The PRESIDENT (Senator the Hon. John Hogg) took the chair at 09:30, read prayers and made an acknowledgement of country.
That government business order of the day No. 2 (Social Security Legislation Amendment (Fair Incentives to Work) Bill 2012) and No. 5 Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011 and related bills be postponed to the next day of sitting.
Health Insurance Amendment (Extended Medicare Safety Net) Bill 2012
With about one million people each year receiving some cost relief from the safety net federal Labor will not put more pressure on family budgets by taking that assistance away.
As a result of the mess left at the end of the Rudd era, key structural issues in mental health services remain unresolved. There is no commonly agreed service model, particularly for out of hospital and ongoing community care. Due to the unholy horse-trading between the Commonwealth and the states, the first good idea that was discarded was a Commonwealth takeover of the funding of state-based community health.
A whole range of other essential services also awaits clarification as to who has the responsibility to fund or deliver. Much has simply been left for later dialogue or worse, potentially, to be delivered via Medicare Locals at some future (unspecified) date.
… if it doesn't, I'll be the first to call for it to be closed.
This ultimately means an average reduction of between $20,000 and $23,000 in care funding for each affected resident every year …
… … …
The average loss per aged care facility is more than $125,000 each year, with some facing revenue shortfalls of up to $560,000.
Smaller and rural facilities are potentially the most affected.
As running costs continue to rise, aged care providers—unlike most businesses—cannot increase care fees—
That this bill be now read a third time.
Cybercrime Legislation Amendment Bill 2011
With the phenomenal growth of the Internet, cyber crimes have become a matter of national interest … The rapid development of the Internet, with global computer-based commerce and communications that cut across traditional territorial and state boundaries, continue to create a new realm of criminal activities among the cyberspace social, economic and political groupings.
The Senate divided. [10:36]
(The Acting Deputy President—Senator Crossin)
At the end of the motion, add:
but the Senate calls on the Government to initiate a review of the Criminal Code Act 1995 to examine the strengthening of the offences in that Act to ensure that they adequately deal with the issue of misrepresentation of age to minors without reasonable excuse and to investigate the establishment of a type of register to record the names and details of those persons who do misrepresent their age to minors without reasonable excuse.
The Senate divided. [10:43]
(The Acting Deputy President—Senator Crossin)
(1) Schedule 1, item 2, page 4 (lines 14 and 15), omit "or interception agency", substitute "(including an interception agency)".
(2) Schedule 1, items 6 and 7, page 5 (lines 1 to 11), to be opposed.
(3) Schedule 1, item 18, page 10 (line 2), before "interception agency", insert "enforcement agency that is an".
(4) Schedule 1, item 18, page 11 (lines 29 and 30), omit "or interception agency", substitute "(including an interception agency)".
(5) Schedule 1, item 18, page 12 (line 27), before "interception agency", insert "enforcement agency that is an".
(6) Schedule 1, item 18, page 12 (line 33), before "interception agency", insert "enforcement agency that is an".
… any computer data relating to a communication by means of a computer system, generated by a computer system that formed a part in the chain of communication, indicating the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.
(3) Schedule 1, page 20 (after line 6), after item 30, insert:
30A After paragraph 152(a)
Insert:
(ab) to inspect an enforcement agency's records in order to ascertain, so far as is practicable, the extent of compliance with this Chapter;
… the Ombudsman expressed several concerns about the practical operation of the preservation notice scheme.
(7) Schedule 1, page 21 (after line 14), at the end of the Schedule, add:
34 Transitional provision for item 18—ongoing domestic preservation notices
Despite the insertion of section 107H into the Telecommunications (Interception and Access) Act 1979 made by item 18 of this Schedule, an issuing agency may not a give a carrier an ongoing domestic preservation notice under that section before the end of the period that:
(a) starts on the day this Act receives the Royal Assent; and
(b) ends 90 days after that day.
(1) Clause 2, page 2 (after table item 1), insert:
(2) Clause 2, page 2 (table item 2, 1st column), omit "Schedules1 and 2", substitute "Schedule2".
(4) Schedule 1, page 21 (after line 14), at the end of the Schedule, add:
34 Transitional provision—temporary exemption from compliance with preservation notices
(1) The Communications Access Co-ordinator may exempt a carrier from the obligation to comply with sections 107H and 107N of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Schedule) if the carrier makes an application to the Communications Access Co-ordinator for an exemption under subitem (2).
(2) An application must:
(a) be in writing; and
(b) be received by the Communications Access Co-ordinator before the day item 1 of this Schedule commences; and
(c) specify the period (not exceeding 15 months from the day item 1 of this Schedule commences) for which the exemption is requested; and
(d) include an implementation plan setting out:
(i) the changes or developments the carrier considers that it needs to implement in its telecommunications systems and networks in order to comply with domestic preservation notices and foreign preservation notices; and
(ii) the processes and procedures that the carrier proposes to implement to make the changes or to undertake the developments necessary to comply (including, but not limited to, information on build, installation, configuration, integration, delivery and testing); and
(iii) the timeline for implementation of the changes and developments; and
(iv) any other matters that the carrier considers relevant.
(3) In deciding whether to grant a carrier an exemption under subitem (1), the Communications Access Co-ordinator must have regard to the following matters:
(a) any information contained in the exemption application, including the implementation plan;
(b) the technical feasibility of the carrier being able to comply with domestic preservation notices and foreign preservation notices without making the changes or undertaking the developments set out in the carrier's implementation plan.
(4) Subitem (3) does not limit the matters to which the Communications Access Co-ordinator may have regard in determining whether to grant an exemption under subitem (1).
(5) Before making a decision whether to grant an exemption under subitem (1), the Communications Access Co-ordinator must consult with the carrier and the ACMA.
(6) If a carrier makes an application under subitem (2) and the Communications Access Co-ordinator has not made a decision on the application, and communicated that decision to the carrier, within 90 days after receiving the application, the Communications Access Co-ordinator is taken to have granted an exemption to the carrier under subitem (1) for the period specified in the application.
(7) If a carrier makes an application under subitem (2), the carrier is exempt from complying with sections 107H and 107N of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Schedule) for each day falling on or between:
(a) the day item 1 of this Schedule commences; and
(b) the day the Communications Access Co-ordinator makes (or is taken to have made) a decision on the application.
(8) A carrier may make an application to the ACMA for a review of a decision by the Communications Access Co-ordinator to refuse to grant an exemption under subitem (1).
(9) An application for review must be made within 21 days after the Communications Access Co-ordinator notifies the carrier of the refusal to grant an exemption.
(10) The ACMA may affirm, vary or set aside the decision to refuse to grant an exemption.
Just because of Article 17 of the European Convention, requires providers to be able to identify the *path* that data travelled doesn't mean that is feasible, cost effective, nor proportionate.
A simple example. There's a technology called a "load balancer" which service providers use to distribute incoming requests for data/information across a wide range of actual computers. Rather than use a single computer to serve a web page, or deliver email, a provider will use hundreds or thousands, and then put a specialised device, called the load balancer, in front of the thousands of individual machines.
From the consumer/public point of view, there's "one computer"—but for the provider, there are a multitude.
The problem here is that MOST load balancers, out of necessity of the technology, must manipulate the data packet as it arrives from the Internet and is distributed to the thousands of computers inside the provider's domain.
What this means is that the *path* the data took at the point where both traffic and content data may be logged and capable for preservation orders to be executed does not *contain* that vital piece of data.
I ran into difficult issue countless times: The national intelligence service would demand that we provide "thing X" as per the legislation. I would point out that "thing X" did not exist in the Internet context in general, and, for their specific case, the target wasn't using any sort of technology that made that remotely possible. They demanded "thing X" regardless. I said I couldn't deliver as it was impossible. They said (jokingly, I hope) "Fine, we'll just take you out to a field and shoot you then."
I am pretty sure they were kidding, but it's the mentality here that I'm trying to capture. As service providers we respond to the whims of our customers as to the technologies we may or may not choose to implement, but at the end of the day, we may change on a time, as technologies are created well outside of our scope of influence and control. Facebook. Twitter. Google+. None of these were invented here, none of these are controllable by service providers.
