before us. Fact 1: all our trade agreements and the text around them are published, made public, laid bare and tabled in the parliament before they are ratified and before binding treaty action is taken. Fact 2: they're all assessed by the Joint Standing Committee on Treaties and, frequently, other parliamentary committees as part of that process. Fact 3: the successive decades of economic reform we've had have got Australia to a point where we're enjoying trade surpluses, month after month. I go back to the opening point I made: a trade surplus every month this year and for 20 out of the past 23 months. That's the strength of Australia's trading situation and economic relationship. Fact 4: over those decades of reform, we've seen employment more than double in Australia and participation in the employment market grow far faster than our population has grown. Fact 5: we've seen unemployment rates come down. Fact 6: we've seen average GDP per capita go up.

Australia is better off as a result of the reforms of the last few decades. We're better off as a result of more open engagement with the rest of the world. Our businesses are successfully seizing those business opportunities, are successfully engaging. In doing so, they're creating more business opportunities in Australia, creating more jobs in Australia, creating more opportunities for Australians and their families and that's generating more revenue for our government to provide the services we rely upon, and those who want to undermine that would be undermining Australia's very prosperity.

Senator HANSON (Queensland) (09:53): I move:

That the Senate take note of the explanation.

Former Liberal Prime Minister Malcolm Turnbull called the half a million Australians who voted for One Nation in the last federal election 'dumb'. This assessment of voters is one of the reasons the government ignored the requirement to consult with the Senate in advance of signing the comprehensive and progressive agreement for the Trans Pacific Partnership or TPP-11 on 8 March 2018. The facts are not in dispute. The government did not table the TPP-11 in advance of signing it. The government holds the Senate in contempt by not complying with Senate rules, which require these types of documents to be tabled at least 14 days before signing.

The failure by the Attorney-General to release the full legal advice on Brexit triggered a vote in the British parliament yesterday which found ministers in contempt of the parliament and ordered the immediate publication of the advice. The British government, after the vote, said they would publish the advice. The parallels between the failure of this government to table the TPP-11 and the failure of the British government to table the Brexit advice are obvious. The difference between the two governments is that our government think contempt is a badge of honour while the British government think it's a badge of shame.

The government have told us they will not bend to the will of the Senate and table free trade agreements in advance of signing them. They say they will continue to ignore the will of the Senate and the people of Australia and make the agreements public after they have been signed, leaving no option for those affected but to accept it. Deals done in secret always raise concerns about corruption. Instead of persuading the Senate to change the procedural order of continuing effect 20, the government prefer to treat the Senate as a rubber stamp. Although the government signed up to the TPP-11 in March, it took until October for the government to present the enabling legislation to the Senate. I did not support the TPP-11 enabling legislation in the hope that the government would be unable to complete all the applicable legal procedures necessary for entry into force of the agreement.

I am worried about the TPP-11 free trade agreement because jobs will go overseas and because landmine provisions known as investor-state dispute settlement provisions, or ISDS provisions, remain. The damage these ISDS provisions have on us is illustrated by the Philip Morris case. Philip Morris decided to sue the Australian government after the passage of the Tobacco Plain Packaging Act in 2011. The company could have sued the Australian government in an Australian court, but they thought their chances were better in an international tribunal using international law. Philip Morris looked for a suitable free trade agreement with Australia and then restructured their business to create an overseas parent company in Hong Kong. The government says it won the Philip Morris case, but in fact the case was not heard because the tribunal decided it was an abuse for them to restructure just to sue the Australian government. Challenges to Australia's tobacco packaging policy continue within the World Trade Organization. We should never have allowed the decision of a three-person tribunal operating under international laws to override the High Court of Australia.

One Nation rejects the view of globalists like Malcolm Turnbull who want us to surrender our hard-won freedom to make laws that apply to Australians and those who trade with us. The decision to sign the TPP-11 agreement without complying with Senate order of continuing effect 20 is, in my view, a serious matter. My fellow senators agree with me, because notice of motion 1295, standing in my name, was supported by the Senate yesterday. That motion brought Minister Birmingham here today to explain the government's position. I call on the government to test its public interest immunity argument, and its failure to comply with Senate procedure, before the High Court. It is just wrong that these free trade agreements are not reviewed in the Senate. Some might say it is a waste of money to go to the High Court, but we reportedly spent $50 million on the Philip Morris case, so, frankly, a few thousand dollars is money well spent if we can rid ourselves of the ISDS provisions.

The government has told the Senate the ISDS provisions represent a theoretical risk, but I know of two cases that have been brought against Australia in recent years, including the most recent case involving APR Energy. In 2016, APR Energy advised the government of a dispute under the Australia-United States Free Trade Agreement. The company is suing the Australian government because the assets it leased to an Australian company were repossessed by the ANZ Bank. An international tribunal will be asked to decide if the Australian government is liable for the company's losses pursuant to the provisions of the Personal Property Securities Act 2009. Does this mean that every overseas company that loses money can be compensated by the Australian taxpayer? I warned the parliament in 1998 about multilateral agreements on investment provisions which included the right to sue governments if legislation threatened their interest. No-one took any notice of me, and here we are with ISDS provisions in most free trade agreements acting like landmines just waiting to blow up.

These ISDS provisions expose taxpayers to staggering losses incurred by non-resident foreign-owned companies. Australia is particularly exposed to ISDS losses because of the number of multinational companies operating here. These multinationals can pick and choose from an array of free trade agreements when they want to sue the Australian government. These companies have revenues greater than most countries in the world and deep pockets to fund actions against governments. The provisions that allow foreign-owned multinational companies to sue the Australian government are not in the national interest. Their existence in many agreements, including the TPP-11, may be a factor in the government's unwillingness to reform weak laws that give us payment for our vast reserves of gas in Commonwealth waters. Are the benefits of free-trade agreements which include investor-state dispute settlement provisions worth the risk of being sued in an international tribunal? The answer to that question depends on whether you are a winner or a loser in TPP-11. In my view, the risks in the TPP-11 outweigh the benefits.

New Zealand has side letters voiding the ISDS provisions. So why don't we have the same?

The government has oversold the benefits of the TPP-11. Take for example the claim that our dairy industry will benefit by being given access to the Canadian dairy market. The claim sounds good—until you find out that the 11 Pacific rim countries will collectively be given access to just 3.5 per cent of the Canadian dairy market and that New Zealand, a lower-cost dairy country, is making heavy inroads into the Australian market.

If the government had its way, it would continue to sign free trade agreements without ever consulting the Senate. The opposition voted with the government to pass the enabling TPP-11 legislation, but now, after the horse has bolted, say they will negotiate changes when they form government next year. Labor cannot get the TPP-11 changed. It's pie-in-the-sky fantasy. The ISDS provisions will remain. Jobs will go overseas, and 5,000-plus jobs in Australia will be taken by foreign workers. Their comments are to appease the unions.

The kind of accountability small parties bring to government is a thorn in the side of the two major parties. Increasingly, Australians are voting for small parties in the Senate. This is evidenced by the fact that nearly one in four primary votes were cast for a small party in the 2016 federal election. In my view, the two-party system, where government is formed by one of the two major parties, no longer serves the national interest.

I can assure the people of Australia: I'm here because of no fear or favour. I'm here to work for the Australian people and to call for accountability from this government and from anyone who is in government.

I can see a time when government is formed by a coalition of smaller parties. It works well in Germany, where it has provided stability and prosperity for the largest economy in Europe.

I must go to some of the minister's comments. He said that unemployment is down, and he said this has happened since the 1980s. Well, I would like to refer the minister to the fact that unemployment in the 1960s was 2.6 per cent. He said that people are out there with more jobs in Australia. But more people are working because, in families, both the husband and the wife have to work to pay for the ever-increasing cost of living in this country. At one time, women were able to stay home and raise their children; now they can't have that option because they must pay the bills. So it's all pie in the sky. He's talking through his hat as far as I'm concerned.

Talking about free trade agreements, from the day that they signed the free trade agreement with America, from day one, we got rid of all of our tariffs, and America kept their tariffs on, from 11 to 18 years, on wool, wine, horticultural products, cotton and beef. So it has not been in the best interests of Australia.

I am not opposed to free trade agreements. But make sure they are in the best interests of our country. Don't hold the Senate in contempt—which you have done. Abide by the rule of order 20: lay the documents on the table 14 days beforehand.

Senator KIM CARR (Victoria) (10:03): I would just like to comment on the minister's 20-minute address, which fundamentally failed to explain why the government was not complying with the Senate's order for the production of documents, order of continuing effect 20, which requires that the full text of the proposed bilateral and multilateral agreements be laid on the table by the minister at least 14 days before the signing of those documents.

The minister made some feeble effort to argue that the trade processes we have at the moment are, somehow or other, transparent. Let the reality be clear: the process we have at the moment is nothing but opaque, and the minister himself says, 'We don't have to provide the documents and we won't provide the documents, because to provide the documents would weaken our negotiating position.' In fact, what occurs is that documents are provided only after those documents have been signed by the Commonwealth of Australia. The consequence of that is that then the only opportunity we have of dealing with that legislation is to change the enabling legislation; there is not a proposition put to the parliament on acceptance or rejection of that trade agreement.

Of course, this continuing order is based on the United States. Senator Wong in the Senate noted that the United States' trade representatives undertake to publish the full text of the free trade agreements negotiated on behalf of the United States well before the signing. That allows the US Congress and the US people to assess the provisions. Actually telling the people of the United States what the government of the United States is proposing to do when it engages in these foreign treaties doesn't seem to undermine its negotiating position. It doesn't seem to affect many other countries around the world that have a similar provision. That's why the Labor Party has proposed a fundamental reform of these treaty-making provisions under the A Fair Go for Australians in Trade Bill 2018, which has now received a second reading in this chamber, and we're waiting for it to come back to this chamber.

The fundamental problem we have here is that the agreements that are entered into by Australia are talked up, as we've seen here today, in a manner which does not reflect the reality of the operations of those agreements. This is not just about people who are, as the minister disparagingly said, antitrade. I can tell you now that I don't regard myself as antitrade. In introducing the A Fair Go for Australians in Trade Bill 2018 in the Senate, I made a point about the importance of trade and that Australia is a trade dependent economy. I regard myself as an internationalist. That has long been the case for those interested in social democracy. What I am interested in is the question of Australian sovereignty and the effect of these trade agreements, which, in their operation, don't bear fruit in terms of the claims and assertions made about them by the modellers and proponents of these agreements. It is not just people on the left who make this point, as the minister seemed to suggest. The Productivity Commission—that well-known left-wing organisation!—made the point again in its recent trade review:

Overall, the Commission concluded in 2010 that the economic benefits of bilateral trade agreements have generally been oversold and the risks have been understated. The Commission recommended that agreements should be reached only when they provide outcomes that are in Australia's interest and they are the most cost-effective way of achieving those outcomes. The Commission further recommended that there should be more transparent and rigorous assessments of such agreements. This should encompass two elements. To ensure agreements are in the Australia's interest, before negotiations commence, modelling should include realistic scenarios and be overseen by an independent body. After negotiations have concluded and prior to signing of the agreement, a full and public assessment should be undertaken covering all of the actual negotiated provisions. As with all areas of policy, trade agreements need to be considered on a case-by-case basis, and the balance of benefits and costs for future agreements may be different, for example because they cover a smaller share of Australian trade.

The minister makes great play about the significance of trade in terms of the changes that have occurred in Australian society over the last generation, and he places particular emphasis in saying a quarter of the growth that has occurred is due to trade. One-third of our trade is now with the People's Republic of China—our biggest single trading partner. Is there any better example of how clumsy, inept and incompetent this government has been than the treatment of our single largest trading partner, to the point that this minister, the trade minister before him and senior ministers couldn't even get an appointment!

