The PRESIDENT (Senator the Hon. Stephen Parry) took the chair at 12:30, read prayers and made an acknowledgement of country.
DOCUMENTS
Interactive Gambling Amendment Bill 2016
(1) Schedule 1, item 6, page 5 (after line 8), at the end of section 3, add:
(2) Schedule 1, item 7, page 5 (after line 12), after the definition of ACMA official , insert:
betting limit , in relation to a period, means the total maximum amount nominated by an individual that he or she may bet using a restricted wagering service during the period.
(3) Schedule 1, item 7, page 5 (after line 14), after the definition of carriage service, insert:
category A document , in relation to an individual, means any of the following:
(a) a licence or permit issued in the name of the individual;
(b) a passport issued in the name of the individual;
(c) a birth certificate in the name of the individual;
(d) any other document in relation to the individual that is recognised as proof of identity under a law of the Commonwealth, a State or a Territory.
category B document , in relation to an individual, means any of the following:
(a) a credit card, debit card or other automatic teller machine card that has the name and signature of the individual;
(b) a Medicare card issued in the name of the individual;
(c) a passbook issued in the name of the individual by an ADI (within the meaning of the Banking Act 1959 );
(d) a statement of account issued for a utilities or rates account that:
(i) was issued in the previous 12 months; and
(ii) includes the name and address given by the individual.
(4) Schedule 1, item 7, page 5 (after line 18), after the definition of civil penalty provision , insert:
credit has the meaning given by section 11A.
(5) Schedule 1, item 7, page 5 (after line 26), after the definition of Federal Circuit Court, insert:
G classified , in relation to a television program, means classified G in accordance with whichever of the following industry codes of practice included in the register under section 123 of theBroadcasting Services Act 1992 is relevant:
(a) the Commercial Television Industry Code of Practice;
(b) the Subscription Broadcast Television Codes of Practice;
(c) the Subscription Narrowcast Television Codes of Practice.
(6) Schedule 1, item 9, page 6 (before line 5), before the definition of personal information , insert:
micro betting means betting that relates to a horse race, a harness race, a greyhound race or a sporting event and either:
(a) the bet is:
(i) on the outcome of the race or event; and
(ii) placed, made, received or accepted after the beginning of the race or event; or
(b) the bet is on a contingency that may or may not happen in the course of the race or event.
personal details , in relation to an individual, means:
(a) the individual's name, residential address, telephone number, email address, date of birth and gender; and
(b) any other information of a kind prescribed by the regulations for the purposes of this definition that identifies the individual.
(7) Schedule 1, item 12, page 6 (before line 22), before the definition of regulated interactive gambling service , insert:
protected information means personal details or other personal information to the extent that this information:
(a) is obtained under, or in accordance with, this Act; or
(b) is derived from a record of information that was made under, or in accordance with, this Act; or
(c) is derived from a disclosure or use of information that was made under, or in accordance with, this Act.
Register means the National Self‑exclusion Register kept under section 61HA.
(8) Schedule 1, item 12, page 6 (after line 23), after the definition of regulated interactive gambling service, insert:
Regulator means the Interactive Gambling Regulator established under section 61JA.
(9) Schedule 1, item 12, page 6 (after line 25), after the definition of Regulatory Powers Act, insert:
restricted wagering service means a gambling service that:
(a) is provided to customers using any of the following:
(i) an internet carriage service;
(ii) any other listed carriage service;
(iii) a broadcasting service;
(iv) any other content service;
(v) a datacasting service; and
(b) relates to the placing, making, receiving or acceptance of bets on, or on a series of, any or all of the following:
(i) a horse race;
(ii) a harness race;
(iii) a greyhound race;
(iv) a sporting event.
(10) Schedule 1, item 17, page 7 (after line 15), after the definition of unlicensed regulated interactive gambling service , insert:
verified has the meaning given by section 11B.
(11) Schedule 1, page 16 (after line 12), after item 32, insert:
32A After section 11
Insert:
11A Meaning of credit
For the purposes of this Act, credit is provided by a restricted wagering service if under a contract or other arrangement:
(a) payment of a debt owed by one person to another is deferred; or
(b) one person incurs a deferred debt to another.
11B Meaning of verified
For the purposes of this Act, an individual's identity is verified for the purposes of creating an account, or otherwise facilitating the placing of bets, with a restricted wagering service, if:
(a) the service is given the originals or certified copies of either:
(i) 2 category A documents, each of a different kind, identifying the individual; or
(ii) one category A document and 2 category B documents, each of a different kind, identifying the individual; and
(b) the personal details contained in those documents correspond to the personal details provided by the individual for the purposes of creating the account, or otherwise facilitating the placing of bets.