In the case of the Cybercrime legislation, the requirement was for providers to, in essence, take what they currently had about a given target and make a one-time snapshot of all data. Anything on the hard drives of the provider, anything in the customer database, anything in the billing systems, and securely store it for the mandated time period.
The amount of work to generate this snapshot of data was phenomenal. Lawmakers (no offence) often have the perception that providers have a single unified "system" and it's as simple as drag-and-drop to put everything you have about a person/target onto a CD.
In reality, there are dozens to hundreds of systems, none of which may be connected to each other, and none of which may have the same way of indexing the data. For example, the mail servers may use "username" or "username@blah.com" or some other key to find/locate stored data—but the billing system may be a unique number such as … And the customer relationship system may be based on some other parameter.
Point is, it was a phenomenal amount of work to FIND the data, taking hours to days depending on what specifically was requested, and even though the data was securely preserved.
It is not reasonable to request nor expect service providers to perform a preservation AS an interception, and the interception legislation does not typically cover the data that preservation orders do.
(8) Schedule 2, item 27, page 29 (lines 9 and 10), omit paragraph 15D(3)(b), substitute:
(b) the offence:
(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979 .
(9) Schedule 2, item 41, page 32 (line 32) to page 33 (line 5), omit paragraph 180B(3)(b), substitute:
(b) the authorised officer is satisfied that the disclosure is reasonably necessary for the investigation of an offence against the law of a foreign country that:
(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979 ; and
(c) the authorised officer is satisfied that the disclosure is appropriate in all the circumstances.
(10) Schedule 2, item 41, page 33 (lines 24 to 27), omit paragraph 180B(6)(a), substitute:
(a) reasonably necessary for the investigation of an offence against the law of a foreign country that:
(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979 ; and
(11) Schedule 2, item 41, page 34 (lines 3 to 6), omit paragraph 180B(8)(a), substitute:
(a) reasonably necessary for the investigation of an offence against the law of a foreign country that:
(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979 ;
(1) Schedule 2, item 41, page 32 (line 3), at the end of subsection 180A(3), add "in relation to an offence that is punishable by imprisonment for at least 3 years".
(2) Schedule 2, item 41, page 32 (line 13), after "country", insert "in relation to an offence that is punishable by imprisonment for at least 3 years".
(3) Schedule 2, item 41, page 34 (line 22), after "country", insert "in relation to an offence that is punishable by imprisonment for at least 3 years".
(4) Schedule 2, item 41, page 35 (lines 1 to 19), omit subsection 180D(2), substitute:
(2) The authorised officer must not authorise the disclosure of the information or documents to the Organisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary for the performance by the Organisation of its functions.
( 3 ) The authorised officer must not authorise the disclosure of the information or documents to an enforcement agency unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:
(a ) for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or
(b ) for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or
(c ) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
( 4 ) The authorised officer must not authorise the use of the information or documents by the Australian Federal Police unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:
(a ) for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or
(b ) for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or
(c ) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
(5) Schedule 2, items 54, 55 and 56, page 39 (lines 5 to 19), omit the items, substitute:
54 Paragraph 313(3)(c)
Repeal the paragraph, substitute:
(c) enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;
(ca) enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;
(cb) assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;
54A At the end of paragraph 313(3)(d)
Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;".
54B At the end of paragraph 313(3)(e)
Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.".
55 Paragraph 313(4)(c)
Repeal the paragraph, substitute:
(c) enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;
(ca) enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;
(cb) assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;
55A At the end of paragraph 313(4)(d)
Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;".
55B At the end of paragraph 313(4)(e)
Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.".
56 Application of amendments made by this Part
(1) The amendments made by items 54, 54A and 54B of this Schedule apply to help given by a carrier or carriage service provider on or after the commencement of this item.
(2) The amendments made by items 55, 55A and 55B of this Schedule apply to help given by a carriage service intermediary on or after the commencement of this item.
(6) Schedule 4, page 42 (after line 8), after item 1, insert:
1A At the end of subsection 177(1)
Add "in relation to an offence that is punishable by imprisonment for at least 3 years".
1B Subsection 177(2)
Repeal the subsection, substitute:
Enforcement of a law imposing a pecuniary penalty
(2) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (theholder ) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(a) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(b) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
Enforcement of a law for the protection of the public revenue
(2A) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (theholder ) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(a) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(b) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
1C At the end of subsection 178(3)
Add "in relation to an offence that is punishable by imprisonment for at least 3 years".
1D Subsection 179(3)
Repeal the subsection, substitute:
(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for:
(a) the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or
(b) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
(7) Schedule 4, item 3, page 43 (lines 7 to 17), omit subsection 181A(3), substitute:
(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).
(3A) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:
(a) to enable the Organisation to perform its functions; or
(b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or
(c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or
(d ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code ).
(8) Schedule 4, item 3, page 44 (lines 3 to 13), omit subsection 181A(6), substitute:
(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).
(7) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:
(a) to enable the Organisation to perform its functions; or
(b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or
(c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or
(d ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).
(9) Schedule 4, item 3, page 45 (lines 3 to 13), omit subsection 181B(3), substitute:
(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).
(3A) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:
(a) to enable the Organisation to perform its functions; or
(b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or
(c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or
(d ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code ).
(10) Schedule 4, item 3, page 46 (lines 1 to 10), omit subsection 181B(6), substitute:
(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).
(7) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:
(a) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or
(b) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or
(c ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:
(i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or
(ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).
The Committee divided. [11:53]
(The Chairman—Senator Boyce)
(5) Schedule 2, item 41, page 32 (after line 13), after paragraph 180A(5)(a), insert:
(ab) if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and
(6) Schedule 2, item 41, page 32 (after line 14), at the end of section 180A, add:
(6) In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (5)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987 .
(7) Schedule 2, item 41, page 34 (after line 22), after paragraph 180C(2)(a), insert:
(ab) if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and
(8) Schedule 2, item 41, page 34 (after line 23), at the end of section 180C, add:
(3) In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (2)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987 .
That the disclosure of telecommunications data to a foreign country in the context of police to police assistance at the investigative stage and in relation to criminal conduct that, if prosecuted, may attract the death penalty, must:
(a) only take place in exceptional circumstances and with the consent of the Attorney-General and the Minister for Home Affairs and Justice; and
(b) each Minister must ensure that such consent is recorded in a register for that purpose.
(12) Schedule 2, item 41, page 36 (lines 7 and 8), omit all the words after "regard", substitute "to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable, having regard to the following matters:
(a) the likely relevance and usefulness of the information or documents;
(b) the reason why the disclosure or use concerned is proposed to be authorised.
(13) Schedule 2, item 50, page 37 (after line 21), after paragraph 186(1)(ca), insert:
(cb) if the enforcement agency is the Australian Federal Police, and information or documents were disclosed, under an authorisation referred to in paragraph (ca), by an authorised officer of the Australian Federal Police during that year to one or more foreign countries:
(i) the name of each such country; and
(ii) the number of disclosures under such authorisations; and
(14) Schedule 2, page 37 (before line 22), before item 51, insert:
50A Subsection 186(2)
After "subsection (1)", insert ", other than the information referred to in paragraph (1)(cb)".
…the bill goes well beyond what is necessary in order to accede to the Convention, and the extensions are highly privacy-abusive.
… as to whether any interference with privacy is justifiable, relevant and useful and the reason why the disclosure or use concerned is proposed to be authorised.
In relation to AFP authorised disclosures, it is reasonable that something more than statistics is provided. The reporting could easily identify the countries that have received historic or existing telecommunications data without jeopardising any investigation or the privacy of any individual. Without such reporting, neither the Attorney-General nor the public will know with which countries the police are cooperating.
(9) Schedule 2, page 39 (after line 19), at the end of the Schedule, add:
Part 4—Refusal of assistance
Mutual Assistance in Criminal Matters Act 1987
57 After paragraph 8(2)(f)
Insert:
(fa) the foreign country's arrangements for handling personal information (within the meaning of the Privacy Act 1988 ) do not offer a level of privacy protection similar to that afforded in Australia; or
(15) Schedule 5, item 2, page 47 (lines 9 to 11), to be opposed.