I deal a great deal with universities. Vice-chancellors tell me about the importance of our international education system, and they constantly say to me, 'I hope they know what they're doing,' because it is not apparent to anyone else that the government know what they're doing. They're a government riven by chaos, riven by confusion. This is the proposition that we find across the Australian corporate sector. We see it not just in the corporate sector, though. Organisations representing workers, trade unions; NGOs; and the wider public are very, very concerned about the way this minister and the ministers before him have kept the public in the dark. This is a perfect example of it. They have refused to engage properly in a discussion about the future directions of this country because they have no idea what the future directions of this country are. Look at what they've done with Indonesia. They said they'd have a trade agreement signed before Christmas, except they went on this little frolic in the richest part of Sydney and said, 'Maybe we'll move our embassy in Israel to Jerusalem.' But what did they do? 'Oh, we forgot about the implications,' of that little frolic for short-term political advantage—they thought. They don't even understand what's happening within the Jewish community in this country, let alone what's happening in the largest Muslim country in the world, to our north.

This is a government that is riven by crisis and short-termism. It's a government that does not know what to do other than to desperately hang on to office, one day at a time. One day at a time—that's how this government operates. This is a government of nightwatchmen, with the blinds pulled down, hoping to Christ that nobody knocks on the door and wakes them up. The members of the government are desperate because they're so busy fighting amongst themselves that they've got no idea what the direction of this country is, no idea where to take this country, no idea what to do, no idea how to actually take this country forward. They're exhausted. They're exhausted by their own internal battles. Now they say, 'We're not going to tell you what we're up to'—frankly, because they don't know themselves. That's the real reason: they don't know themselves. They're going to assert that these great benefits have come from their actions. Well, the reality is very different when you look at it close up. It's not to weaken our negotiating position that the government want to keep the parliament in the dark. It's because the government don't know where they're going, don't know where this country is going and have no idea about how we should advance the interests of the Australian people. They are just so preoccupied now with surviving from one day to the next.

It's a simple proposition we have before us today—that we should get to see these trade agreements before they're signed, not be left in the lurch as we have been with the TPP. We should be left in a position where we can properly discuss them. This is not an outrageous proposition. This is a Senate that has many provisions whereby we provide advice on quite serious matters, and we have done so for a very long time, whether it's on shipping lists, grants to shipping companies, health funds or matters with regard to government advertising. It is not an outrageous suggestion that the government actually tell people what they're up to before they sign agreements that have such far-reaching consequences and that may well have massive implications for particular sectors and particular regions of our society. (Time expired)

Senator WHISH-WILSON (Tasmania) (10:14): There's an old saying: 'There's nothing new under the sun.' Just to remind senators, we've had this debate—exactly the same debate—in this chamber numerous times over the last six years. I remember I put up an order for the production of documents in the early stages of the Trans-Pacific Partnership Agreement, in 2014. Although the Senate voted for that order for the production of documents, the government refused to bring in any documents at all. I remember going and speaking to the previous Clerk of the Senate, Rosemary Laing, and I said, 'What do you do when the government is not complying with an order of the Senate?'

She got out Odgers—I remember the exact spot she went to in Odgers—and said to me: 'All you can do is disrupt their legislative agenda. If they won't comply with the order of the Senate, then every time something comes up on trade, every time we debate some legislation, you need to basically make their life hell'—more or less; those weren't her exact words, but that's my interpretation of what she said. We're still here, six years later, talking about lack of transparency around trade deals.

If anybody wants an informed document to read about exactly what we're debating today, then I suggest they go to the Senate Foreign Affairs, Defence and Trade References Committee's report, Blind agreement: how to reform the treaty making process. I was part of that committee; in fact, I initiated that inquiry into the treaty-making process. We had a number of senators in this chamber on that committee, and it was a great piece of work. It talked about the urgent need to reform our treaty-making process—the treaty-making process that allows agreement like the Trans-Pacific Partnership and other agreements like the Chinese free trade agreement or the US free trade agreement.

This treaty-making process is hundreds of years old. It hasn't changed since we adopted the Westminster system in this country. It goes back to almost precolonial days, when governments were able to negotiate treaties with other nations following wars. It gives an executive government complete power over parliament, and that's exactly what has happened. There's nothing complicated about this. The executive can negotiate through these processes not just trade deals in the sense that we tend to think—'We're going to swap goods and commodities with other countries'; that's not what trade deals are these days—but trade deals that are a holistic set of regulations between countries. It's an attempt to synchronise regulations between countries, regulations that affect just about every aspect of our lives. The Trans-Pacific Partnership agreement had 33 chapters that covered every aspect of Australians' lives. It had very little to do with traditional trade. It had very little to do with that at all. It's about a global rules based order. And guess what? Parliament doesn't get a look-in at all.

Over the years of the Trans-Pacific Partnership agreement—negotiations started in 2010—the only information we got on the text of that agreement was from WikiLeaks. The only information we got, thank goodness, was from Julian Assange's WikiLeaks, where we had downloads of what was going on. Do you think civil society could get into any of the meetings that were occurring behind closed doors between big business and governments? No, they couldn't. This was all negotiated behind closed doors, in secret.

I want everybody to stop and think about what exactly this trade negotiation is—this trade deal that we're talking about. It's not just what you see on TV, where you see minister wearing a floral shirt in another country who is about to sign a piece of paper. It's not about governments and DFAT negotiators behind closed doors. Think about it: this is about business coming together, going to government with vested interests and saying, 'We want you to negotiate improved access in these countries for us so we can make more profit, so we can make more money.' That's where it all starts. Governments act on their behalf, and then we get these agreements that the parliament doesn't get to look at until they're signed. That point has been made very clearly by Senator Hanson this morning and by Senator Carr. It's a joke. These are signed before they come to parliament; in other words, the government, the executive, agrees to this without the Australian people, without their representatives in parliament, even having a look or a say.

The JSCOT is the committee that we set up to look into this, but the JSCOT is a rubber stamp; it is a government-dominated committee. It will never reject a trade deal—never! And, by the way, you can't change a single thing, a single word, without the entire trade agreement falling apart. You can't amend it and you can't improve it, because it's signed and sealed by the executive. It's a direct snub at the parliament of this country, as it is in other countries. It's totally unacceptable. It railroads our democratic process, and it's allowed to do this because the treaty-making process hasn't been properly reformed since its inception. The JSCOT itself was a suggested reform: an attempt to try to give some kind of semblance of democracy to the negotiation of these deals. But it has failed completely, so the whole thing needs reform. We, the Greens, put in a dissenting report to that treaty-making process committee report. Nevertheless, I think that all parties agree in here that it needs reform and that it needs reform urgently.

I have pointed out consistently that the Trans-Pacific Partnership agreement is a dangerous agreement, not just for Australia but for many countries. We can't allow our rules and regulations to be written in this country by corporations for corporations. They are the power behind the throne in terms of these agreements. Have absolutely no doubt about it, transnational or multinational corporations—whatever you want to call them—push these agreements because they have operations in all the countries associated with them. They want to synchronise rules and regulations, such as investment rules, between countries to get what they want.

The investor-state dispute settlement clauses are a classic example of that. We had a separate Senate inquiry into ISDS and it got international attention; everybody wanted to know what the Australian government was going to do around ISDS. It is totally unnecessary in countries that have good legal systems. It is designed to give corporations the chance to second-guess and to intimidate parliaments. Again, that is antidemocratic. These are Trojan Horse clauses that are totally unacceptable in a modern trade deal. There is no need for them, they are proliferating, they have a number of adverse consequences and just about everybody agreed that we shouldn't have them in our trade deals. The only reason they were kept in the trade deals was because both Labor and the Liberals felt like they didn't want to be bound by this in case it jeopardised future trade negotiations. That's not a good enough reason to have an antidemocratic, dangerous ISDS clause in a trade deal.

So we've got to this point where we're having this debate again, asking the government to provide the information to the Senate. It won't, because it doesn't want to give up its executive power. It wants, essentially, to be able to have a parallel parliament and a process that completely circumvents our democratic parliamentary process because it has the power to do this and it will not give that up. Have a think about when these proliferations of trade deals started. They started in 2013, when the Abbott government was elected. Suddenly, we had this plethora of trade deals being signed: five trade deals. They were great photo shoot opportunities. We got really crappy modelling around all of these trade deals; just about every decent economist in this country said, 'The modelling is not worth the paper it's written on,' including the TPP modelling. Even the modelling that was done showed negligible benefits. We never have an honest debate in this country around trade. All we hear about are the benefits; we never focus on the cost. That's why I applaud Senator Hanson for bringing this forward today.

With every trade deal that we sign, and they cover just about every aspect of our lives, there are costs. We can have an argument about whether there is a net cost or a net benefit, but at least be honest with the Australian people: there are costs to these deals. While we get access for our exporters, we open up our markets, as you well know, Mr Acting Deputy President O'Sullivan, to foreign companies which actually sell products and undermine our local producers as well.

The car industry is a classic example, and there are so many more. In fact, I remember that the Korean free trade deal was called by the media in this country the 'cows for cars' deal. We traded away our car industry for more access for beef farmers. Who gets to decide whether beef farmers should win over car manufacturers? We don't get to decide it as an Australian people and we don't get to decide it as an Australian parliament. Who gets to decide it? It's the executive and the ideology—I would say the blind ideology—behind the blind treaty-making process that's in this country which allows this kind of circumvention of our democracy to occur.

I applaud bringing this forward. With every opportunity we have we should put pressure on this government to show some transparency around trade.

Senator GALLACHER (South Australia) (10:24): I too rise to take note of Minister Birmingham's response to the order.

I think it's worth putting on the record once again that in the space of the trade ministry since 7 September 2013 there have been three ministers: Minister Robb, Minister Ciobo and Minister Birmingham, assisted by assistant ministers Colbeck, Pitt, Hartsuyker and Coulton. Everywhere you look with this government, you look at a ministry and you realise that, in the short five years that they've been on the benches opposite, there's been a procession of people through the ministerial positions. Now, that could work out in the long run to be a good thing, but the evidence seems to indicate that it's not a particularly effective way of delivering successful outcomes for the country. And if you go back over the history, there were three ministers of trade in the entire Howard government period. I just put that on the table.

I get really interested when the other side keep saying, 'The Hawke-Keating period did this, that and the rest of it, and it was all great.' Well, if you glance at my bio and at Minister Birmingham's bio, you'll realise that he was in primary school when Bob Hawke was elected and probably completing studies at a university or organising a student union at a university when Keating was unelected. But I actually lived through all of that time, as a Labor Party member and a unionist, and it was a hard struggle to convince workers in all sectors that free trade agreements were useful to the country, because they certainly weren't popular, and they're not popular now. But there is no-one on that side doing the hard work of convincing people of the benefits of these free trade agreements. I can remember various Hawke-Keating ministers saying: 'Yes, there are going to be jobs lost in the economy, but we're going to replace them with better jobs. There will be better jobs. The economy is going to shift. These opportunities are good in aggregate for the country. We will make sure you're employed, and you will have better opportunities, particularly in the textile industry.' The textile industry was a classic. We then had the opportunity for families in marginal areas of the economy to purchase shoes, clothes and school uniforms at a much cheaper rate, but we lost jobs in Australia. It was a really harsh reality. But the advocacy was to take that issue head on and say, 'You're going to get better jobs.'

I, along with other senators in the chamber, have sat through all of the inquiries into the Japanese-Australia Economic Partnership Agreement, the Korea-Australia Free Trade Agreement, the China-Australia Free Trade Agreement, the TPP and the TPP-11, and I have read the submissions that have come in to all of these very useful inquiries. We put the reference in here about treaty making because of the evidence and the submissions we were getting and because there was a general agreement that treaty making needs to be more transparent. There is abundant evidence for this right around the world, outside of the Westminster systems. The Westminster system is basically: trade agreements are executive prerogative—whatever the minister wants to sign and get through cabinet is effectively what goes into the parliament. There is no say on the treaty per se; there is only a vote on the enabling regulations which give effect to tariff cuts and arrangements. That's the Westminster system, unlike the US, where people are invited into the treaty-making process—business, unions, people representing groups in the community. We've looked at all that and said, 'Why wouldn't Australia reform its treaty-making process to make it much more transparent?' Because we're not just talking about wool, sheep, iron ore, coal, zinc and aluminium; we're talking about an export of services.