32B After Part 1
Insert:
Part 1A—Offence of failing to train gambling service employees
14A Offence of failing to train gambling service employees
(1) If:
(a) a person provides a gambling service; and
(b) either:
(i) the person is a corporation to which paragraph 51(xx) of the Constitution applies; or
(ii) the service is provided to customers using an internet carriage service; and
(c) the person has employees who have direct contact in the course of their employment with individuals who use the service;
the person must ensure that each such employee is provided with the information, training or instruction prescribed by the regulations for the purposes of this subsection.
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person fails to comply with the requirement.
Penalty: 120 penalty units.
Regulations
(3) Regulations made for the purposes of subsection (1) may include:
(a) information, training or instruction relating to the following:
(i) recognising problem gambling behaviour;
(ii) assisting individuals to access information regarding the Register and other services or programs to deal with problem gambling;
(iii) dealing with individuals who have identified themselves as having a gambling problem; and
(b) when such information, training or instruction must be provided.
(12) Schedule 1, page 22 (after line 24), after item 66, insert:
66A At the end of Part 3
Add:
Division 4—Injunctions
31A Injunctions
(1) The Federal Circuit Court may, on application by the Regulator, grant an injunction referred to in subsection (2) if the Court is satisfied that:
(a) an ADI (within the meaning of the Banking Act 1959) facilitates transactions in relation to a gambling service; and
(b) the gambling service is a prohibited interactive gambling service.
(2) The injunction is to require the ADI to take reasonable steps to prohibit transactions in relation to the prohibited interactive gambling service.
Parties
(3) The parties to an action under subsection (1) are:
(a) the Regulator; and
(b) the ADI; and
(c) the provider of the prohibited interactive gambling service.
Service
(4) The Regulator must notify the:
(a) the ADI; and
(b) the provider of the prohibited interactive gambling service;
of the making of an application under subsection (1).
Matters to be taken into account
(5) In determining whether to grant the injunction, the Court may take into account the following matters:
(a) whether prohibiting transactions in relation to the prohibited interactive gambling service is a proportionate response in the circumstances;
(b) whether it is in the public interest to prohibit transactions in relation to the prohibited interactive gambling service;
(c) whether access to, or transactions in relation to, the prohibited interactive gambling service has been disabled or prohibited by orders from any court of another country or territory;
(d) any other matter prescribed by the regulations;
(e) any other relevant matter.
Rescinding and varying injunctions
(6) The Court may:
(a) limit the duration of; or
(b) upon application, rescind or vary;
an injunction granted under this section.
(7) An application under subsection (6) may be made by:
(a) any of the persons referred to in subsection (3); or
(b) any other person prescribed by the regulations.
Costs
(8) The ADI is not liable for any costs in relation to the proceedings unless the ADI enters an appearance and takes part in the proceedings.
(13) Schedule 1, page 31 (after line 19), after item 138, insert:
138A After Part 7A
Insert:
Part 7B—Restricted wagering services
Division 1—Simplified outline of this Part
61G Simplified outline of this Part
This Part sets out a number of restrictions on the conduct of restricted wagering services in relation to sports betting. These restrictions aim to ensure that such services do not engage in certain predatory practices, particularly in relation to problem gamblers, and that sports betting services are provided in a responsible manner.
These restrictions include bans on offering micro‑betting, credit or inducements, as well as requirements for the restricted wagering service to check that individuals are not included on the National Self‑exclusion Register before creating new accounts.
Restricted wagering services that contravene these restrictions may commit an offence or contravene a civil penalty provision.
Division 2—Offences and civil penalty provisions
61GA Restricted wagering service must not offer credit
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the service provides, or offers to provide, credit to individuals to use the service.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 500 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 500 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GB Restricted wagering service must not induce a person to use the service
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service; and
(b) the person:
(i) induces, or attempts to induce, another individual to use the service; or
(ii) causes another person to induce, or attempt to induce, another individual to use the service.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 500 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 500 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GC Restricted wagering service must not offer or accept micro betting
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the service offers or accepts micro betting.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 2,000 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GD Restricted wagering service must require certain details be provided to establish account
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the person creates an account, or otherwise facilitates the placing of bets, for an individual; and
(c) the individual has not provided his or her personal details.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 120 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 120 penalty units.
61GE Restricted wagering service must verify identity of account ‑holder before creating account etc.