(16) Schedule 5, page 47 (after line 18), at the end of the Schedule, add:
4 Application of amendments made by items 1 and 3
(1) The amendment made by item 1 of this Schedule applies to acts or things done on or after the day this Schedule commences.
(2) The amendment made by item 3 of this Schedule applies in relation to an authorisation made on or after the day this Schedule commences.
That this bill be now read a third time.
The Senate divided [12:34]
(The Acting Deputy President—Senator Sinodinos)
Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Bill 2012
… in the early days of Federation, the Western Australian economy bore little resemblance to its present prosperous form. Isolated by geography and unable to exploit the free trade between States that resulted from the newly formed Constitution, it became necessary in 1925 for the Commonwealth to establish a Royal Commission into Western Australia's financial disabilities.
As a result, in 1933 the Commonwealth Grants Commission was formed to oversee a more equitable distribution of Commonwealth finances, which resulted in Western Australia being given the status of 'claimant State', and being in receipt of special grants from the Commonwealth for the next 30 years or so.
I am writing to request an investigation into the activities of Mayor Doug Eaton and Councillor Greg Best about potential conflicts of interest between their roles as councillors and their positions as Chairman and CEO of Central Coast Group Training respectively.
I look forward to Wyong Council and Central Coast Group Training agreeing on the best option for a site and the exact model for the youth skills and employment centre in the very near future …
… there is presently insufficient grounds for me to trigger the commencement of the referral process under the Council's code
We do know that the usual communications have occurred between local members of parliament and ministers in regard to progress on projects in their electorates. However—
Rather than having a $5.8 billion program focused predominantly on infrastructure upgrades, it would have been more effective and efficient to use the sustainable diversion limits from the Basin Plan to determine the targets for reallocation in each catchment, use a buyback program as the sole means of easing the transition to those targets, (and) consider establishing a much smaller program to assist irrigators and related communities adjust to a future with less water, through the most effective means available, not just subsidies for irrigation infrastructure.
Many irrigators, irrigation communities and other stakeholders are apprehensive about the Restoring the Balance program and the impact it may have on the livelihoods of communities … These perceptions contrast with the findings of this study and several other recent studies showing that water entitlement trading has delivered benefits to the Basin irrigators and irrigation communities, and that irrigation communities are better off with water trading than they would be without it.
I'm interested in what you said then. At no point did you say that Tasmania's GST share would stay the same. You suggested that there might be a change in that but that there might be other ways of handed out subsidy that helps Tasmania along.
Tasmania, overall, will always, and has always got an exceptionally good funding deal from Federal Liberal Governments … the Tasmanian Liberal Senate team will fight to ensure that Tasmania gets the best possible deal—and the grants commission in the past has ensured that Tasmania gets a fair deal and I believe that that will continue to be the case, but what may well occur is that there be more of a rejig between some of the bigger states.
So that Tasmania would get fewer dollars from the GST pool.
No, no. Not saying that at all.
That's exactly what you just said isn't it? That Tasmania would get fewer dollars from the GST pool.
I do intend, when the opportunity arises, to champion the need for WA to be treated more fairly in that regard.
Australia's terms of trade peaked nearly a year ago, though they remain historically high.
… we want to be … a high wage, high productivity economy, but what we are at the moment is a high cost, low productivity economy and that will kill our competitiveness.
We will seek to achieve an outcome where facilities based competition is restored and enabled, not prohibited and where the provision of network services is undertaken by the private sector, not the government
The National Broadband Network is a great leap backwards to the 1960s; a government controlled telecommunications infrastructure monopoly …
… unrealistic for the states to think they can … capture the revenue stream generated by the Commonwealth's undertaking of a significant and challenging reform.
… at this stage insufficient information to allow proper assessment against the criteria of no impact on species listed under the Environment Protection and Biodiversity Conservation Act or the Flora and Fauna Guarantee Act.
That the Senate take note of answers given by the Minister for Finance and Deregulation (Senator Wong) to questions without notice asked by Opposition senators today.
That the Senate take note of the answer given by the Minister for Finance and Deregulation (Senator Wong) to a question without notice asked by Senator Milne today relating to the minerals resource rent tax.
That Business of the Senate order of the day no. 20, relating to the Tax Laws Amendment (Management Investment Trust Withholding Tax) Bill 2012, be discharged from the Notice Paper .
That Senator Heffernan be granted leave of absence for today being Wednesday, 22 August 2012 for personal reasons.
That the following matter be referred to the Economics References Committee for inquiry and report by 29 October 2012:
The causes of electricity bill increases and options to moderate future increases, with particular reference to:
(a) identification of the key causes of electricity price increases over recent years and in future projections;
(b) whether the current electricity market objectives, and governance and regulation structures have been and will continue to be effective at moderating costs and serving their intended purposes;
(c) the accuracy of past electricity demand projections, the impact of declining wholesale electricity prices and the role of energy efficiency;
(d) barriers to reform created by the National Electricity Market institutions, including state-based regulators, the Australian Energy Market Operator, the Australian Energy Market Commission and the Australian Energy Regulator (AER), and whether the reach of the AER is unnecessarily restricted;
(e) the difference in cost drivers between private and government-owned transmission and distribution businesses and the significant decline in the productivity of these businesses;
(f) the impact of state and federal government measures to reduce greenhouse gas emissions and support renewable energy and energy efficiency in light of market externalities, broader social and economic benefits and whether market objectives should be reconsidered in light of these benefits;
(g) whether or not network reliability standards are unnecessarily high, and whether there are benefits of moving to a more sophisticated probabilistic approach to reliability standards, including more appropriate metrics of value of unserved energy and value of customer reliability;
(h) the effects of the imposition of obligations on electricity distributors for minimum targeted levels of 'demand management' and consumer energy efficiency schemes;
(i) the benefits of decoupling the profits of electricity distributors from the volume of energy supplied;
(j) the materiality of 'merit order' based price reductions in the wholesale energy market from increasing levels of distributed generation;
(k) regulatory and other barriers relating to the connection processes for embedded generators;
(l) the potential to shift from an energy-only market to markets in both energy and capacity, to restrain price volatility, ensure resource adequacy, and foster the development of a broad, competitive mix of generation and demand-side resources;
(m) the potential for increased funding of, and capacity for, consumer advocacy to reduce bills through countering the lobbying of market participants and networks;
(n) the need for a government agency to coordinate and promote energy savings, demand management and distributed generation;
(o) barriers to reform of the energy markets and systems in Western Australia and the Northern Territory; and
(p) any related matters.
That the following matter be referred to the Community Affairs References Committee for inquiry and report by 27 March 2013:
Australia's domestic response to the World Health Organization's (WHO) Commission on Social Determinants of Health report, Closing the gap within a generation , including the:
(a) Government's response to other relevant WHO reports and declarations;
(b) impacts of the Government's response;
(c) extent to which the Commonwealth is adopting a social determinants of health approach through:
(i) relevant Commonwealth programs and services,
(ii) the structures and activities of national health agencies, and
(iii) appropriate Commonwealth data gathering and analysis; and
(d) scope for improving awareness of social determinants of health:
(i) in the community,
(ii) within government programs, and
(iii) amongst health and community service providers.
That:
(a) the Community Affairs Legislation Committee be authorised to hold a private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate on Tuesday, 11 September 2012, from 12.30 pm.
(b) the Economics Legislation Committee be authorised to hold a private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate on Thursday, 23 August 2012, from 3.30 pm.
(c) the time for the presentation of the report of the Education, Employment and Workplace Relations References Committee on its inquiry into the allowance payment system be extended to Thursday, 29 November 2012.
That the Senate calls on the Government to:
(a) examine the new evidence presented by Dr Salisbury, that there are archaeologically and culturally significant but insufficiently documented dinosaur footprint trails right along the Dampier Peninsula coastline, including at the site of the proposed James Price Point gas hub precinct;
(b) commission further science that will identify the extent of the dinosaur footprint fossils in the proposed James Price Point gas hub precinct and the impact that construction of a gas hub would have on these fossils; and
(c) undertake a full environmental, social and heritage impact assessment of the James Price Point gas hub precinct proposal.