I was in the United Arab Emirates. An Australian university has a campus in Dubai, and they were saying, 'This is an export of services.' I said, 'But how does it actually work?' The lecturers in Dubai are in a tax-free environment, and that's why it's attractive for them to go and work in Dubai. The university in Australia is getting government funds but making a profit in another jurisdiction, which is tax free. Where is the net benefit to Australia in all of this? The answer was that, if anything is repatriated back to the university in Australia, there will be less government funding put in. I said: 'Where's the incentive for them to do that? Why would you repatriate profits from overseas back to Australia and decrease your funding stream?'

When you look at services and education, it's extraordinarily complex. We've had three ministers in five years and four assistant ministers in five years. I would suggest that they would've had to take a little bit of time to get their head around these very complex issues. As Senator Carr says, there are many chancellors of universities who are very interested in this space who hope the government know what they're doing. We would hope that they would actually be a little bit more transparent. I don't think it's unreasonable to expect transparency on bilateral agreements about labour movement.

This morning we had a briefing from the MIKTA group, which includes Mexico. Mexico is quite a buoyant economy in a lot of ways. What I really know though is that that labour force in Mexico underpins the ninth largest economy in the world with legal and illegal labour. So those 90-odd million people in California—their agriculture and a lot of their economy would actually collapse without cheap Mexican labour. That's a fact of a Mexican-American free trade agreement.

We've got the same understanding that the TPP-11 could involve labour mobility. We can have a Peruvian electrician come over here and work in Australia, and, if they're appropriately qualified and there's a need for that, that's probably not a bad thing. But there is no transparency on this. There is a complete absence of transparency.

The ISDS provisions are only supported in the treaty-making process by the minerals lobby. The Minerals Council of Australia and their representatives are the only ones who support ISDS. There is no other support—those are the submissions to the various inquiries. They support it, quite rightly, because, if they make an investment in Indonesia or Africa or somewhere and they are at risk of losing that investment, they can take them to the international dispute-settling arena and seek redress. But there is no other person.

Agriculture doesn't support it. When we asked the people in agriculture what they thought of the ISDSs, they said: 'It doesn't matter to us. We're not interested. It doesn't apply to us.' We know that, with the case of the Hong Kong free trade agreement, it can severely impact on us. So we're of a mind to look at that issue very carefully, and we've made that very clear to the government. The government is saying: 'Trust—trust is all you need. We will do the right thing.' They don't even get out and argue. Let's not beat around the bush here: free trade agreements or trade agreements are not popular everywhere. You have to do the hard yards of going out and talking to people about it.

If we look at the China-Australia Free Trade Agreement, which is touted as the icon, we didn't need an agreement to get millions of tonnes on every tide in Western Australia to China. Their capacity to make steel drove that. We didn't need an agreement to do that. When we look at the agricultural aspects of it, particularly the phytosanitary barriers for vegetables, we can't get the best blueberries in the world from Tasmania to China because someone's written a barrier—a quarantine barrier or another barrier. These are not free trade agreements. There is no freedom about it. In a lot of cases, particularly in the area of Australian vegetables, for which exporters are seeking to get access to the Chinese market, there are enormous barriers.

If you press the department, they will always say, 'Oh, but that's Austrade.' Then, when you go to Austrade, they will say, 'That's the Department of Agriculture and Water Resources.' Then, when you get their heads together and ask, 'Why have we done an agreement that doesn't actually get us access?' they'll say, 'In aggregate, it's a good deal.' The problem is we don't get to examine it. I concur with Senator Whish-Wilson and others: transparency, disclosure and inclusion in the treaty-making process would benefit everybody in Australia. It would still be a difficult task, but it would be a lot better than the blind treaty-making process that we currently have. That's what it is; it is a blind treaty-making process.

Debate adjourned.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Treasury and Finance) (10:53): I move:

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

Question agreed to.

Bill read a first time.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Treasury and Finance) (10:54): I move:

That this bill be now read a second time.

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

Leave granted.

The speech read as follows—

The work of the Australian Secret Intelligence Service (ASIS) is undertaken outside of public view.

ASIS's operational successes are not heralded openly, and recognition of the individual achievements of the women and men who make up its ranks are necessarily discreet.

Nor is it possible to be completely candid about the circumstances in which those achievements come about, including the specific hazards officers have overcome in the course of their duties.

Nevertheless, it can be said much of ASIS's operational work overseas is necessarily conducted in hazardous environments, including in war-like zones and other high risk environments.

This reflects considerable change in the operating environments for ASIS officers since the original passage of the Intelligence Services Act in 2001.

The original form of the Act limited the ability of ASIS officers to act even in their own self-defence, reflecting the findings of the Second Hope Royal Commission in 1984.

By 2004, drawing on three years' practical experience immediately following the 9/11 attacks, and also drawing on ASIS's acknowledged role in direct support to the Australian Defence Force after 9/11, the Act was amended to allow ASIS officers, where authorised by the Minister for Foreign Affairs, to train in - and in certain circumstances use - weapons for self-defence.

Since the time of those amendments, successive governments have asked ASIS to do more in response to national security priorities and unfolding events, and to do so in new places and new circumstances unforeseen in 2001 or in 2004.

In the fifteen years since the last amendment related to ASIS's use of force, the world has indisputably become even more complex—and Australia has become more of an international terrorism and espionage target.

As a consequence, this Bill seeks to amend the Intelligence Services Act to:

enable ASIS to better protect its officers and other persons when operating in hazardous environments overseas, and

better protect Australia's national security interests, especially in counter-terrorism operations, overseas.

Protection of Additional Persons

The first amendment proposed would enable the Minister for Foreign Affairs to specify additional persons outside Australia who may be protected by an ASIS staff member or agent under Schedule 2 of the Act.

This would be at Ministerial discretion and could potentially include a range of individuals or categories of persons as appropriate to each context.

Currently, Schedule 2 permits the use of weapons by ASIS staff members or agents for self-defence, to defend other ASIS staff members or agents or persons cooperating with ASIS under Division 2 of the Act, or for training purposes.

The proposed amendment will mean that ASIS officers will be able to use weapons to protect a broader range of persons.

This will address a legal uncertainty identified by the Australian Government Solicitor (AGS) in the ability of an ASIS staff member to be compliant with the Act when defending certain other persons including bystanders, and to train for the use of force in those circumstances.

Use of Reasonable Force

The second amendment proposed will enable the use of reasonable force by an ASIS staff member or agent in undertaking specified activities outside Australia in the proper performance of an ASIS function.

It is important to note that this does not solely refer to the use of firearms.

This amendment will address several grey areas in the use of force under the Intelligence Services Act, particularly the use of reasonable and limited force to restrain, detain or move an individual who may pose a risk of the compromise of an operation, or where a staff member anticipates a possible safety risk.

The ability to use force will only apply where there is a significant risk to the safety of a person (this would likely, but would not necessarily need to be, an Australian person), or where there was a significant threat to security or significant risk to the operational security of ASIS.

This ability to use force where reasonably necessary for the performance of the specified activity will be a change for ASIS officers given that, as noted, their ability to use force is currently constrained to situations of self-defence.

Oversight

Before directing a specified activity, the Minister for Foreign Affairs will have to consult with the Prime Minister, the Attorney-General, the Minister for Defence and other relevant Ministers.

The Minister for Foreign Affairs would also need to be satisfied that arrangements are in place to ensure any actions taken by ASIS officers are necessary and reasonable, having regard to the purposes for which the direction is given.

It is important to note that any use of force will be proportionate – it will be the minimum reasonable force given the circumstances.

While lethal force may already be used in self-defence as a last resort to protect an officer or another protected person from serious harm or death, it is explicitly provided that in undertaking such an activity ASIS staff members or agents will not, and must not, engage in torture; cruel, inhumane or degrading treatment; sexual assault; or unlawful killings.

An example of the use of force under these circumstances could include the keeping safe of an uncooperative person from a source of immediate danger during an ASIS operation, including by removing them from the source of immediate danger, even if they are in shock or paralysed with fear.

Like the existing ability to use weapons for self-defence, the amendments for the use of force will be a Ministerially authorised exception to the general prohibitions in ASIS activities against the use of violence against the person.

Oversight arrangements for these amendments will be critical, and will include key roles played by the Inspector-General of Intelligence and Security (IGIS) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS). Importantly, the Inspector-General and her office were consulted in the development of this Bill.

Among other independent accountability and authorisation methods, the Inspector-General will need to be provided with copies of the ministerial approvals to undertake these specified activities and copies of ASIS's guidelines on the use of weapons and use of force.

Additionally, the Inspector-General, on receipt of the guidelines on the use of weapons and use of force, or changes to them, would be required to offer to brief the PJCIS on the content and the effect of the guidelines or the changes.

This would be consistent with the remit of the PJCIS in matters of ASIS's administration and would provide a means for the committee to be satisfied that there are appropriate settings for the use of weapons and use of force.

Additional accountability

There is an additional accountability measure. The 2017 Independent Intelligence Review made a number of recommendations, including Recommendation 19: to delegate to the Director-General of ASIS certain authorisations, currently exercised by the Minister for Foreign Affairs, in relation to the training of ASIS officers in the use of weapons, and the deployment of such weapons.

This Recommendation will not be implemented by the Government.

The Minister for Foreign Affairs will retain the authorisation power in relation to the training of ASIS officers in the use of weapons, and the deployment of such weapons.

The amendments instead underline the continuing importance of the role of the Minister for Foreign Affairs in authorising the use of weapons by ASIS.

If this Bill is passed, the conduct of a specified activity by ASIS or its agents would require that the Minister for Foreign Affairs consult with the Attorney-General before authorising such an activity, and this provides an additional opportunity for legal concerns to be raised, if any. The Minister for Foreign Affairs will also be required to consult with the Prime Minister and any other relevant Minister.

If this Bill becomes law, the independent Inspector-General of Intelligence & Security will oversee compliance with the Bill to ensure that ASIS's conduct is consistent with the law and with the Australian public's expectations of propriety.

Addressing misconceptions

It is perhaps unavoidable that having an intelligence agency whose core task is to undertake covert activities gives rise to myths and misconceptions about its activities and the rules under which it operates. This is despite the advent of the Intelligence Services Act itself, and its clear articulation of ASIS's functions and oversight arrangements.

These amendments may precipitate a similar set of myths and misconceptions.

It is therefore important to articulate what these amendments do not allow – in addition to articulating what they do allow.

The first such misunderstanding may be a confusion between ASIS's modern mandate and authorisations, compared to ASIS's pre-1984 'Special Operations' function, which was ended after a recommendation of the Second Hope Royal Commission.

These proposed modern measures are in no way the same as ASIS's pre-1984 role: there is no need for ASIS to conduct special operations. Australia has an existing Special Forces capability within the Australian Defence Force.

While the amendments are directed towards self-defence, it is possible that some members of the public may equate this with para-military offensive action. Nothing could be further from reality.

ASIS does not have, nor is it seeking, an offensive armed capability.

Lethal force may currently only be used as a last resort to protect an ASIS officer or protected person from serious harm or death. This will not change.

The amendments allow this self-defence provision to be extended to those not directly part of an ASIS operational team, such as hostages being rescued, or bystanders who need to be kept safe from a source of immediate danger.

Further, to avoid any doubt, the amendments make explicit by law that which has always been understood through the action of other legislation and conventions: ASIS staff members or agents are specifically prohibited from engaging in torture; cruel, inhumane or degrading treatment; sexual assault; or unlawful killings.

Current Challenges

ASIS has trained and deployed with weapons in certain situations since 2004. But, as noted at the beginning of this speech, challenges to Australia's national security require ASIS to more frequently operate in hazardous circumstances overseas – especially against increasingly sophisticated and ruthless armed terrorist groups.

The current provisions of the Act are leading to unintended and unsafe situations for ASIS officers, and others.

For example, under the current Act, an armed ASIS officer undertaking an operation overseas may only use a weapon in defence of another officer, agent or a limited category of person co-operating with ASIS. The Act currently prohibits an ASIS officer from using a weapon in defence of an innocent person who is threatened by a terrorist or kidnapper, even where this threat is present in front of the ASIS officer.

The proposed amendments will allow an ASIS officer confronted with this situation to act appropriately in defence of the innocent person.

Nevertheless, these amendments do not affect the existing prohibition in Section 6(4) of the Act that prevents ASIS officers from planning or undertaking paramilitary activities.