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the service creates an account, or otherwise facilitates the placing of bets, for an individual; and
(c) the person has not verified the individual's identity.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
61GF Restricted wagering service must check the National Self ‑exclusion Register before creating account
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the service creates an account, or otherwise facilitates the placing of bets, for an individual; and
(c) the person has not submitted the individual's personal details to the National Self‑exclusion Register to check whether the individual's personal details are included on the Register.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GG Restricted wagering service must include pre ‑commitment options when creating account
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service; and
(b) the person does not require each individual who creates an account with the service to register and set annual and monthly maximum betting limits.
Note: The service must not permit these limits to be exceeded (see section 61GK, and may only increase the limits if notice is provided (see section 61GI).
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 200 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 200 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GH Restricted wagering service must not create accounts etc. for individuals on the National Self ‑exclusion Register
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the service creates an account, or otherwise facilitates the placing of bets, for an individual whose personal details are included on the National Self‑exclusion Register; and
(c) the person either:
(i) knew that the individual's personal details were included on the National Self‑exclusion Register; or
(ii) was reckless as to whether the individual's personal details were included on the National Self‑exclusion Register.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 500 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 500 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GI Restricted wagering service must not increase individual ' s betting limit
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the person increases, or causes to be increased, the monthly or annual betting limit set by the individual.
(2) Subsection (1) does not apply if the individual has:
(a) requested that the person increase the monthly or annual betting limit; and
(b) either:
(i) in relation to the monthly betting limit—the individual requested the increase at least 7 days before the limit was increased; or
(ii) in relation to the annual betting limit—the individual requested the increase at least 14 days before the limit was increased; and
(c) the individual has not made more than one other such request in the previous 12‑month period.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2).
Fault ‑based offence
(3) A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
Continuing offences or contraventions
(5) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GJ Restricted wagering service must not induce a person to increase betting limit
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service; and
(b) the person:
(i) induces, or attempts to induce, an individual to increase his or her monthly or annual betting limit; or
(ii) causes another person to induce, or attempt to induce, an individual to increase his or her monthly or annual betting limit.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
61GK Restricted wagering service must not permit account ‑holder to exceed betting limit
(1) A person contravenes this subsection if:
(a) the person intentionally provides a restricted wagering service in Australia; and
(b) the service accepts a bet from an individual that exceeds the monthly or annual betting limit nominated by the individual for the service.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 200 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 200 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
61GL Restricted wagering service must provide statement
(1) A person who provides a restricted wagering service must provide each individual who uses the service with a statement of the individual's transaction history that complies with regulations made for the purposes of this subsection.
Fault ‑based offence
(2) A person commits an offence if:
(a) the person is required to provide a statement under subsection (1); and
(b) the person fails to provide the statement as required.
Penalty: 120 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if:
(a) the person is required to provide a statement under subsection (1); and
(b) the person fails to provide the statement as required.
Civil penalty: 120 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
Regulations
(5) Regulations made for the purposes of subsection (1) must prescribe:
(a) the period which the statement must cover; and
(b) how frequently the statement must be provided (which must not be less than once a month); and
(c) the manner and form in which the statement is to be provided.
61GM Restricted wagering service must not disclose information for marketing purposes
(1) A person contravenes this subsection if:
(a) the person provides a restricted wagering service; and
(b) the person discloses personal information of an individual who uses the service to another person or entity; and
(c) the information is disclosed for use by the other person or entity in relation to marketing of a good or service.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
61GN Restricted wagering service must include link to National Self ‑exclusion Register website
(1) A person contravenes this subsection if:
(a) the person provides a restricted wagering service; and
(b) the service includes a website; and
(c) the website does not include a clear and prominent link to the National Self‑exclusion Register website that complies with regulations made for the purposes of this paragraph on each page.
Fault ‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 120 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 120 penalty units.
Continuing offences or contraventions
(4) A person who contravenes subsection (1) is guilty of a separate offence or contravention of a civil penalty provision in respect of each day (including a day of a conviction for the offence, or the day the relevant civil penalty order is made, or any later day) during which the contravention continues.
Regulations
(5) Regulations made for the purposes of paragraph (1)(c) may include requirements in relation to the following:
(a) the position of the link;
(b) the size of the link;
(c) logos that must be included with the link;
(d) any other information that may be required to be included with the link.
Division 3—Prohibition of advertising of restricted wagering services
61GO Restricted wagering service advertisements not to be broadcast during certain programs
(1) A person contravenes this subsection if:
(a) the person broadcasts a restricted wagering service advertisement in Australia; and
(b) the broadcast is during a G classified television program or a television program that consists of coverage of a sporting event.