The Senate divided. [15:42]
(The Deputy President—Senator Parry)
That the Senate—
(a) notes the Treasurer's promise in the 2011-12 Budget to create half a million new jobs over the next 2 years; and
(b) calls on the Government to keep its promise to create half a million new jobs by 1 June 2013.
The Senate divided. [15:49]
(The President—Senator Hogg)
That the Senate—
(a) believes a free press is central to accountability and transparency in government; and
(b) rejects proposals for new government-appointed arbiters of news media content or government-imposed fines on news media content.
The Senate divided. [15:57]
(The President—Senator Hogg)
These were some of the darkest and toughest days, trying to place traditional owners in the strongest position.
At the time I was proud to have stood with the environmental alliance.
The Kimberley Land Council and TOs negotiated an Act of Parliament to stop any further LNG development on the Kimberley Coast and to limit industrial activity associated with gas processing.
We—
negotiated a regional benefits package for the benefit of all Kimberley Aboriginal people, and compensation for traditional owners.
We supported National Heritage Listing over a large part of the Kimberley.
Yet most of the environmental groups turned against us.
These groups could have assisted us in enforcing the highest environmental standards in order to minimize the impact of the development.
But they turned their backs on us.
They have deliberately ignored the way in which Kimberley Traditional owners have worked to protect the Kimberley Coast.
We have stood side-by-side with environmental groups to minimize the impact of gas development in the Kimberley. But what have they delivered in return? Nothing.
They have no interest in the need of Kimberley Aboriginal people to build a strong culture and a strong economic future.
In fact in some cases they have involved themselves in the politics between indigenous groups and families, and encouraged and promoted division, disempowering traditional owners.
Following feedback from the land councils on these proposals, township leasing is now being pursued as a longer term priority, unless traditional owners initiate discussions.
… it is well known that some policy makers use ABS definitions, both geographical and others, to directly target policy. For example, some organizations paid an additional allowance to staff stationed in 'rural' areas… The validity of using ASGC in this way depends entirely on the relevance of the geographical concept to the desired policy outcomes. It is vitally important that anyone developing policies, funding formulae or intervention strategies understands the alignment, or lack of alignment, between … classification and their business objective.
That the Senate take note of the report.
That Senator McKenzie replace Senator Nash on the Rural and Regional Affairs and Transport References Committee for the committee’s inquiry into the management of the Murray-Darling Basin on Thursday, 23 August 2012.
Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012
Illegal Logging Prohibition Bill 2012
Public Service Amendment Bill 2012
Veterans' Affairs Legislation Amendment Bill 2012
That these bills may proceed without formalities, may be taken together and be now read a first time.
That these bills be now read a second time.
CRIMES LEGISLATION AMENDMENT (SLAVERY, SLAVERY-LIKE CONDITIONS AND PEOPLE TRAFFICKING) BILL 2012
The Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 will protect some of the most vulnerable people in Australian society.
With this bill, the Gillard Labor Government is protecting vulnerable, women and children, and in some cases, men from trafficking and slavery.
For many in our community, the notion of "slavery" evokes nineteenth century images of people sold as chattels, shackled and transported between countries. Tragically, nineteenth century slavery has not been abolished. It has simply taken other forms.
People traffickers recruit, transport, transfer, harbour or receive their victims through force, coercion or other means in order to exploit them. This is the modern day face of slavery.
A common factor of contemporary slavery and trafficking – from forced labour and forced marriage to organ trafficking – is the misuse and abuse of power. And such an abuse has no place here.
I want to send that message loud and clear – to all Australians, to all young people. Duress, violence and intimidation are not acceptable in contemporary Australian society – in any context. Slavery, trafficking and forced marriage are unacceptable. They are very serious crimes.
That's why Labor is bringing forward this bill to improve protections for victims of all forms of slavery and trafficking, and to help law enforcement agencies detect, investigate and prosecute the perpetrators.
Fortunately, slavery and people trafficking are not common in Australia, but the effect on victims is traumatic and can have lifelong consequences.
The bill will strengthen and expand the capability of investigators and prosecutors to combat these crimes by introducing new offences of forced labour, forced marriage, harbouring a person for the purposes of furthering the offence of trafficking and organ trafficking into the Commonwealth Criminal Code.
More specifically this bill will:
The bill will also insert general relevant evidence provisions into both Divisions 270 and 271 of the Criminal Code. These provisions set out a list of matters a court or jury may have regard to in determining whether a victim has been coerced, threatened or deceived (for both Divisions 270 and 271), whether the victim or their guardian consented to the removal of the victim's organs, or whether another person has caused the victim to enter into debt bondage (Division 271).
It will also insert general consent provisions into Divisions 270 and 271 to make it clear that a victim's consent or acquiescence cannot be used as a defence in a proceeding for an offence against those Divisions.
Reducing a person to a state of slavery or servitude often involves suppressing the person's free will and their self-respect, as well as the ability to make decisions for themselves. To allow a defendant to escape liability because his or her offending achieved the desired effect in bringing about these changes in a victim so that they appear to consent would be inexcusable. This provision makes that clear.
These measures will establish a continuum of offences criminalising exploitative conduct ranging from slavery to debt bondage. The definition of 'exploitation' in the Criminal Code will be expanded to cover broader forms of exploitation including debt bondage, forced labour, forced marriage, and all forms of servitude including non-sexual servitude.
Forced labour goes against everything Labor stands for. And that is why we must act to make sure that no one in this country is subject to such a misuse of power. And that no one is able to get away with forcing someone to work in that way.
Labor has a long history of protecting Australia's most vulnerable. We introduced Medicare, we introduced the Sex Discrimination Act and we are introducing a National Disability Insurance Scheme. And this bill continues this tradition.
It was Labor who repealed Tony Abbott's unfair workplace laws.
And it is Labor who is now introducing a new offence of forced labour.
While the majority of identified victims in Australia have been women trafficked for the purposes of exploitation in the sex industry, law enforcement agencies are increasingly identifying both men and women who have been subjected to exploitation in a range of other industry sectors and workplace environments. This bill will introduce a standalone offence of forced labour and expand the existing offences of sexual servitude and deceptive recruiting to ensure they apply regardless of industry.
Where a person who does not consider himself or herself to be free to cease providing or leave the place where they provide labour or services, because of the use of coercion, threat or deception – they will be protected.
Penalties for the existing debt bondage offences will also be increased, reflecting the seriousness of these crimes.
I would like to take this opportunity to say something about one particular aspect of this bill: forced marriage. I am proud to introduce legislation which makes forcing someone into a marriage illegal. It is a serious matter – and should be treated as such. Marriage should be a happy event, entered into freely between consenting adults,
Forced marriage places young people at risk, and can result in harmful consequences including the loss of education, restriction of movement and autonomy, and emotional and physical abuse.
Some critics have asked: "won't this force it underground? "I say to them – it is already underground now – and it can't stay that way. It is the role of the Attorney-General to make it completely clear that in Australia, marriage must be entered into freely, without duress or constraint.
In order to strengthen the law's ability to deal with the perpetrators of slavery and trafficking offences, this bill makes it a crime for another person to assist or further the commission of these offences. The new offence of harbouring will extend criminal responsibility to those who facilitate a slavery or trafficking offence by harbouring, concealing or receiving a victim of a slavery or people trafficking offence. This is to ensure that there is no way for people to avoid prosecution because they did not transport, recruit or transfer the victim into the country themselves.
The bill also creates standalone offences of organ trafficking. Trafficking a person to remove his or her organ is currently criminalised through offences relating to exploitation. This amendment will clarify the circumstances in which an offence of organ trafficking will apply, including situations in which the victim's organ is not ultimately removed.
These organ-trafficking offences will ensure that Australia meets its international obligations and comprehensively criminalises this exploitative conduct.
The bill will increase the capacity of law enforcement agencies to investigate and prosecute perpetrators, and to better support and protect victims. It will assist in addressing the impact of crime by improving the availability of reparation orders to individual victims of Commonwealth offences, including slavery and people trafficking.
In conclusion, the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 was prepared following extensive public consultation.
The Government released two discussion papers on slavery, people trafficking and forced marriage, and also sought submissions on an exposure draft of the bill.