The need for action

Another recommendation of the 2017 Independent Intelligence Review was for a comprehensive review of national security legislation to be undertaken. Such a review has already been established under the leadership of eminent retired public servant, Mr Dennis Richardson AO.

The amendments in this Bill do not pre-empt the outcomes of Mr Richardson's Review. That review is not scheduled to complete its final report until the end of 2019.

Enhancing the protection of ASIS officers conducting operations in the name of Australia, including rectifying gaps and shortcomings, is required in the near term.

Conclusion

To conclude, each day the women and men of ASIS go about their work to protect and advance the Australian national interest. They are often called upon to do so covertly, at considerable personal risk and hazard, and in environments of significant danger.

As the world becomes more complex, it is clear that the legislation that governs ASIS operations also needs to evolve to ensure that staff members, and the agents who assist them, have the appropriate capacity for self-defence, as authorised by the Minister for Foreign Affairs.

Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (10:54): I rise to speak on the Intelligence Services Amendment Bill 2018 on behalf of the opposition. I would like to say at the outset that Labor supports this bill. We support this bill because we recognise the need to modernise the legislative framework that governs the Australian Secret Intelligence Services, ASIS, to reflect the changing operational realities of the global environment and the nature of Australia's current national security challenges.

First, some background is helpful to contextualise the proposed amendments that the Intelligence Services Amendment Bill 2018 makes to the existing legal framework. The Intelligence Services Act has an explicit limitation that, in performing its functions, ASIS must not plan or undertake activities that involve paramilitary activities, violence against the person or the use of weapons. In 2004, parliament amended the Intelligence Services Act to permit ASIS staff members and agents to undertake training in, and to engage in the use of self-defence techniques and weapons for the purpose of protection when undertaking activities outside Australia. This is subject to ministerial approval.

The nature of the protection that an ASIS agent or staff member can be trained to engage is in interpreted consistently with common law principles of self-defence—in other words, a minimum force reasonably necessary in the circumstances as the staff member or agent perceives that it is required to protect life or to prevent serious injury to themselves or to another person. However, currently there are strict limitations on who may be protected by an ASIS staff member or agent acting in self-defence. The scope is limited to the individual ASIS member or agent themselves, other members or agents of ASIS or a person from another approved authority who is cooperating with ASIS. This is a narrower scope than those who may otherwise be protected by any other Australian person acting under the common law of self-defence. This means that, should an ASIS staff member or agent engage in the use of a weapon or self-defence technique to protect persons who are not within the limited scope defined by the legislation, their action may actually be permitted in accordance with common law, but they would be in breach of the Intelligence Services Act.

This bill would amend the Intelligence Services Act to: firstly, enable the minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent; and, secondly, provide that an ASIS staff member or agent performing specific activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function. Additional persons could include officers from other agencies such as officers from a state or Commonwealth agency and from approved foreign agencies, hostages and other bystanders.

The amendments are also intended to address another current legal uncertainty as to whether the existing provisions that enable the use of a weapon or self-defence technique for protection also extend to the ability to apply pre-emptive force or threats of force to restrain, control or compel a person in a situation where the ASIS member or agent feels that, if they do not do so, the situation is likely to escalate to a situation where greater force is required. This use of pre-emptive force in this context would be limited to what could constitute reasonable and necessary force but could not result in physical harm or injury to the person that might exceed the threshold of actual bodily harm under Australian law.

Crucially, the proposed extended powers available to ASIS staff and agents to use weapons, self-defence techniques and reasonable force will be subject to appropriate oversight. Specifically, ministerial approval is required for an ASIS officer or agent to be provided with a weapon, to be provided with training in the use of force and to use force for the purposes of or in the course of specified activities. The minister must not give approval unless they have also consulted with the Prime Minister, the Attorney-General, the defence minister and any other minister who has responsibility for a matter that is likely to be significantly affected by an act that is to be approved. Approval must be provided in writing to the Director-General of ASIS and must specify any conditions that must be complied with and, if approved, the kind or class of weapon involved. In addition, the Director-General of ASIS must give a report to the Inspector-General of Intelligence and Security, the IGIS, if a weapon or self-defence technique is used by an ASIS staff member or agent. The report must be given in writing as soon as practicable after the weapon or self-defence technique is used, and explain the circumstances under which the use occurred.

The bill also includes a new oversight mechanism whereby the IGIS must brief the Parliamentary Joint Committee on Intelligence and Security regarding the content and effect of ASIS guidelines on matters related to the use of weapons and self-defence techniques if requested by the committee or if the guidelines change. This is intended to provide an additional layer of external scrutiny to the content and scope of guidance to ASIS staff members and agents in order to ensure that such rules governing the use of force remain appropriate.

This bill was introduced to the House of Representatives and then referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report. Following inquiry, the committee was satisfied with the provisions contained in the bill and recommended that the Intelligence Services Amendment Bill 2018 be passed. Labor appreciates the non-partisan and consultative manner in which this bill has been dealt with, and the respect for the parliament and the importance of adequate oversight requirements. This should provide confidence to the parliament and to the public in regard to the additional powers conferred by this bill. Such an approach is an example of how national security legislation should be pursued. I recommend the bill to the Senate.

Senator McKIM (Tasmania) (11:02): I rise to speak on the Intelligence Services Amendment Bill 2018 and to express some concerns that the Greens have about this legislation. The explanatory memorandum to this bill states:

The Bill will improve and modernise the legislative framework that governs the use of force by the Australian Secret Intelligence Service (ASIS) to address key operational challenges and issues. The Bill will do this by amending the Intelligence Services Act 2001 (IS Act) to:

a. enable the Minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent; and

b. provide that an ASIS staff member or agent performing specified activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function.

In short, additional persons or classes of persons will be permitted to use weapons, and ASIS staff members and agents will be permitted to use force, including the use of a weapon, against persons outside Australia.

It's fair to say that ASIS has a pretty chequered history when it comes to the use of weapons. The legislative framework governing ASIS's use of weapons was changed significantly in response to a recommendation of the Royal Commission on Australia's Security and Intelligence Agencies following what became known as the Sheraton Hotel incident, which took place in November 1983.

It's worth reminding ourselves of the circumstances of that incident. I'm relying here on a paper entitled Wayward governance: illegality and its control in the public sector, published by the Australian Institute of Criminology. In that paper the AIC wrote, in relation to the Sheraton Hotel incident, that, in that incident, staff of the hotel were confronted at a lift by a group of men:

Some were wearing masks, some were carrying weapons, ranging from Browning 9 mm automatic pistols to the formidable Heckler and Koch submachine gun. The intruders moved through the lobby into the kitchen, menacing the kitchen staff on the way, and departed in two getaway cars waiting outside a kitchen exit. One of the cars was stopped by … Victoria Police a short distance from the hotel and its occupants were taken into custody. … Hotel staff may have assumed that they were the victims of an armed robbery; in fact they were unwilling parties to … a resoundingly unsuccessful training exercise by officers of the … Australian Secret Intelligence Service (ASIS).

The royal commission recommended that the use of weapons by ASIS be terminated and that ASIS's stocks of weapons, including explosives, be disposed of. The government of the time accepted and acted on those recommendations.

I have a personal recollection of this event, and I would imagine that many of the senators of my age—ranging from slightly younger to quite a bit older—in this place would also have a personal recollection of this event. It does call into memory some of the other shambolic so-called training exercises that have been held in Australia by our security and intelligence services, including one that was ultimately truncated on the streets of Melbourne a few years ago by the Australian Border Force. That particular event, the Sheraton Hotel incident, which took place in November 1983, did result in a significant change to the legislative framework regarding ASIS's use of weapons and the stocks of weapons that ASIS could maintain. It's also worth noting that, since then, in 2004 an amendment enabled ASIS staff members and agents to be trained in and equipped with weapons and techniques for the purposes of self-defence and the defence of fellow officers and others cooperating with ASIS under authorisation of the Minister for Home Affairs.

That's where the framework sits at the moment. ASIS agents and staff members can be trained in self-defence techniques and equipped with weapons for the purposes of self-defence and the defence of fellow officers and other people cooperating with ASIS. This amendment continues the mission creep that we so often see in this place. Again, it would, in effect, lower the threshold from where it currently sits with regard to self-defence and change that threshold by providing that an ASIS staff member or agent preforming specified activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function. That's a significant lowering of the threshold that is being presented to us today.

It's been argued by the government that this is a minor increase in powers which is both necessary and proportionate, but, in the view of the Australian Greens, this is mission creep. This legislation joins the many hundreds of pieces of legislation that we've seen passed through state, territory and Commonwealth parliaments in the last 20 years that provide greater powers to our intelligence services and erode fundamental rights, freedoms and liberties in this place.

I want to say again that Australia is the only liberal democracy in the world that does not have some form of charter or bill of rights either constitutionally or legislatively enshrined. It's a matter that absolutely needs to be addressed by this parliament, and I remind members that the Greens have a motion that will be coming on later today to provide for a Legal and Constitutional Affairs References Committee inquiry into the form and function of a legislated charter of rights in this country. We urgently need a charter of rights in Australia because the LNP and the ALP, in zombie policy lock step, are sleepwalking Australia down the dangerous path to a police state.

We will see legislation that is far more significant than this come before the Senate in the next 36 hours or so, when there will be amendments around powers that intelligence agencies have in regard to backdoor entry to encrypted apps. That legislation will contain other, particularly disturbing, provisions, including a provision that some intelligence agencies may be able to remotely access the computer of anybody in this country for specific purposes in specific circumstances without the knowledge of the person whose computer it is and in some cases without a warrant. Disturbingly, the legislation provides that, even if on retrospective application a judicial authority or the AAT makes a determination that in fact a warrant should have been sought—that is, that the remote covert access to anyone's computer was made unlawfully—the intelligence agencies can actually keep the information that they unlawfully accessed from a private citizen's computer and use that information in their investigations.

We are seeing an erosion of fundamental rights and freedoms. It is not just civil and political freedoms, although those are being eroded in this country, and there is quite rightly significant concern about that, but other freedoms and rights, such as the right to privacy. This is all being done in the name of counterterrorism, and it's being done in deals stitched up behind the closed doors of the Joint Standing Committee on Intelligence and Security between the ALP and the LNP. I want to say how disappointing it is that the ALP has crumbled into a pathetic heap in regard to the encryption legislation.

Senator Farrell: Why don't you start fixing up your own problems first, before you criticise the Labor Party?

Senator McKIM: I'll take that interjection. You know when someone is concerned, when you've hit a sore nerve, in this place, because the volume from the Labor benches arcs up. We are seeing again the zombie policy of the ALP and the LNP as they get together in lock step and erode fundamental rights and freedoms that they, particularly the Australian Labor Party, used to stand for in this place many years ago. I reckon Doc Evatt would be rolling in his grave at the moment at the way his party is conducting itself in this place.

On the legislation that is currently before us, it's probably worth pointing out that ASIS managed to illegally bug the Timor-Leste government in order to defraud Timor-Leste out of hundreds of millions of dollars of revenue from the Timor oil and gas fields that were rightly Timor-Leste's. It was defrauded out of those revenues—unlawfully—by the Australian government through ASIS's bugging of the Timor-Leste government deliberations on that matter. ASIS managed to do that quite successfully without an increase in their powers relating to how and in what circumstances they can use their weapons. That was one of the most shameful acts of any intelligence agency in our country's history—ripping off one of our impoverished neighbours of many hundreds of millions of dollars, at a minimum, that that country could have used to help lift its people out of poverty and provide essential medical and educational services to its people. That money was effectively stolen by the Commonwealth government, because they unlawfully bugged the cabinet deliberations of Timor-Leste and used the information they gathered through that unlawful bugging to, effectively, steal money from Timor-Leste. It is a shameful and highly embarrassing chapter in our country's history, and one which will continue to be spoken about in this place as the shameful trial of Mr Bernard Collaery and Witness K continues in the ACT legal system. I, for one, and I know colleagues Senator Patrick, Senator Storer and Mr Wilkie from the other place will continue to keep as close an eye as possible and continue to speak about it in this place, because that prosecution never should have been authorised by the Attorney-General in the first place.