(2) A person contravenes this subsection if:
(a) the person authorises or causes a restricted wagering service advertisement to be broadcast in Australia; and
(b) the broadcast is during a G classified television program or a television program that consists of coverage of a sporting event.
Fault ‑based offence
(3) A person commits an offence if the person contravenes subsection (1) or (2).
Penalty: 120 penalty units.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 120 penalty units.
Definitions
(5) In this section:
broadcast means transmit by means of a broadcasting service.
broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a) a datacasting service; or
(b) a service that delivers programs using the internet, where the delivery does not use the broadcasting services bands.
program has the same meaning as in theBroadcasting Services Act 1992 .
restricted wagering service advertisement means writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:
(a) a restricted wagering service; or
(b) restricted wagering services in general; or
(c) the whole or part of a trade mark in respect of a restricted wagering service; or
(d) a domain name or URL that relates to a restricted wagering service; or
(e) any words that are closely associated with a restricted wagering service (whether also closely associated with other kinds of services or products).
Part 7C—National Self ‑exclusion Register
Division 1—National Self ‑exclusion Register
61HA National Self ‑exclusion Register
(1) The Regulator must keep a register of individuals who wish to self‑exclude from restricted wagering services.
(2) The register is to be known as the National Self‑exclusion Register.
(3) The register is to be kept in electronic form.
(4) The register is not a legislative instrument.
(5) The Regulator must begin to comply with subsection (1) as soon as practicable after the commencement of this section.
(6) For the purposes of the Privacy Act 1988 , the primary purpose of the register is to facilitate:
(a) self‑exclusion from restricted wagering services; and
(b) the prohibition, under section 61GH, of restricted wagering services creating accounts, or otherwise facilitating the placing of bets, for individuals who have self‑excluded.
61HB Regulator may correct or update information in Register
The Regulator may correct or update information in the Register.
61HC Applications for registration
(1) An individual may apply to the Regulator for the individual's personal details to be entered on the Register.
(2) The application must:
(a) include the individual's personal details; and
(b) be in the form specified by the Regulator under section 61HG; and
(c) be made in the manner specified by the Regulator under section 61HG.
61HD Registration
If:
(a) an application is made for an individual's personal details to be entered on the Register; and
(b) the applicant satisfies the Regulator that the details provided under paragraph 61HC(2)(a) are the applicant's personal details;
the applicant's personal details must be entered on the Register.
61HE Duration of registration
(1) The registration of a person's name and personal details:
(a) takes effect when the name and details are entered on the Register; and
(b) unless sooner removed from the Register in accordance with section 61HF or 61HG, remains in force indefinitely.
(2) If a person's name and personal details are removed from the Register, this Act does not prevent the person from being re‑registered on the Register.
61HF Removal from Register
(1) The Regulator must, by legislative instrument, make a determination that makes provision for a person to apply for his or her name to be removed from the Register.
(2) Without limiting subsection (1), the determination must include:
(a) the form of application for individual's personal details to be removed from the Register; and
(b) the information which must accompany the application; and
(c) the documentation that must be provided in support of the individual's application.
61HG Administration of the Register—determinations
The Regulator may, by legislative instrument, make a determination that makes provision for and in relation to any or all of the following:
(a) the form of application for individual's personal details to be entered on the Register;
(b) the manner in which such applications are to be made;
(c) the manner in which entries are to be made on the Register;
(d) the correction of entries in the Register;
(e) the removal of entries from the Register on the Regulator's own initiative;
(f) any other matter relating to the administration or operation of the Register.
Division 2—Dealing with protected information in the Register
61HH Authorised dealings with protected information
Uploading personal information to the Register
(1) A person may collect, make a record of, disclose or otherwise use:
(a) personal information; or
(b) relevant personal details;
if the person does so for the purposes of including the information in the Register.
Note: This subsection is an authorisation for the purposes of other laws, including the Australian Privacy Principles.
Using or disclosing protected information in the Register
(2) A person may make a record of, disclose or otherwise use protected information if:
(a) the person does so for the purposes of the Register, and the person is:
(i) an officer or employee of the Commonwealth or of an authority of the Commonwealth; or
(ii) engaged by the Commonwealth, or by an authority of the Commonwealth, to perform work relating to the purposes of the Register; or
(iii) an officer or employee of, or is engaged by, a person referred to in subparagraph (ii) to perform work relating to the purposes of the Register; or
(b) the person does so for the purposes of performing the person's functions, or exercising the person's powers, under this Act.
Note: This subsection is an authorisation for the purposes of other laws, including the Australian Privacy Principles.