With this bill, the Government will clarify and strengthen the operation of existing slavery and people trafficking related offences to make sure that the perpetrators of these offences and those who facilitate them cannot escape prosecution.
The bill reflects the Government's commitment to doing all it can to prevent slavery and people trafficking. It is easy to say no. It is harder to stand up and do the right thing. And that is what this bill is about. For Labor, it is about protecting the most vulnerable in Australia. It is about getting things done to make this country a fairer, safer place for all of us.
This is the Gillard Labor Government carrying on the great Labor tradition of standing up for the less powerful against the strong and giving a voice to those who cannot always speak up for themselves.
ILLEGAL LOGGING PROHIBITION BILL 2011
Introduction
The Illegal Logging Prohibition Bill (the Bill) responds to a significant issue affecting forest communities around the world.
The environmental and social costs of illegal logging worldwide have been estimated at approximately US$60 billion per annum.
Illegal harvest of timber contributes to environmental degradation through bad practices by illegal loggers. It hampers social development by depriving local governments and communities from the benefits derived from the use of their resource.
Illegally harvested timber also undermines well regulated and sustainable industries, including the Australian industry, by undercutting legally harvested timber products.
This bill will make it a criminal offence to import regulated timber products or process raw logs without undertaking due diligence.
How this b ill was developed
The bill is the product of extensive consultation.
A commitment to prohibit the importation of illegally harvested timber was first presented to the community during the 2007 and 2010 election campaigns. Following the 2007 election, the Labor Government commissioned substantial research to inform policy development including a regulation impact statement; a risk assessment framework; a framework for differentiating legality verification and chain of custody; a generic code of conduct for importers; an economic analysis of the impact of illegal logging; and reports on the small business impacts and social costs of illegal logging.
In December 2010, the Government announced the framework to implement the policy.
On 23 March 2011 the Minister for Agriculture, Fisheries and Forestry tabled an exposure draft, referring it to the Senate Rural Affairs and Transport Legislation Committee for public inquiry.
The Committee released a report on its findings on 23 June 2011, which included seven recommendations. In particular, the committee recommended the government reconsider the role of the timber industry certifiers and the inclusion of a requirement for a mandatory and explicit declaration at the border.
The Government has considered the report, and the dissenting report, and the views of stakeholders about the Committee recommendations in preparing the bill now before the Parliament.
The Government has received representations from the domestic timber industry; state governments, timber and timber product importers, the Australian Conservation Foundation, Greenpeace, the Uniting Church of Australia, the Construction, Forestry, Mining and Energy Union, domestic retailers and exporters of timber products to Australia.
The Government welcomes the strong community interest in this issue.
How the b ill works
The bill focuses exclusively on measures that will restrict the importation and sale of illegally logged timber in Australia. The Government recognises these measures are an essential first step towards a longer term goal of Australian's sourcing timber products from sustainably managed forests, wherever they are in the world.
The bill will regulate timber products at two key points of entry onto the Australian timber market – at the border, for imported timber products, and at timber processing plants where domestically sourced raw logs are processed for the first time. It will restrict the importation and sale of illegally logged timber in Australia in three main ways.
First, the bill prohibits the importation of all timber products that contain illegally logged timber and the processing of domestically grown raw logs that have been illegally harvested. The prohibition enters into force on the day after Royal Assent of this Bill. A maximum penalty of five years imprisonment or 500 penalty units, equivalent to $55,000 for an individual and $275,000 for a corporation or body corporate, or both, applies under this offence. Importers and processors suspected of importing or processing illegal logged timber products would be investigated under the powers of monitoring, investigation and enforcement under Part 4 of the bill and will be prosecuted if they intentionally, knowingly or recklessly import or process illegally logged timber products.
Our own research and the work of the European Union indicate that the best way to minimise trade in illegally harvested product is to implement a due diligence framework. Importers and processors will be required to undertake a process of due diligence on those products to mitigate the risk that the timber has been illegally logged. The level of culpability for these products is negligence which differs from the standard subjective fault elements of intention, knowledge or recklessness. Negligence is an objective fault element which looks to the standard of care that a reasonable person would exercise in the circumstances. Importers of regulated timber products can only be negligent if the prosecution can satisfy the requirements for negligence set out in the Criminal Code 1995.
Second, the bill will require importers of regulated timber products and processors of raw logs to undertake due diligence to mitigate the risk of products containing illegally logged timber.
Timber products, for which due diligence will be required, will be prescribed by regulations that will be developed in consultation with key stakeholders. The government will use a number of inputs when finalising timber products to be prescribed by regulations including an economic assessment of the range of product types, value and volume of timber annually imported into Australia.
Importers of regulated timber products and processors of domestically grown raw logs will be required undertake due diligence to mitigate the risk of importing or processing illegally logged timber. The details of the due diligence process will be prescribed by regulations and will be based on a risk management approach. Criminal offences will apply to importers and processors who do not comply with the due diligence requirements of the bill. There is a maximum penalty of 300 penalty units, equivalent to a fine of $33,000 for an individual and $165,000 for a corporation or body corporate. Administrative sanctions and civil penalties for minor breaches of the legislation will be included in subordinate legislative instruments, such as administrative sanctions for non-compliance with certain due diligence requirements.
Requirements for due diligence will be enacted after two years have elapsed following the commencement of the bill to give industry sufficient time to establish and implement their due diligence systems and processes.
Due diligence will involve a three step process - (i) identifying and gathering information to enable the risk of procuring illegally logged timber to be assessed; (ii) assessing and identifying the risk of timber being illegally logged based on this information, and (iii) mitigating this risk depending on the level identified, where it has not been identified as negligible. The specific measures and procedures underpinning the three steps will be prescribed by regulations to be developed in consultation with stakeholders.
To help meet their due diligence obligations and minimise compliance costs, importers and processors may utilise laws, rules or processes, including those in force in a state, a territory or another country. Individual country initiatives and national schemes, including national timber legality verification and forest certification schemes that can demonstrate that timber products have been harvested in compliance with the applicable laws of the country of harvest may be used, where applicable, as part of an importer's due diligence process.
To enable the Government to enforce compliance with the due diligence requirements, importers are required to complete a statement of compliance with the due diligence requirements of the bill before they complete a customs import declaration at the border. The information to be provided on the statement of compliance and customs import declaration will be prescribed by regulations.
The customs import declaration will include a community protection question asking importers of regulated timber products whether they have undertaken due diligence in compliance with the bill. This will be linked to importers' statements of compliance to provide a legally binding basis for enforcement of compliance with the legislation. The government will monitor the importation of regulated timber products at the border for compliance with the customs declaration, whilst government compliance and investigation officers will carry out border and post-border checks, as required, using the monitoring, investigation and enforcement powers of the bill.
Processors are required to complete a statement of compliance with the due diligence requirements of the bill. As Commonwealth, state and territory laws relating to the legality of timber harvesting in Australia are comprehensive and robust, the Commonwealth Government will seek to align the due diligence requirements of the bill with the pre-harvesting approvals processes of relevant state and territory governments to reduce compliance and administrative costs. The content and form of the statement will be prescribed by regulations.
Third, the bill establishes a comprehensive monitoring, investigation and enforcement regime to ensure compliance with all elements of the Bill including the prohibition and due diligence requirements. Imported timber products may be seized by the Commonwealth without a warrant, under provisions in the Customs Act 1901, whilst goods deemed to be involved in an offence under the Act, consistent with provisions provided in the Customs Act 1901 and the Crimes Act 1913, may be forfeited to the Commonwealth.
The bill also provides requirements for importers and processors to provide statements and declarations of compliance, undertake audits and remedial action, provide reports and other information to the Minister and publish information for compliance and enforcement purposes.
The results of audits will provide a basis for continuous improvement of importers and processors due diligence systems and processes, where deficiencies are identified, and for enforcement purposes by the Commonwealth where breaches are detected. To ensure there are satisfactory levels of transparency of compliance with the due diligence requirements of the bill, importers and processors are required to make an annual statement of compliance. The nature and detail of these statements will be prescribed by regulations to be developed in consultation with key stakeholders. This information may be used by the Commonwealth to publicly report on the performance and level of compliance of importers and processors, consistent with privacy and commercial-in-confidence considerations. The coverage and detail of public reporting requirements will be developed in consultation with key stakeholders.