So, when we hear assurances that additional powers given to our intelligence agencies will not be used in unintended ways, which is an assurance the government is trying to give us with regard to this legislation, I want to refer people back to metadata laws, again shamefully supported by the ALP and the LNP in their zombie policy lockstep and their slow sleepwalking into authoritarianism and a police state in this country. When those metadata laws were put before this parliament, the entire debate was framed by both of the major parties in this place as being about counterterrorism and national security. I invite the people who made those claims to go have a look at various reports from various agencies which actually disclose how access to metadata has occurred and why access to metadata has occurred. I refer them to the case of a local council in Queensland who accessed somebody's metadata in an attempt to find out whether they had an unregistered pet. That's the kind of mission creep that we're dealing with here, and history is replete with examples of laws being passed on a particular basis and then government authorities or agencies using those laws for something that was not contemplated by the policymakers at the time or at least not admitted to being contemplated by the policymakers at the time.

Again, it is mission creep. For readers of history, you should know that, when you give extra powers to intelligence agencies and allow those powers to be utilised by other government authorities, what we will see is mission creep and those powers being used for purposes that were not contemplated at the time that the powers were granted by this parliament. So we have very little faith when we hear assurances that additional powers will not be used in unintended ways, and that is the case also with this legislation.

Senator PAYNE (New South Wales—Minister for Foreign Affairs) (11:17): I will make a few summing up observations on the Intelligence Services Amendment Bill 2018. I thank senators for their contributions to the debate. The work of the Australian Secret Intelligence Service is necessarily undertaken largely away from public view. Nevertheless, I can say in this place that much of ASIS's operational work overseas is necessarily conducted in hazardous environments, including in warlike zones and other high-risk environments. There has been considerable change in the environments where ASIS officers are deployed, and the risks—the threats—have increased greatly since the original package of the Intelligence Services Act in 2001.

The original form of the act limited the ability of ASIS officers to act even in their own self-defence, but by 2004, drawing on practical experience after the attacks of 9/11, the act was amended to allow ASIS officers, where authorised by the Minister for Foreign Affairs, to use weapons for self-defence in narrowly defined circumstances. Since the time of those amendments, successive governments have asked ASIS to do more in response to changing national security priorities and to unfolding events and to do so in new places and in circumstances unforeseen in 2001 or even in 2004. Fifteen years later, the government is of the view that it is time to amend the act to allow ASIS to more safely operate in a far more complex and dangerous world. This bill seeks to amend the Intelligence Services Act to enable ASIS to better protect its officers and other persons, when operating in hazardous environments overseas, through the defined use of force and to protect Australia's national security interests, especially in counterterrorism operations overseas.

There will be additional oversight mechanisms that come with these new and additional powers to use force under clearly defined conditions. The Minister for Foreign Affairs will need to be satisfied that arrangements are in place to ensure any actions taken by ASIS officers are both necessary and reasonable, having regard to the purposes for which the direction is given. While lethal force may already be used in self-defence as a last resort to protect an officer or another protected person from serious harm or death, it is explicitly provided that in undertaking such an activity ASIS staff members or agents will not, and must not, engage in torture, cruel, inhumane or degrading treatment, sexual assault or unlawful killings.

The amendments before the Senate underline the continuing importance of the role of the Minister for Foreign Affairs in authorising the use of weapons by ASIS. If this bill is passed, the conduct of a specified activity by ASIS or its agents would require the Minister for Foreign Affairs to consult with the Prime Minister and certain other ministers before authorising such an activity. If this is enacted, the independent Inspector-General of Intelligence and Security will oversee compliance with the bill to ensure that ASIS's conduct is consistent with the law and with the Australian public's expectations of propriety.

I note the contributions of both Senators Farrell and McKim on the bill. I thank Senator Farrell for his contribution. In relation to the observations made by Senator McKim: I note that, in an approach typical of the Australian Greens to protecting Australia's national security, Senator McKim has engaged in a spray about issues that are of concern to the Greens and which don't appear to include Australia's national security as such. In referring to the bill itself as 'mission creep', Senator McKim conveniently ignores all of the protections which I've just spoken about—the oversight mechanisms which I've just referred to, which are part of the bill and which Senator Farrell has already referred to in his remarks. Senator McKim ignored all of that, but that is unsurprising coming from the Australian Greens.

It is pertinent also to refer to the senator's observations in relation to the Hope royal commission and measures which came out of that. It is important to note that these measures are not the same and that the circumstances are most certainly different. I think it is most unfair, in fact, to characterise this particular bill as mission creep, given the great deal of consideration that has gone into its development and given the effluxion of time, indeed, since the last time the act itself was amended in this context.

There is now in Australia no need for ASIS to be in a role of undertaking special operations. Of course, we have an existing special operations capability as part of the ADF. As I noted in my remarks when the last amendments were made on these matters in 2004, ASIS has trained and deployed with weapons in certain situations since that time. But there have been challenges and changes to Australia's national security circumstances which, as I said in my opening statement, require ASIS to operate increasingly in hazardous circumstances overseas, especially when operating against terrorists, violent extremists and other threats.

The current provisions of the Intelligence Services Act are leading to absurd situations which would make little sense to the public. For example, we might see armed ASIS officers undertaking an operation overseas being prohibited by the current act from using weapons in defence of an innocent person other than another officer, an agent or a limited category of cooperating person who might be threatened by a terrorist or a kidnapper, even where this is occurring right in front of them. This includes both Australian and foreign national hostages. These amendments don't affect the prohibitions in section 6(4) of the Intelligence Services Act which, of course, prevent ASIS officers from planning or undertaking military activities.

A great deal of consultation has gone into this bill to ensure that it is transparent and that it is the most effective bill possible. The amendments, as I said, are not proposed lightly, nor are they excessive, nor are they an overreach. We believe in them, and the government supports them, because they are balanced, they are proportionate and, fundamentally, they are necessary.

To conclude, every day the women and the men of ASIS go about their work in protecting and advancing Australia's national interests. They are often called upon to do so covertly at considerable personal risk and hazard and in environments of significant danger, and I want to acknowledge them and their work. As the world has become more complex, it's clear that the legislation that governs ASIS operations also needs to evolve so that staff members and the agents who assist them have the appropriate capacity for self-defence as authorised by the Minister for Foreign Affairs. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The ACTING DEPUTY PRESIDENT ( Senator Hume ) (11:25): As no amendments to the bill have been circulated, I shall call the minister to move the third reading unless any senator requires that the bill be considered in Committee of the Whole.

Senator PAYNE (New South Wales—Minister for Foreign Affairs) (11:25): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator PAYNE (New South Wales—Minister for Foreign Affairs) (11:26): I move:

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

Question agreed to.

Bill read a first time.

Senator PAYNE (New South Wales—Minister for Foreign Affairs) (11:26): I move:

That this bill be now read a second time.

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

Leave granted.

The speech read as follows—

The Foreign Influence Transparency Scheme Legislation Amendment Bill 2018 will amend the Foreign Influence Transparency Scheme Act 2018 ('the FITS Act') and the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 ('the NSLA Act').

This Bill is intended to ensure that the registration scheme set up under the Foreign Influence Transparency Scheme Act2018 will be fully robust and operational in time for the coming federal election.

The FITS Act

When the FITS Act commences, it will establish a registration scheme for persons undertaking certain activities on behalf of foreign governments, foreign government related entities, foreign political organisations and foreign government related individuals.

The Secretary of the department administering the scheme will be required to publish, on a website, certain information about such persons.

The NSLA Act

Under the NSLA Act, persons with existing arrangements that will make them liable to register under the FITS Act once it commences are granted a 6 month grace period within which to register.

Ordinarily, the FITS Act would require persons who are liable to register to do this within 14 days of this liability arising.

The Foreign Influence Transparency Scheme Legislation Amendment Bill 2018

This Bill will effect two key changes.

First, the Bill will require historical information to continue to be published about persons registered under the FITS Act after they cease to be registered. This will ensure that people can access information about both past and present instances of foreign influence registered under the FITS Act scheme.

Second, the Bill will amend the 6 month grace period currently granted under the NSLA Act.

The 6 month grace period currently granted under the NSLA Act effectively excuses certain people who will be liable to register once the FITS Act commences from having to do so before the upcoming federal election if it takes place in the first half of 2019.

The grace period granted under the NSLA Act will be shortened to a 3 month period which will be further subject to the issuing of election writs. If election writs for either House of Parliament are issued before the end of this 3 month period, persons who would otherwise have been entitled to the grace period will have to register within 14 days of the issuing of the writs.

This will ensure, consistently with the FITS Act's original intention, that the FITS Act scheme is fully operational in time for the next election.

Conclusion

The provisions in this Bill will better give effect to the FITS Act's underlying purpose, which is to ensure transparency with respect to foreign influence in Australia's governmental and political processes.

Senator FARRELL (South Australia—Deputy Leader of the Opposition in the Senate) (11:27): I rise to speak on the Foreign Influence Transparency Scheme Legislation Amendment Bill 2018. This bill is an amendment to the Foreign Influence Transparency Scheme Act 2018, the FITS Act; and the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, otherwise known as the EFI Act, which both passed through the parliament in June of 2018. The FITS Act creates a registration scheme for persons undertaking certain activities on behalf of foreign governments, for foreign government related entities, foreign political organisations and foreign government related individuals. The EFI Act, which deals with overlapping subject matter, stipulates that persons who have existing arrangements, once the scheme commences, have a six-month grace period before they are expected to comply.

The government has announced that the registration scheme is due to come into effect on 10 December this year. The Foreign Influence Transparency Scheme Act 2018 makes two major changes to these existing arrangements. It amends the EFI Act to shorten the grace period for compliance for those parties with existing arrangements from six months to three months. It also stipulates that, if writs for a federal election are issued within that three-month period, parties will only have 14 days to comply. It amends the FITS Act to stipulate that past registrations will still be available publicly and searchable on the internet, not just current registrations. Without this change, past affiliations or arrangements with foreign political organisations or foreign government related individuals will disappear from public view once they expire.

The first change is designed to account for the expected timing of an upcoming federal election—whenever that may be. With the scheme coming into effect on 10 December 2018, if the six-month grace period were not shortened, registration obligations would not come into effect until June 2019, after the election. With the proposed change they would come into effect in March 2019. The second change appears to be an oversight by the government in the original bill, which is, of course, regrettable. It's clearly in the public interest for past associations with foreign political organisations or foreign government related entities to be on the public record.

These amendments should perhaps be a sign to the government that taking the time to make good law, when it comes to national security, is a good thing—a lesson that, apparently, they have not learned. Though not ideal, the committee process for both the Foreign Influence Transparency Scheme Bill and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill was cooperative and productive. The committee report on the latter bill contained more than 60 recommendations—the most relating to any bill that has ever been before that committee. It shows you, perhaps, the magnitude and the difficulty of the work that this committee does on a regular basis.

Labor supports this bill, as it is an extension of support for the original bill. We supported the original Foreign Influence Transparency Scheme Act 2018 and the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 on the basis that foreign interference in our political system, if it is malign, is unacceptable, and, even if it's benign, it should nevertheless be transparent. Both changes are technical rather than substantive. While we regret that these matters were not dealt with in the original legislation, we support those amendments now.

Senator McKIM (Tasmania) (11:31): I rise to speak on the Foreign Influence Transparency Scheme Legislation Amendment Bill 2018, which the Greens will be supporting. The main effect of this bill will be to expand the scope of the information to be made publicly available with regard to those registered under the Foreign Influence Transparency Scheme Act registration scheme. The bill will also reduce the grace period for registration by those with registerable arrangements at the commencement of the Foreign Influence Transparency Scheme Act—which is 10 December 2018—from six months to the earlier of three months from commencement or 14 days from the issue of election writs. The Attorney-General, in his second reading speech on this bill, stated that the six-month grace period currently granted under the NSLA act effectively excuses certain people who will be liable to register once the FITS Act commences from having to do so before the next federal election if it takes place in the first half of 2019, which you would think is just about a certainty as we stand here today.

The Australian Greens do have concerns about foreign influence, and, if you want to understand the impacts of foreign influences on some of our world's largest and most important democracies, senators need look no further than the Brexit vote in the UK and the election of Donald Trump as the President of the United States. In both of those votes, there was significant foreign influence, and, in both of those cases, the foreign influence included, but was probably not limited to, the state of Russia. We hold grave concerns about foreign influence in Australia's democracy. There have been repeated warnings from security agencies such as ASIO of attempts by foreign governments to influence our democracy. Certainly, one foreign government that we hold significant concerns about—a government which has attempted, and is undoubtedly attempting, to influence our democracy—is the government of China, with which both the LNP and the ALP have very close ties. Those ties are to the detriment of the independence of our democracy. So we will be supporting this bill because, even though the measures contained in it are quite small steps, we believe they do step us down the road towards a more robust protection of our democracy from interference and influence by foreign governments.

Senator REYNOLDS (Western Australia—Assistant Minister for Home Affairs) (11:34): I thank senators for their contributions to this bill. The Foreign Influence Transparency Scheme Legislation Amendment Bill 2018 will ensure that the registration scheme set up under the Foreign Influence Transparency Scheme Act 2018 will be fully operational in time for the upcoming election. It was always intended that historical information about persons registered under the FITS Act should continue to be published after their registration ceases. The bill will ensure that this will occur. It was also always intended that the FITS Act scheme would be fully operational in time for the next election. This bill will make sure of this.

The provisions in this bill will better give effect to the FITS Act's underlying purpose, which is to ensure transparency with respect to foreign influence in Australia's governmental and political processes. The bill will also ensure that the public can access information, both past and present instances, on foreign influence registered under the FITS Act, improving transparency for all elections to come. It's for all of these reasons that I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The DEPUTY PRESIDENT (11:36): I understand no amendments have been circulated. Does any senator require a committee stage? If not, I shall call the minister to move the third reading.

Senator REYNOLDS (Western Australia—Assistant Minister for Home Affairs) (11:36): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator POLLEY (Tasmania) (11:36): This bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill, reflects a change to the Family Law Act which Labor has been calling on the government to make for some time. It's hard to believe that in 2018 family-violence survivors are still sometimes required to endure cross-examination conducted by their own abusers. It seems unthinkable, but it happens. According to an Australian Institute of Family Studies report published in June 2018, 173 survivors were directly cross-examined by their abusers in family law matters over the course of two years. But that number likely disguises the much larger number of women who, faced with the possibility of direct cross-examination, choose to settle in order to avoid it, often with suboptimal outcomes. It's hard to put into words how horrific an experience it must be, to have the person who has inflicted hurt and pain on you question you in front of others about that very experience. It is a tool perpetrators can and have used to inflict fresh pain and trauma on survivors. It should have stopped a long time ago. It's an outrage that it continues.

Before the 2016 election, Labor pledged to change the law so that this horrible practice stops happening. We also pledged $43 million in funding for Legal Aid, over four years, to provide legal representations during hearings to prevent direct cross-examination from being necessary. Our party leader committed Labor to that policy on White Ribbon Day in November that same year. It was then and it is now an initiative I am very proud of. It was something that needed to happen. As the member for Maribyrnong said in his speech two years ago:

This is trial by ordeal. It is an added indignity, a further injustice, inflicted by the abuser who has already done enough damage. Cross-examination in family violence by unrepresented perpetrators is a re-injury. It is new harm on top of the old …

And we can put a stop to it.

Labor's policy would have compelled judges to first consider whether appropriate protection should be put in place during cross-examination of domestic violence survivors and, if available mechanisms were insufficient, to impose a ban. Labor has led the debate on this issue, and thankfully, finally, the government has followed. The government has produced this bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill, which imposes an automatic ban on direct cross-examination of family violence survivors by their perpetrators. This automatic ban applies where there is evidence or allegations of family violence between the two parties in a family law matter.

The ban will automatically be imposed if certain conditions are met. If there is an allegation of family violence between the two parties and either party has been convicted of or charged with an offence involving violence or threat of violence to the other party, then the automatic ban will apply. Similarly, if a family violence order applies to both parties or if an injunction is in place for the personal protection of either party, the automatic ban will apply. Of course, there could still be serious family violence in play, even if none of those conditions are met. In that case, the court still has the discretion to impose a ban if it is deemed appropriate, and, if a ban is not imposed, the court will be required to apply other protections for the victim such as video link or screens during cross-examination.

In cases where the ban is imposed, unrepresented parties will be directed by a judge to obtain representation either through Legal Aid or through private funding. This includes both survivor and perpetrator. If either party cannot obtain or refuses to obtain legal representation, no cross-examination can take place.

This bill was put through the House ahead of any funding for Legal Aid being announced, which Labor objected to on the basis that it was premature. However, we are pleased to hear that a deal has in fact been struck with Legal Aid of $7 million over three years, commencing 1 July next year. Although this is substantially smaller than Labor's commitment, and Labor remains sceptical that the amount will be sufficient, we accept that National Legal Aid has expressed satisfaction with this amount. We continue to believe, for instance, that the current numbers of instances of victims facing cross-examination by their abuser are an underestimation, given many women are likely to choose to settle rather than face such an ordeal.

There is a two-year review written into this legislation, which will be a welcome test of the adequacy of this funding. Should that review show that $7 million over three years does not stretch far enough, the government of the day must commit to addressing this shortfall. It is well known that Legal Aid services across the country are stretched to their absolute limit. National funding levels are forecast to increase less than five per cent in the four years from 2014-15 to 2019-20. This is barely enough to keep up with demand.

Wherever I go around the country, I always make an effort to visit Legal Aid commissions and community legal centres and let them tell me of the issues that they're facing. Let me tell you, there is nothing left in the tank. That's what I get told, and I hear that regularly. National Legal Aid gave evidence at the inquiry into this bill. They said:

If new funding is not made available to support the scheme, legal aid commissions would be unable to provide legal representation outside existing legal aid funding.

Legal Aid commissions operate within an already stretched funding regime and strict guidelines that prioritise those in our community who are the most vulnerable and in need of assistance. In August, the opposition leader and deputy leader wrote to the Prime Minister urging him to step in and act on the funding that is missing from the bill that we are currently debating. I will read a few lines from that letter:

… as a matter of urgency, we are asking you and the Attorney-General to provide a guarantee of funding before this bill is put to the Senate for a vote.

This is fundamental to making the reform worthwhile.

We have often attended events together where we've both spoken of the need for parliament to do more to eliminate the scourge of family violence from our national life and to deliver better services and resources for survivors and their families.

It's a policy area we all care deeply about.

By allocating a small sum of money alongside an overdue reform, we have the opportunity to make a difference as soon as parliament resumes.

So let's get it done.

Protecting victims of family violence is not a second-order matter for this parliament; it is one of the most important things. With this bill today, although it has taken far too long, we are a step closer. I commend the bill.

Senator McKIM (Tasmania) (11:45): I rise to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. This bill amends the Family Law Act 1975 to provide protections for victims of family violence during cross-examination in family law proceedings.

Direct cross-examination is where one party asks questions of a witness directly, rather than having questions asked by a lawyer. These circumstances usually occur where one of the parties is self-represented. In this particular context, one of those circumstances could be the cross-examination of family violence survivors by people who are alleged to have been their abusers. There is no doubt that that has the capacity to inflict significant extra pain and trauma on survivors of family violence and to reopen wounds that may have been healing over.

So it is important that legislative provisions in this country do everything that they can to protect survivors of family violence from further and, particularly, unnecessary extra pain and trauma. But it is also important that we get the balance right and do everything we can to provide procedural fairness for everyone who is caught up in our legal system, including our Family Court system. This bill proposes a ban on cross-examination in certain circumstances, on direct cross-examination, and that when that ban applies, cross-examination must be conducted by a legal representative.

The question of how this legal representation will work has been the subject of some concern in submissions to the Senate inquiry into the bill. We have seen submissions from various groups and organisations which have expressed some concerns about the balance struck in this bill. I want to refer senators particularly to the submission from the Law Council of Australia, where they observed that proceedings involving direct cross-examinations between perpetrators and victims at trial, whilst raising significant concerns, are of limited number in the family law system. Their submission also noted that there are already significant legislative tools to prevent victims from improper exposure. The Law Council also explained that the right to cross-examine another party is an essential part of any adversarial system of justice, and for that reason it had concerns about the removal of that right.

The Law Council also submitted concerns around what it regarded as the lack of clarity regarding the proposed model for participation of a lawyer to perform the cross-examination; the failure by government to confirm that extra funding would be provided to legal aid commissions to enable them to perform this vital role of cross-examination; the lack of clarity regarding the guidelines that would be applied by legal aid commissions to people who cannot afford a private lawyer and who seek the appointment of a legal aid lawyer; and the uncertainty about what is to occur if a party cannot afford a private lawyer and is not eligible for legal aid. I think it would be reasonable to expect the government to respond to those concerns.

The government has acknowledged the issue of extra funding for legal aid commissions, and that is absolutely critical to ensuring that this legislation actually works on the ground in our family law system. The Australian Greens share the scepticism outlined by Senator Polley, the previous speaker, that the government's commitments to date are enough to ensure that this system is going to work well, properly and fairly for all parties concerned. We urge the government to revisit its current level of commitments to ensure that, in fact, the money is there for legal aid commissions to provide this essential service to ensure that the interests of all parties in our family law system are delivered.

Importantly, parties will be able to engage their own legal representation. It is where a party is unable to obtain private legal representation that they will be able to seek representation through legal aid commissions. I would be particularly interested, Minister Reynolds, in a response from you about the circumstance where someone is ineligible to receive legal assistance from Legal Aid and yet maintains a lack of capacity to employ their own counsel, and whether that matter may be addressed in the guidelines that we hope will be developed by legal aid commissions in this area. It's worth pointing out that the Parliamentary Joint Committee on Human Rights reported that it considers that the bill does not raise human rights concerns.

We also support the two-year review that is included in this legislation. When something like this, which does fundamentally change the way some cases will be dealt with by our family law system, is initiated, it is important that, after an appropriate period, a review is conducted to ensure that the legislation is delivering as intended and that there have not been unintended consequences such as, for example, a reduction in procedural fairness in our Family Court system. In regard to funding increases for legal aid, I can't let the opportunity go by without once again placing on the record, on behalf of the Australian Greens, our community legal sector and the important role that it plays in the provision of legal assistance to so many Australian people and organisations. I urge the government to more adequately fund that sector.

Although this is undoubtedly a difficult issue, and one where we need to do everything we can to ensure that an acceptable balance is reached between protecting the rights of those who have suffered family violence and ensuring that procedural fairness is maintained in Family Court proceedings to the greatest degree possible, we will support this bill through the Senate today.

Senator IAN MACDONALD (Queensland) (11:54): This bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, was reviewed by the Senate Legal and Constitutional Affairs Legislation Committee, which I have the honour to chair. I want to thank the other members of the committee, Senator Pratt, Senator Hume, Senator McKim, Senator Molan and Senator Watt, for their contributions to the report into this bill, a report to the Senate which was unanimous and recommended that, subject to one condition, the bill be passed.

I congratulate the Attorney-General and the Liberal-National government for addressing this issue, which has been an issue for some time. It simply points out yet again that the Liberal and National parties are the parties that don't just talk about the social issues, that don't just talk about victims' rights, particularly for women in these situations, but actually do something about them and introduce legislation to deal with pressing issues. I'm pleased to say that in this instance the government's approach has been followed and adopted by both the Australian Labor Party and the Greens political party. As I mentioned, as a result of that, the committee's report was unanimous.

I do want to thank all of those many people who made very detailed submissions to the committee and those who attended before the committee's public hearing to give evidence. Can I at this time, as we approach Christmas, particularly mention the staff of the secretariat—Dr Sean Turner, Mr Nicholas Craft, Ms Ophelia Tynan, Ms Alexandria Moore and Ms Kate Morris—who did a wonderful job on this report, as usual. I thank publicly the committee secretariat for the work they do throughout the year. My committee seems to get its fair share of work through a number of bills relating to legal and constitutional matters, which means the committee secretariat is always at full speed in dealing with these things. In this instance, as in the case of all committee reports, the committee has done a wonderful job encapsulating many of the important points made by those who submitted in writing and those who gave evidence, and the views of individual senators who constitute part of the committee.