The bill provides for the government to undertake a review of the first five years of the operation of the Act. This review is to be commenced no later than 12 months after the 5 year period is complete. This provision should ensure ongoing improvement in relation to the operational aspects and effectiveness of the legislative framework.
International alignment
The bill aligns Australia's efforts to combat illegal logging with international initiatives, including legislation already implemented in the United States and developments in the European Union.
It is therefore sensible that this bill should work towards alignment with international regimes.
In establishing the regulations, the government will continue to develop requirements that, to the greatest extent possible, align with the measures being introduced as part of the US Lacey Act Amendments (2008) and the EU Regulation (2010) in order to minimise compliance costs for exporters. This will have the effect of engendering greater cooperation amongst timber importing markets like Australia, Europe and the US and help to facilitate higher compliance amongst exporting countries.
For example, the Government anticipates that certification systems (either third party or government) recognised by EU or the US frameworks will be capable of meeting Australia's requirements.
The bill will also strengthen Australia's leadership position in the Asia–Pacific region on forestry issues and facilitate continued bilateral and multilateral cooperation with developing countries to promote legal and sustainable forest management.
Conclusion
The bill allows the Government to work with key stakeholders to stamp out illegal logging and trade in illegally logged timber products.
An illegal logging working group, comprising industry sectors and non-government organisations is already established to assist the government in this process and help minimise the compliance and administrative costs for both industry and government, whilst driving behavioural change in the global timber trade. The government will continue to work closely with its illegal logging working group and state and territory governments to develop the subordinate legislative instruments required.
The Government appreciates the work of the Senate Committee for Rural Affairs and Transport for its contribution to the development of the Bill. The Government also acknowledges the input of industry, both importers and domestic producers, and other members of the community for their input into the process thus far.
The Illegal Logging Prohibition Bill (2011) delivers on the Government's policy to restrict the importation and sale of illegally logged timber in Australia. It will remove unfair competition posed by illegally logged timber for Australia's domestic timber producers and suppliers establish an even economic playing field for the purchase and sale of legally logged timber products and provide assurance to consumers that products they purchase have been sourced in compliance with Government legislation.
PUBLIC SERVICE AMENDMENT BILL 2012
Mr President, this bill makes some important amendments to the Public Service Act 1999.
On 8 May 2010, the then Prime Minister announced that the Government had accepted all of the recommendations made in the earlier report, Ahead of the Game: Blueprint for the Reform of Australian Government Administration.
This report, 'the Blueprint', outlined a comprehensive reform agenda to position the Australian Public Service to better serve the Australian Government and the Australian community. It is an agenda that requires modernisation of the Public Service Act, bringing it into line with contemporary needs.
The amendments in the bill will strengthen the management and leadership of the public service and help to embed new practices and behaviours into its culture. The bill recognises that the delivery of high quality services and policy advice requires effective and committed leadership, supported by a public service that is efficient, driven by its desire to serve the community, and contemporary in its outlook.
Strengthen the leadership of the APS
Part 1 of Schedule 1 to this bill provides for a clearer articulation of the roles and responsibilities of Secretaries, particularly in relation to their stewardship of the Australian Public Service. The revised descriptions clarify the service and performance expected of Secretaries and strengthen Secretaries' accountability to Ministers in performing their roles and discharging their responsibilities.
The amendments restore the arrangements which operated prior to 1999. The amendments provide for appointment and termination decisions of Secretaries to be made by the Governor-General, on the recommendation of the Prime Minister, following receipt of a report from the Secretary of the Prime Minister's Department in consultation with the Public Service Commissioner.
The minimum length of a Secretary's appointment will be five years—unless the Secretary requests otherwise. This provides for continuity of leadership and strengthens the integrity of the appointment process.
Part 2 of Schedule 1 to this bill creates the Secretaries Board, comprised of the Secretary of each Department and the Commissioner. The Secretaries Board, which replaces the Management Advisory Committee, will identify strategic priorities for the APS and take responsibility for its stewardship.
Part 3 of Schedule 1 to this bill amends the role of the Senior Executive Service to strengthen APS leadership by expanding the descriptors of Senior Executive Service leadership responsibilities, supporting collaboration and the development of whole-of-government responses to issues.
Modernise and clarify the functions of the Public Service Commissioner
Part 4 to Schedule 1 of this bill modernises the functions of the Public Service Commissioner.
The bill specifically recognises the Commissioner's role as the central authority for APS workforce development and reform, an authority that will take a leading role in ensuring that the Service has the organisational and workforce capability to meet future needs.
The Commissioner will have three broad functions:
A new function will allow the Commissioner to undertake those tasks and responsibilities which are issue-specific or which may change over time.
Review and inquiry functions
The Commissioner has extensive powers to undertake reviews or inquiries which were introduced with the 1999 Act, including in certain circumstances the ability to exercise the same information-gathering powers as are available to the Auditor-General. The bill provides more detail on how reviews may be initiated and reported.
In particular, the Commissioner will be able to undertake a 'systems review' or a 'special review' in specific circumstances.
'Systems reviews' will allow the Commissioner to review and report on the management and organisational systems, structures and processes of an APS body, or the functional relationship between two or more bodies. These powers do not derogate from the inquiry functions of other statutory officers and it will be a matter for Government as to who is the most appropriate entity to conduct a review.
By contrast, 'special reviews' will be able to be initiated only at the direction of the Prime Minister. While it is expected that special reviews will be uncommon, the bill makes clear such a review is available to Government in those rare circumstances where the public interest demands it. The Commissioner's information-gathering powers under section 43 of the Act will be available for special reviews.
To augment the capacity of the Commissioner to conduct reviews and call on specialised knowledge, the bill provides for the appointment of Special Commissioners by the Governor-General to assist in undertaking all or part of a systems or special review and report through the Commissioner.
Agency Head Code of Conduct
Under the Public Service Act, the Commissioner has a specific power to inquire into alleged breaches of the Code of Conduct by Agency Heads and report to the appropriate authority on the results of such inquiries.
Unlike the discretion available to Agency Heads in respect of APS employees, there is little scope for the Commissioner to conduct a preliminary assessment before launching a formal inquiry. To remedy this, the bill provides a regulation-making power to prescribe the circumstances in which the Commissioner may exercise discretion to decline to conduct an inquiry into alleged breaches of the Code by Agency Heads, or to discontinue an inquiry without invoking the reporting requirements. This element of discretion is desirable to deal with trivial or futile matters or matters that have previously been dealt with.
APS employee Code of Conduct
Currently, the responsibility for investigating and determining breaches of the Code of Conduct by APS employees rests with Agency Heads. On occasion Agency Heads have wanted the Commissioner to conduct an independent investigation into suspected misconduct by one or more of their own employees. This is typically when public interest concerns raised by a particular allegation make it desirable that matters are investigated and determined by an authority that is both expert and independent.
The bill proposes that the Commissioner will have a new function to determine alleged breaches of the Code by APS employees. This function will be triggered when requested by the Agency Head or by the Prime Minister. The Commissioner may decline to conduct such an investigation.
Revise the APS Values and introduce APS Employment Principles
Part 6 of Schedule 1 to this bill revises the APS Values and introduces a set of APS Employment Principles.
The Values and the Employment Principles are statements about the essential character and philosophy of the APS. They define what the APS is, and how it should operate.
The proposed Values—that the APS is Committed to Service, is Ethical, Respectful, Accountable and Impartial—are more succinct and memorable, easy to understand, and will help the Service to create an ethical, high performance culture.
The Values and Employment Principles together capture the essence of the existing 15 Values, blending contemporary ethics with enduring principles of public administration that go to the heart of the Westminster model. No important concepts have been lost.
Agency Heads and APS employees will, by law, be required to uphold the Values and the Employment Principles. Agency Heads and Senior Executive Service employees will also be required to promote them, reflecting the key responsibility that they have as leaders within their agencies to set the tone for the right culture.
Technical and operational amendments
The bill also contains a number of other, largely technical, amendments aimed at more effective management of the Service. These amendments reflect the experience of working with the Act over the last 12 years.