Very briefly, the committee recognises that there exists a significant problem in relation to direct cross-examination of parties in cases where allegations of family violence have been raised. In particular, the committee is alert to the fact that retraumatisation can occur as a result of a victim being cross-examined by the perpetrator. The committee welcomed the bill's attempts to address this situation and prevent further harm to those experiencing family violence. The committee also notes that the intent of the bill was widely supported in the evidence tendered to the inquiry. The committee noted, as Senator McKim also noted, that a critical tension emerged in the evidence—that is, that a balance had to be maintained between procedural fairness and the protection of parties who've been affected by family violence and who've experienced family violence. After carefully considering the evidence presented to the committee in relation to these matters, the committee came to the conclusion that the bill did provide the correct balance that was required.

During all of the committee's inquiry and in the evidence, concerns regarding funding of the bill's proposed measures were a consistent theme throughout the evidence provided. Basically, the bill requires that for people in these situations—where a perpetrator wants to cross-examine them—the rules should be that legal advice is provided so that this doesn't happen. The committee further acknowledged the evidence given that related to litigants who might not qualify for legal assistance and who cannot afford private legal representation. Evidence gathered by the committee suggested that this group of people may be significantly impacted by the bills proposed measures. Again, the committee notes the advice provided by the Attorney-General's Department that the issue is currently being considered. I note the Labor Party tried to make some political capital of this by suggesting that Mr Shorten had written to the Attorney, but Mr Shorten's letter was after the committee had reported and published its recommendation along the same line.

I'm delighted that the committee's first recommendation was that details regarding funding of the measures contained in the bill needed to be made public prior to the commencement of the date of the bill and that that needed to be provided to the Senate. I'm delighted that on 20 November this year Ms O'Dwyer, on behalf of the government, in releasing the women's economic safety package, specifically provided that $7 million would be provided over three years ongoing, commencing from 1 July next year, to ensure that the provisions of this bill are able to be met and that the legal aid is properly funded to do the duty it's required to do under this bill. Those measures in the bill will be reviewed after the two-year period.

I conclude by thanking all of those involved—my colleagues in the Senate, the submitters and particularly the secretariat. I emphasise again my congratulations to the government and the Attorney-General for dealing with this issue which has been around for a long period of time. Minister, my congratulations to you and to the minister whom you represent here for actually doing the work—not just talking about it, not just wringing your hands with regret at what was happening but taking practical measures to support it. I again emphasise that the committee's report was unanimous. I thank the Labor Party and the Greens political party for supporting the committee's recommendations and thank the government for acceding to recommendation 1, regarding legal aid.

Senator CASH (Western Australia—Minister for Small and Family Business, Skills and Vocational Education) (12:02): I rise to sum up the debate on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. I thank all senators for their contributions to the debate on this bill and for their support of this very, very important measure. Before I go into the summing up debate, I understand, Senator McKim, that you had asked a question. I now do have the response to that question. I understand it was in relation to legal aid funding. I am advised that legal representation under the scheme will be available to all parties, subject to the ban on direct cross-examination. Legal aid commissions' usual means and merits tests will not apply. I hope that answers.

Senator McKim: Yes.

Senator CASH: Excellent; thank you very much.

During debate in the House of Representatives the Attorney-General confirmed that the government will ensure adequate funding is provided to legal aid for representation of those affected by the bill. On 20 November 2018, the government announced ongoing funding, initially of $7 million over three years, to establish the new Family Violence and Cross-examination of Parties Scheme. Legal representation under the scheme will be available to all parties, as I've just said to Senator McKim, subject to the ban on direct cross-examination in the bill. The usual legal aid means and merits tests will not apply. Parties may be required to contribute to the cost of their legal representation under the scheme based on their ability to pay, their circumstances and the cost of the matter. The government has worked extensively with National Legal Aid to accurately cost this measure and ensure that the scheme is fully funded.

The government has relied on the Australian Institute of Family Studies research it commissioned on the prevalence of direct cross-examination in family law proceedings involving allegations of family violence to identify the number of people likely to be affected by the ban. Further, the government consulted extensively on the measures in the bill, which strike the right balance between the need to protect victims of family violence from retraumatisation and the need for procedural fairness.

Evidence suggests that safeguards are not applied consistently in family law proceedings involving family violence. This creates a risk of retraumatisation for victims and, consequently, a deterrent from actually engaging in the judicial system. This bill will prioritise the safety of family-violence victims in family law proceedings by requiring that legal representatives conduct cross-examination or by ensuring that other protections are in place. Parties will be able to access the judicial system knowing that there are mechanisms in place to support them through what can be a very, very difficult process.

The government acknowledges that demonstrating the existence of family violence is complicated. Reporting family violence is challenging and, consequently, allegations of family violence are often made for the first time during family law proceedings. The government also acknowledges that each victim of family violence is unique and the effects of that violence will vary from victim to victim. For these reasons, the circumstances in which the legislative ban will apply comprise a variety of indicators that family violence has occurred. The court will also have the discretion to apply the ban where there are allegations of family violence but the prescribed circumstances are not met. If the ban does not apply, the bill will require the court to apply other protections for the victim, such as a video link or screens.

This bill will protect all victims of family violence in family law proceedings that involve allegations of family violence. In short, this bill will ensure that all parties have a fair hearing, sufficient opportunity to make their case and the opportunity to test any adverse evidence presented by the other party. The measures in the bill will be reviewed after two years. This review will include looking at the costs of providing legal representation under the measures in the bill and will inform ongoing funding requirements.

This bill will improve the justice system's ability to support vulnerable witnesses by requiring the use of protections in family law proceedings that involve allegations of family violence. Further, this bill implements a number of expert recommendations and demonstrates the Morrison government's ongoing commitment to addressing family violence. I thank senators for their contribution, and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

The DEPUTY PRESIDENT (12:07): No amendments have been circulated. Does any senator require a committee stage? If not, I shall call the minister to move the third reading.

Senator CASH (Western Australia—Minister for Small and Family Business, Skills and Vocational Education) (12:07): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (12:08): As we have conveyed publicly and to the government, we support the first schedule of the Treasury Laws Amendment (2017 Enterprise Incentives No. 1) Bill 2017, a bill that has sat in the Senate for 18 months. Labor notes the government has circulated an amendment to remove schedule 2, stopping an $80 million hit to the budget that was given no policy justification. Labor will support the amendment and the bill.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Treasury and Finance) (12:09): Firstly, I'd like to thank those senators who have contributed to this debate. The government's National Innovation and Science Agenda is driving the smart ideas that create business growth, local jobs and global success. The passage of this bill will improve the tax system for innovative businesses by better aligning the corporate tax regime with a culture of business investment and development. Improving the tax system for businesses will allow them to grow and become more productive and create jobs.

We are improving the way the tax system applies to innovative companies by changing the test which can deny these companies tax deductions when they have new investors and change aspects of their business. This bill amends the integrity rules which apply when a company has had a change of ownership and wants to use past year losses as a deduction to offset current year profits. The current same business test is overly restrictive and can prevent businesses from remaining agile and acting on emerging changes in the business environment out of concern that they may lose access to tax deductions. The new similar business test relaxes the restrictions and makes it much easier for businesses to change as their environment changes. It encourages innovation by enabling start-up companies to identify new uses for their products and to seek to diversify and grow their income streams. The new test will apply to losses made in income years commencing on or after 1 July 2015.

Tax shouldn't be a consideration when businesses seek to innovate and bring new products to market. It's not in our interests for these businesses to feel prevented from taking new opportunities simply because the tax system will penalise them for it. It distorts decision-making. Loss integrity rules remain important. The new test will not permit trading in losses in circumstances where companies buy up companies which have ceased trading and seek to use their losses as shelter from taxation. The similar business test will still require some continuity between the business carried on in the previous year and in the current year. The new arrangements will assist businesses, particularly smaller businesses, seeking to address problems which have led to losses by removing tax penalties which can arise when these businesses seek to restructure their businesses, ending loss-making activities and adding new profitable ones. The current test acts as a disincentive to change and grow, to take risks and harness new opportunities. These amendments ensure that Australia's tax system supports entrepreneurs and encourages agility. I commend this bill to the Senate.

The DEPUTY PRESIDENT: The question is that this bill be now read a second time.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Treasury and Finance) (12:19): I table a supplementary explanatory memorandum relating to the government amendment to be moved to this bill. Schedule 2 is opposed in the following terms:

(1) Schedule 2, page 27 (line 1) to page 29 (line 23), to be opposed.

The government is tabling a parliamentary amendment in the Senate to remove schedule 2, Intangible asset depreciation, from the Treasury Laws Amendment (2017 Enterprise Incentives No. 1) Bill 2017.

Schedule 2 to the bill contained amendments to the Income Tax Assessment Act 1997, to allow taxpayers to choose to self-assess the effective life of certain intangible depreciating assets, rather than using the statutory effective life for such assets specified in the tax law. By omitting schedule 2 the bill will no longer allow taxpayers to avail themselves of this option. Given the application date of 1 July 2016 and the likely further delay in the passage of the bill, the government decided not to proceed with the measure, in order to eliminate the current uncertainty for taxpayers. The amendment will ensure the remaining measure in the bill will be legislated without further delay.

Senator WHISH-WILSON (Tasmania) (12:20): I won't delay the chamber for very long. I just want to get on record very quickly why the Greens voted against the second reading. Obviously, we don't have any time today to go into this in detail because of the guillotine.

We have significant issues with both parts 1 and 2. The first is the concept that tax losses from previous income years can be carried forward under a 'same business' test. I understand the difference between previous statements around continuity of ownership tests, but we are still not convinced that this is not going to help to supercharge phoenixing in this country. Tax losses themselves can be an asset to many companies, as I'm sure anyone in here who understands finance is aware. I don't see how this doesn't provide a further incentive for phoenixing. So we are not convinced about that. As far as the depreciation of intangible assets goes, we think it's a recipe for disaster to give any leeway or flexibility to companies to set their own depreciation schedules, especially for complicated aspects of depreciation. We didn't feel like we had comfort on either of those two measures and that's why the Greens opposed the second reading of this bill.

The CHAIR: The question is that schedule 2 stand as printed.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Treasury and Finance) (12:23): I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Senator CAMERON (New South Wales) (12:24): The Treasury Laws Amendment (2018 Measures No. 4) Bill 2018 includes measures aimed at addressing the significant problem of unpaid superannuation in Australia. Labor has repeatedly expressed its support for the measures in this bill because they implement several recommendations contained in the Superannuation Guarantee Cross-Agency Working Group's report. Labor will support the passage of the bill.

Senator WHISH-WILSON (Tasmania) (12:24): We had issues with this bill, and in a second I will be moving a second reading amendment. I think it's worth noting this bill has been on the Notice Paper for nearly six months. It's been listed seven times. Why haven't we dealt with this previously? It's obviously important legislation. There is some speculation as to why this hasn't come to the chamber previously. Obviously, our new minister, Mr Robert, from the other place, may not necessarily have been a popular choice within the coalition as the new minister. I understand he was a numbers man for our current Prime Minister and got an elevation following that. He, of course, had a fall from grace previously as a minister, and it's been quite strange that this legislation and some of his other legislation hasn't been able to get through to us here in the chamber. Nevertheless, I wanted to highlight that in my office we had a discussion and we were going to move as an order of business that this legislation be dealt with along with the bill that we've just passed so we could actually bring it on and get it through the chamber.

Nevertheless, I wanted to say, when we go back to the inquiry on this legislation, the Greens did have additional comments. We felt very strongly on a couple of issues. For most Australians, superannuation is compulsory deferred wages. It's intrinsically applied to their employment, and without a job, of course, there would be no superannuation. It follows that unpaid superannuation is not working capital for businesses. It is employee's money that should be disbursed as regularly and consistently as employees turn up for work. It should be that simple. So it makes little sense the payment of superannuation is not legislatively aligned with the payment of wages and that nonpayment of superannuation is not seen as being as heinous as the nonpayment of wages. In the digital age, with fully electronic payrolls and banking, there is no excuse for employers not to pay the Superannuation Guarantee each and every payday.