Code of Conduct
Part 7 of Schedule 1 of this bill relates to the handling of misconduct in the Australian Public Service.
The bill provides for amendments to the Code of Conduct so that its first four elements will apply when there is a direct connection with the employee's employment.
Other amendments to the Code or provisions for handling misconduct will allow agencies to deal more effectively and efficiently with other unacceptable behaviour.
The bill also provides for a misconduct investigation to be finalised after an employee has separated from the APS, providing more certainty for agencies and making it less attractive for employees who are under investigation to resign before a finding is made, as many employees in this situation currently do.
Whistleblower reports
The Act currently provides protection for whistleblowers in the APS. The Regulations provide the framework under which whistleblower reports are handled.
The bill makes two small amendments to the scheme. It provides a specific regulation making power and allows for matters to be excluded from inquiry, including those that relate to an employee's own employment. Such complaints are better directed to the existing Review of Action scheme.
Temporary APS employees
Part 10 of Schedule 1 of this bill simplifies the operation of the non-ongoing employment provisions. The Act will provide that regulations may prescribe, rather than limit, the circumstances under which a non-ongoing employee may be engaged, and may prescribe the grounds for the termination of employment of non-ongoing employees.
The principle that ongoing employment is the usual basis for engagement will be retained.
Machinery of Government changes
Part 11 of Schedule 1 of the bill improves the operation of the Machinery of Government provisions by providing the Commissioner with discretion to determine whether employment-related matters can continue following a Machinery of Government change.
The bill also makes clear that the power to move staff out of the APS in order to give effect to a Machinery of Government change covers those non-APS Commonwealth bodies that do not have separate legal identity, such as the Australian Federal Police.
Confidentiality of information, privacy and immunity from suit
Part 12 of Schedule 1 to this bill provides protections for an Agency Head or APS employee who provides information voluntarily to the Commissioner or Merit Protection Commissioner in the course of the exercise of their review and inquiry functions.
Part 13 of Schedule 1 to this Bill moves the immunity from suit provisions from the Regulations to the Act and provides consistency in the functions which attract immunity.
The act will provide that regulations may be made to authorise by law the use, as well as disclosure, of personal information in certain circumstances. This reduces the uncertainly expressed by many APS agencies as to their capacity to use personal information relating to employees for a range of purposes in managing their staff.
Legislative instruments
Part 14 of Schedule 1 to this bill rationalises the subordinate instruments under the Act. The Commissioner's direction-making power has been expanded to allow directions on employment matters relating to all APS employees, such as engagement, promotion, redeployment, mobility, training schemes and termination.
The matters set out in the Prime Minister's Public Service Directions will be moved to the Commissioner's Directions under the consolidated power. The Commissioner's Directions will be legislative instruments, registered in accordance with the Legislative Instruments Act 2003, correcting an oversight when that Act was introduced.
The Classification Rules, which prescribe a Service-wide framework for the classification of APS employees, will be made by the Public Service Commissioner, reflecting the movement of this function from the Department of Education, Employment and Workplace Relations to the Commission in July 2010.
Miscellaneous amendments
Parts 9 and 15 of Schedule 1 to this bill improve the operation of the act by making a range of other minor technical amendments.
Schedule 2 to this bill repeals the Public Employment (Consequential and Transitional) Amendment Act 1999. This act was the accompanying legislation to the current act when it was introduced in 1999 and is now largely redundant although some provisions will be retained through regulations.
Schedule 3 to this bill makes a number of consequential amendments to other acts.
Schedule 4 to this bill puts in place a number of application, saving and transitional provisions to ensure the continuity of certain matters, such as investigations, reviews or inquiries in progress.
Summary
In summary, this bill responds to the reform agenda of the Blueprint by implementing significant reforms relating to the leadership of the Australian Public Service.
It is important that the public service legislation supports a Service which is fit for purpose, meeting the legitimate needs of the Government of the day both now and into the future.
This bill provides for a modern, contemporary employment framework that will allow greater agility and responsiveness by the APS to the community and government. It will result in greater efficiency and more effective use of Commonwealth resources. It will also facilitate and accelerate the cultural shift towards operating more effectively as 'One Australian Public Service'.
VETERANS' AFFAIRS LEGISLATION AMENDMENT BILL 2012
I am pleased to present legislation that will give effect to a number of measures that will improve or clarify services and benefits to the veteran and Defence Force community and make various amendments to update Veterans' Affairs and related legislation.
Benefiting the veteran and Defence Force community are amendments to the Income Tax Assessment Act that will exempt from income tax, payments made under the new Veterans' Pharmaceutical Reimbursement Scheme.
The Scheme commenced on 1 January 2012 and the first payments will be made in the first quarter of 2013.
The Scheme provides for the reimbursement of out-of-pocket expenses incurred by eligible veterans and members in the purchase of pharmaceuticals.
The implementation of this Scheme has been achieved through amendments to the legislative instruments that govern the Repatriation Pharmaceutical Benefits Scheme under the Veterans' Entitlements Act and the MRCA Pharmaceutical Benefits Scheme under the Military Rehabilitation and Compensation Act.
Amendments are required to the Income Tax Assessment Act to grant payments under the Veterans' Pharmaceutical Reimbursement Scheme, the necessary income tax exempt status.
These amendments have the added benefit of also clarifying the income tax exempt status of other reimbursements that may be made under the Repatriation Pharmaceutical Benefits Scheme and the MRCA Pharmaceutical Benefits Scheme.
It is expected that approximately 50,000 veterans and members will benefit from the Veterans' Pharmaceutical Reimbursement Scheme.
Further amendments to the Income Tax Assessment Act will make it clear that treatment costs reimbursed under the Australian Participants in British Nuclear Tests (Treatment) Act are income tax exempt.
The Australian Participants in British Nuclear Tests (Treatment) Act provides treatment and testing for cancer for eligible nuclear test participants.
In some circumstances, treatment costs incurred by an eligible participant may be reimbursed.
Changes in the bill to Veterans' Affairs legislation will clarify the approval and authorisation arrangements for travel for treatment for eligible persons and attendants under the Veterans' Entitlements Act and the Australian Participants in British Nuclear Tests (Treatment) Act.
In 2010-11 the Department processed over 155,000 claims for reimbursement for travel expenses for treatment purposes.
Travel expenses can include costs for transport, meals and accommodation for eligible persons and where necessary an attendant to accompany the eligible person.
Amendments to the Veterans' Entitlements Act and the Australian Participants in British Nuclear Tests (Treatment) Act will make it clear that Repatriation Commission approval or authorisation for such travel may be given before or after the travel has been undertaken.
Further beneficial amendments in the bill will enable special assistance under the Veterans' Entitlements Act and the Military Rehabilitation and Compensation Act to be delivered in a more timely manner.
This will be achieved by enabling special assistance to be provided by legislative instrument instead of by regulation.
The result will be a more streamlined and therefore speedier process for providing special assistance to veterans, members, former members and their dependants.
The remaining amendments in the bill will make minor changes to clarify and update Veterans' Affairs legislation and further align the Veterans' Entitlements Act with the social security law.
These changes are part of the Government's ongoing commitment to continually review, update and improve the services and administration of benefits to our current and former military personnel and their families.
That the Small Pelagic Fishery Total Allowable Catch (Quota Species) Determination 2012, made under subsection 17(6)(aa) of the Fisheries Management Act 1991 and under section 17 of the Small Pelagic Fishery Management Plan 2009, be disallowed.
That this House
1. Notes that:
(a) The growing community concern and disquiet over the potential arrival of the super trawler, FV Margiris, to operate in Australian waters to fish the small pelagic fishery;
(b) The questions raised regarding the potential impact of the increased quota of 18, 000 tonnes per annum on local fisheries;
(c) This is a matter for Federal authorities who are responsible for access to ports, fishing in Commonwealth waters and the setting of quota in those waters;
(d) That the Tasmanian local recreational and commercial fishing communities remain strongly opposed to the FV Margiris operation and have held large protest rallies around the state to stress their concerns;
(e) Both the Tasmanian Greens and the Tasmanian Liberal parties have publicly voiced their respective opposition to this proposed super trawler, with the shared concern that the Federal Labor Minister, Senator Joe Ludwig, has failed to demonstrate that this commercial fishery activity will be sustainable and will not cause localised depletion off Tasmania;
2. Requests the Speaker to write to Senator Ludwig, to advice him that the House will not support the FV Margiris operation in Australian waters and waters around Tasmania until the Parliament can be satisfied that the vessel and proposed harvest strategy will not adversely impact on the recreational fishery.