Whilst this bill makes inroads towards addressing imbalance between the treatment of superannuation and the treatment of wages, it doesn't finish the job. The Australian Greens support a comprehensive range of measures designed to address the mismatch between superannuation and wages. The Senate Economics References Committee 2017 report, Superbad—wage theft and non-compliance of the Superannuation Guarantee, which Senator Ketter, who is in the chamber, was involved in, explored the problem extensively and identified relevant issues. But even it fell short of making some simple and unequivocal recommendations that would help ensure employees get paid their superannuation. We recommended in a dissenting report to that committee that legislative changes be made to require superannuation to be paid in alignment with regular pay cycles or on a monthly basis—whichever is the lesser pay period.

I move:

At the end of the motion, add "but the Senate:

(a) notes that the current requirement for the payment of the superannuation guarantee on at least a quarterly basis creates a significant risk of non-compliance and hinders the prompt detection of superannuation guarantee non-payment; and

(b) calls on the Government to introduce legislation that would require superannuation to be paid in alignment with pay periods stipulated in workplace agreements, or on a monthly basis, whichever is the lesser period".

That's our second reading amendment, and I will conclude on that basis.

Senator SESELJA (Australian Capital Territory—Assistant Minister for Treasury and Finance) (12:29): Just briefly: I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill.

The DEPUTY PRESIDENT: The question is that the second reading amendment, as moved by Senator Whish-Wilson, be agreed to.

Question negatived.

The DEPUTY PRESIDENT: It now being 12.30, the time for the consideration of the Treasury Laws Amendment (2018 Measures No. 4) Bill 2018 has expired. The question is that the bill be now read a second time.

Question agreed to.

Bill read a second time.

The DEPUTY PRESIDENT: The question is that amendments (1) to (3) on sheet LC209, circulated by the government, be agreed to.

Government ' s circulated amendments—

(1) Clause 2, page 3 (table item 13), omit the table item, substitute:

(2) Schedule 9, item 2, page 64 (table item 12.2.5), omit the table item, substitute:

(3) Page 65 (after line 2), at the end of the Bill, add:

Schedule 10—Further deductible gift recipients

Income Tax Assessment Act 1997

1 Subsection 30 ‑25 ( 2 ) (at the end of the table)

Add:

2 Subsection 30 ‑45 ( 2 ) (at the end of the table)

Add:

3 Section 30 ‑90 (at the end of the table)

Add:

4 Section 30 ‑95 (at the end of the table)

Add:

5 Section 30 ‑105 (at the end of the table)

Add:

6 Section 30 ‑315 (after table item 27)

Insert:

7 Section 30 ‑315 (after table item 82A)

Insert:

8 Section 30 ‑315 (after table item 94)

Insert:

9 Section 30 ‑315 (table items 111A, 111AAA and 111AA)

Repeal the items, substitute:

10 Section 30 ‑315 (after table item 121A)

Insert:

Schedule 11—Extending DGR status to entities promoting Indigenous languages

Income Tax Assessment Act 1997

1 Subsection 30 ‑300 ( 2 )

Omit "arts of", substitute "arts or languages of".

Question agreed to.

The DEPUTY PRESIDENT (12:30): The question now is that the remaining stages of the bill be agreed to and the bill be now passed, with amendments.

Question agreed to.

Bill read a third time.

Senator O'NEILL (New South Wales) (12:31): I rise to make a contribution on the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017. At the outset, I indicate that Labor will be supporting this bill. We wish to acknowledge the tireless work of many stakeholders in this space who have fought for so long to see strength in protections for whistleblowers. In particular, Labor wishes to note the indefatigable Professor AJ Brown, Mr Jeff Morris, the Law Council of Australia, Transparency International and the Australian Council of Trade Unions, all of whom led the charge for these changes. It's been a matter of public record that Labor has a very longstanding commitment to enhancing whistleblower protections. In government Labor introduced the landmark Public Interest Disclosure Act 2013 for public sector whistleblowers, and Labor has already committed to introducing tax whistleblower protections.

Earlier in this term of parliament, the Parliamentary Joint Committee on Corporations and Financial Services handed down its report into whistleblower protections. It makes sweeping recommendations to enhance protections for whistleblowers, and I hope to expand on my observations, being the deputy chair of that committee, and our amazing report. Senator Ketter has just left the Senate chamber, but I note he was a very significant participant in the evidence received and the significant recommendations made by that committee.

In response to the report, the government committed to strengthening protections for private sector whistleblowers. But the original bill that they put forward just under one year ago can only be described as weak and ineffective. Their initial proposal failed to enhance protections for whistleblowers in line with that PJC report, which basically gave them a blueprint for excellence. Their proposals did not match the substance and detail of the whistleblower protections included in the Fair Work (Registered Organisations) Amendment Bill 2014, and they were criticised by key stakeholders for falling far short of providing protections that private sector whistleblowers need and deserve. In fact, Professor AJ Brown, a leading expert on whistleblower protections, who gave evidence at the Brisbane hearing—and he is a member of the government's own expert panel—reportedly called the original bill 'a limited step' and 'more a sideways than a forward step on key issues'.

It's taken an extraordinary 12 months for the government to come up with the amendments to strengthen the bare bones bill that they first proposed, and Labor wishes to acknowledge in the course of the development of this matter before us today the hard work of Senators Patrick and Griff to force the government to strengthen this bill somewhat. It's disappointing that the government had to be dragged to action on this important issue. It's a theme that we see time and time again in this place—a Liberal government absolutely desperately resisting action on corporate misconduct. We've got to remember that this is a government that fought against the banking royal commission for 600 days, voting against it 26 times, and led by a Prime Minister who called it a 'populist whinge' and a 'reckless distraction'. Twenty-six times it was opposed by this Prime Minister.

It is disappointing but not surprising that it took so much effort to force this government into action on corporate whistleblowing. As Mr Jeff Morris stated:

I guess I see this as a bit of a parallel thing to the banking royal commission, where the government's finally, kicking and screaming, bowed to the inevitable and had a banking royal commission …

The banking royal commission is shining a light on the widespread misconduct in the financial services industry. As Commissioner Hayne stated in the royal commission's interim report, our banks and financial service providers have been gripped by greed and 'the pursuit of short-term profit at the expense of basic standards of honesty'.

One of the most shocking things about the banking royal commission has been how long this conduct went unchecked and also the sheer number of people who failed to blow the whistle on misconduct and potential crimes that were occurring. Their behaviour didn't happen in a vacuum. It happened in a culture that really did not enhance whistleblowing in any way and, in fact, they acted in a way that opposed the great civic action that whistleblowers undertake.

I want to acknowledge that we've just been joined in the public gallery by none other than Professor AJ Brown. I'd already quoted you twice in this speech before you entered. You have our sincere thanks for your contribution to this as a matter of significant public policy.

One of the best ways to ensure that misconduct is prevented, detected and punished is to have strong, effective whistleblower protections. But, for too long, whistleblowers have been subjected to appalling treatment. Labor has heard stories of whistleblowers who did the right thing and reported misconduct, only to have their careers destroyed by companies that did not want to act, companies that ignored their calls for action, companies that let them be bullied and victimised, companies that made their positions at work untenable and companies that ruined their professional reputations.

The current system operates as an enormous disincentive for whistleblowers to come forward. This is bad not just for those whistleblowers with the personal impact that it has on them. When whistleblowing doesn't occur, we are all harmed. Whistleblowers are absolutely critical to our efforts to crack down on corporate crime and corruption. As the Australian Federal Police argued through the Senate inquiry process into this bill:

If people are discouraged from coming forward to regulators or law enforcement due to lack of protections for their safety, protection from legal action and the personal and financial impacts of disclosing company information, there may be no case to prosecute. Where people do come forward, but are not willing to give evidence, due to lack of protection for anonymity, law enforcement may not have sufficient evidence to prosecute.

There are significant problems facing corporate Australia, from the scandals and rip-offs that have come to light through the banking royal commission to bribery allegations, chronic underpayment of superannuation, tax fraud and other illegal and improper conduct. We need whistleblowers to come forward. We need them to help our regulators and we need them for law enforcement agencies to detect and gather evidence sufficient to punish the unworthy conduct. This is why Labor passionately believes we must do more to protect whistleblowers.

As I said in my opening comments, this bill, as originally drafted, was wholly inadequate. Labor senators outlined a number of concerns about the original bill in our additional comments to the Senate Economics Legislation Committee inquiry. The fundamental problem with the original bill, which has only been partly addressed by the government's proposed amendments, was that it was far too weak to provide whistleblowers with meaningful protection. Mr Jeff Morris said:

It's kind of like just playing a game of paying lip-service to something. What troubles me is the parallel here—that this is called whistleblower legislation but, compared to what it could achieve, this is just a pale shadow of the real thing. … When you look at the recommendations of the PJC, and indeed, the submission of Professor Brown, it's just apparent that there's so much more that could be so easily achieved. What I don't understand is that the benefits that would flow through it are so massive.

For context, for those who might not fully understand why he features so significantly in my speech, Mr Morris was the whistleblower who really brought to light the issues around the Commonwealth Bank and inappropriate business activities that are now a part of the public record here in the country. He certainly featured very strongly in the banking royal commission. And I can remember meeting Mr Morris in my office in the main street of Gosford in my first term of parliament in the other place between 2010 and 2013. Not only was Mr Morris able to outline very, very clearly to me the issues that he was seeing in his workplace, which have since been prosecuted at the level of the royal commission, but he was also able, sadly, to document for me the significant damage to his personal life that resulted from him undertaking this important civic action.

Some of the key measures that are missing from the bill, highlighted by Professor AJ Brown, include a chilling list of things that could have been attended to by this government which isn't willing to go far enough to protect the Australian public. The separation of criminal and civil remedies remains unaddressed. The government had the opportunity to, but didn't, undertake action to provide for civil remedies for detriment flowing from a failure in duty to support or protect. They didn't take up the opportunity to embed a best-practice version of reverse onus of proof or a reasonable filter against individual personal and employment grievances. Neither did they put in a realistic and appropriate protection for third-party disclosure—for example, by media—or public disclosure. This is a missed opportunity to do the best work that could have been done and should have been done in the name of the Australian people, following from the good work of thought leaders in academia and civic leaders who brought forward the issues, and from the work of a joint parliamentary committee that worked very hard to deliver a unanimous report with significant recommendations to guide the action of the government. Despite all that, we are left where we are—a few steps forward, rather than undertaking the whole journey.

The government's proposed amendments do significantly improve the original bill that they offered us a year ago, and, once again, I do wish to acknowledge the work that the Centre Alliance has done to actually force the government to amend this bill. The amendments proposed would clarify the eligible recipients of disclosures, addressing concerns raised by the Law Council of Australia, the Australian Institute of Company Directors and others that the broad array of eligible recipients might place undue burden on internal compliance policies within companies.

The amendments would also replace the protection of emergency disclosures with two categories of protected disclosures: an amended emergency disclosure category based on substantial imminent danger to a person's health or safety or the natural environment and a new public interest limb based on a broad public interest test. These amendments would also change the definition of 'journalist' for emergency and public interest disclosure categories to cover journalists— (Time expired)

The ACTING DEPUTY PRESIDENT ( Senator Leyonhjelm ): Order! Senator O'Neill, you will be in continuation.

The PRESIDENT (15:41): I remind senators that the question may be put on any proposal at the request of any senator. There being none, we'll move on to the discovery of formal business.

Senator URQUHART (Tasmania—Opposition Whip in the Senate) (15:42): At the request of Senator Sterle, I move:

That the following matter be referred to the Rural and Regional Affairs and Transport References Committee for inquiry and report by the second sitting day in August 2019:

The provision of rescue, firefighting and emergency response at Australian airports, with particular reference to:

(a) the current standards applicable to the provision of aerodrome rescue and firefighting services relating to community safety and the emergency personnel safety;

(b) the standards for the provision of emergency response at Australian airports, including emergency medical response and response to structure fires and other incidents;

(c) the comparison of safe systems of emergency response standards and systems of work for firefighting and rescue operations for structure fires, aircraft rescue, emergency medical response and other emergency incidents;