3. The House recognises the need for a balanced approach between the needs of a sustainable commercial fishing industry, access for recreational fishers and appropriate marine conservation outcomes.
Fishing should be spread out so as to avoid localised depletions, especially in relation to any local ecological 'hotspots' where there is particularly strong local dependency between predators and prey (e.g. in the vicinity of some seabird rookeries).
However given uncertainties about detailed movement patterns of several of the species targeted in the SPF, it would be prudent to distribute catches to minimise the chance of local depletion. This is consistent with global scientific advice on best practice for managing such species.
Localised depletion is evaluated as unlikely with the proposed harvesting fractions applied in the SPF because most small pelagic species, and their predators, are highly mobile and local areas replenish quickly provided the overall stocks are not depleted. This has been the experience with small pelagic fisheries that have been similarly managed in Australia.
AFMA has committed to 100% observer coverage to monitor by-catch and other aspects of fishery operations for the factory trawler.
Reviewing the Small Pelagic Fishery science has heightened our concerns and raised more questions without answers.
Recreational fishers call on Minister Ludwig to not allow industrial scale fishing operations to occur in the Small Pelagic Fishery and address the significant public concerns surrounding the risks of local area depletion on fish stocks.
Localised depletion is evaluated as unlikely with the proposed harvesting fractions applied in the SPF because most small pelagic species—
However given uncertainties about detailed movement patterns of several of the species targeted in the SPF, it would be prudent to distribute catches to minimise the chance of local depletion. This is consistent with global scientific advice on best practice for managing such species.
Several groups of scientists worldwide, including from CSIRO and IMAS, have recently examined the effects of fisheries on small pelagic species (also sometimes called forage fish) and how they should be managed so as to avoid undesirable flow-on effects of these fisheries on the food web and ecosystem.
There is now clear and widely agreed understanding about how these fisheries should be managed, and this understanding has a strong scientific basis—
The demand that there is scientific knowledge about the detailed local movement dynamics of fish stocks is an example of the approach that we must know everything about everything before we can do anything.
I am just as deaf as I am blind. The problems of deafness are deeper and more complex, if not more important, than those of blindness. Deafness is a much worse misfortune. For it means the loss of the most vital stimulus—the sound of the voice that brings language, sets thoughts astir, and keeps us in the intellectual company of man.
Blindness separates us from things but deafness separates us from people.
Children who hear acquire language without any particular effort; the words that fall from others' lips they catch on the wing, as it were, delightedly, while the little deaf child must trap them by a slow and often painful process … Gradually from naming an object we advance step by step until we have traversed the vast distance between our first stammered syllable and the sweep of thought in a line of Shakespeare.
It was a crucial moment when I wasn't sure whether Japan could continue to function as a state.
I am speaking to you today because of an article I read in the West Australian newspaper dated 26th January 2012. The article brought my attention to the possible extinction of the Sumatran elephants within the next 30 years. I was very saddened I was very saddened to learn that the elephant's lives are threatened and felt that I would like to try and help them to survive.
I would like to ask the Australian Government to encourage the Government of Indonesia to prevent the illegal destruction of Tesso Nilo National Park, in Riau Province. Tesso Nilo is one of the last homes of the Sumatran elephant (and Sumatran Tigers), but this supposed protected area is rapidly disappearing as a result of illegal logging which is being destroyed for timber, palm oil and the encroachment of agricultural plantations that surround the park.
I was lucky enough to spend some time with these elephants last year whilst on a trip in Indonesia. I was able to feed them, have a ride on them and even gave one a shower, which is not that easy. I am trying to save as many of these elephants as I can, there are only Two Thousand Six Hundred left in the wild. I am hoping that you will want to be part of this project.
I have also spoken to Senator Louise Pratt, who has kindly agreed to speak to you today on my behalf.
I believe that Government has a responsibility to preserve these amazing animals and their habitat.
In the words of Michael Jackson, let's 'Heal the world, make it a better place.'
I thank you for taking the time to listen to Senator Louise Pratt today and hope I have inspired you to help me.
With reference to the Fair Work (Registered Organisations) Act 2009:
(1) Is the Act operating as intended?
(2) Have any problems with the Act been detected; if so, when were they first identified?
(3) Has the Minister considered any amendments to the Act; if so:
(a) on what exact date/s was consideration given; and
(b) what was the Minister’s decision?
(4) Have former Ministers Evans, Crean or Gillard considered any amendments to the Act?
(5) Has the Government received any advice from the department or Fair Work Australia that there are problems with the Act; if so, on what date/s was the advice received?
(1) Is the Act operating as intended?
(2) Have any problems with the Act been detected; if so, when were they first identified?
The Fair Work (Registered Organisations) Act 2009 (the Act) essentially mirrors Schedule 1 to the Workplace Relations Act 1996. While the Act and its predecessor, Schedule 1, generally operated as per Parliament’s original intention, the recently concluded investigations by Fair Work Australia into the Health Services Union have highlighted a number of areas where the Act could be strengthened.
The Government has identified that the Act could be strengthened to:
(3) Has the Minister considered any amendments to the Act; if so:
(a) on what exact date/s was consideration given; and
(b) what was the Minister’s decision?
The Government introduced the Fair Work (Registered Organisations) Amendment Bill 2012 (the Bill) on Thursday 31 May following consultation with key stakeholders at the meeting of the National Workplace Relations Consultative Council on 25 May. The Bill was passed on 26 June 2012. It implements substantial reforms in the areas identified in the response to question 2.
(4) Have former Ministers Evans, Crean and Gillard considered any amendments to the Act?
Other than minor amendments to ensure Schedule 1 aligned with the Fair Work framework and the amendments referred to in question 3, the legislation governing registered organisations has not been amended since 2002 and consideration has not previously been given to broader amendments.
(5) Has the Government received any advice from the department or Fair Work Australia that there are problems with the Act; if so, on what date/s was the advice received?
As previously noted, the recently concluded investigations by Fair Work Australia into the Health Services Union have highlighted a number of areas where the Act could be strengthened. Other than in that regard, neither the Department or Fair Work Australia have provided any advice regarding problems with the Act.
With reference to the appointment of Mr Bernie Riordan to Fair Work Australia (FWA):
(1) With whom did the Minister or the Minister's office discuss the issue of the civil case outstanding against Mr Riordan.
(2) When was the Minister made aware that the case had settled.
(3) Was there any delay on the announcement of the appointments to FWA as a result of the outstanding case.
(1) The Minister's Office discussed the case with Mr Riordan.
(2) The Minister's Office was made aware on 22 February 2012 that an application for the case to be discontinued was to be filed by the applicant on 23 February 2012.
(3) The appointment of Mr Riordan, and also the president and a number of other members of Fair Work Australia, were announced on the day they were made, 24 February 2012.
With reference to the decision of Senior Deputy President (SDP) Richards of Fair Work Australia, in the case CFMEU v. Brookfield Multiplex Australasia, in which SDP Richards found it was not permissible to include a contractors clause in an enterprise agreement, does the Government agree with the decision.
As the decision is currently under appeal, it would be inappropriate to comment on the decision.
(1) Was legal advice provided to Cabinet prior to the 7 June announcement?
(2) Has the Government received a claim for compensation as a result of its decision to impose a full ban on live export cattle to Indonesia?
(3) (a) Why was the draft advice never finalised; and (b) was this because Cabinet made a decision prior to any potential finalisation of the advice?
(1) It is a long standing practice of successive governments not to disclose cabinet deliberations.
(2) Please refer to evidence given at May Senate Estimates.
(3) (a) The department was in the process of changing legal advisors at the time. The request for advice overlapped with the department's transition to the new legal service provider. Finalisation was not requested because the department's service provider had changed.
(b) It is a long standing practice of successive governments not to disclose cabinet deliberations.