61HI Offence relating to protected information
A person commits an offence if:
(a) the person obtains information; and
(b) the information is protected information; and
(c) the person makes a record of, discloses or otherwise uses the information; and
(d) the making of the record, or the disclosure or use, is not authorised by section 61HH.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Part 7D—Interactive Gambling Regulator
61JA Establishment of the Interactive Gambling Regulator
There is to be an Interactive Gambling Regulator.
Note: In this Act, Regulator means the Interactive Gambling Regulator (see section 4).
61JB Functions of the Regulator
The Regulator has the following functions:
(a) to advise and assist persons in relation to their obligations under Parts 7B and 7C;
(b) to monitor, promote, investigate and enforce compliance with Parts 7B and 7C;
(c) to develop, in consultation with industry (including restricted wagering services, gambling counselling services and financial counselling services), a code of practice relating to responsible gambling that is to be applicable to restricted wagering services;
(d) to collect, analyse, interpret and disseminate:
(i) aggregated and de‑identified data on gambling expenditure and trends in gambling patterns or behaviours; and
(ii) information relating to the operation of Parts 7B and 7C;
(e) to monitor and evaluate the operation of Parts 7B and 7C;
(f) to provide information and advice to the Minister about the operation of Parts 7B and 7C;
(g) to undertake or commission research in relation to gambling matters and the operation of Parts 7B and 7C;
(h) such other functions as are conferred on the Regulator by this Act or any other law of the Commonwealth;
(i) to do anything incidental to or conducive to the performance of any of the above functions.
61JC Powers of the Regulator
The Regulator has power to do all things necessary or convenient to be done in connection with the performance of the Regulator's functions.
61JD Appointment of the Regulator
(1) The Regulator is to be appointed by the Minister by legislative instrument.
Note: For reappointment, see section 33AA of the Acts Interpretation Act 1901 .
(2) A person is not eligible for appointment as the Regulator unless the Minister is satisfied that the person has substantial knowledge, qualifications or experience in at least one of the following fields:
(a) public administration;
(b) consumer protection;
(c) mental health.
(3) The Regulator holds office on a full‑time basis.
(4) The Regulator holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
61JE Acting Regulator
(1) The Minister may, by written instrument, appoint a person to act as the Regulator:
(a) during a vacancy in the office of the Regulator (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Regulator:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .
(2) A person is not eligible for appointment to act as the Regulator unless the person is eligible for appointment as the Regulator.
61JF Remuneration and allowances
(1) The Regulator is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Regulator is to be paid the remuneration that is prescribed by the regulations.
(2) The Regulator is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 .
61JG Leave of absence
(1) The Regulator has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Regulator leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
61JH Outside employment
The Regulator must not engage in paid work outside the duties of his or her office without the Minister's approval.
61JI Disclosure of interests to the Minister
The Regulator must give written notice to the Minister of all interests, pecuniary or otherwise, that the Regulator has or acquires and that conflict or could conflict with the proper performance of the Regulator's functions.
61JJ Resignation
(1) The Regulator may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect 2 weeks after it is received by the Minister or, if a later day is specified in the resignation, on that later day.
61JK Termination of appointment
(1) The Minister may terminate the appointment of the Regulator:
(a) for misbehaviour; or
(b) if the Regulator is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the Regulator if:
(a) the Regulator:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Regulator is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Regulator engages, except with the Minister's approval, in paid work outside the duties of his or her office (see section 61JH); or
(d) the Regulator fails, without reasonable excuse, to comply with section 61JI.
61JL Other terms and conditions
The Regulator holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
61JM Delegation by Regulator
(1) The Regulator may, by writing, delegate any or all of the Regulator's functions or powers to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
(2) A delegate must comply with any written directions of the Regulator.
61JN Staff assisting the Regulator
The staff assisting the Regulator are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary of the Department.
61JO Consultants
(1) The Regulator may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the Regulator.
(2) The consultants are to be engaged on the terms and conditions that the Regulator determines in writing.
61JP Annual report
The Regulator must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Regulator during that year.
Note: See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.
61JQ Minister may give directions to the Regulator
(1) The Minister may, by legislative instrument, give written directions to the Regulator about the performance of the Regulator's functions and the exercise of the Regulator's powers.
Note 1: For variation and revocation, see the Acts Interpretation Act 1901 .
Note 2: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction under subsection (1) must be of a general nature only.
(3) The Regulator must comply with a direction given under subsection (1).
(14) Schedule 1, item 139, page 32 (lines 13 to 16), omit subsection 64B(2), substitute:
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act:
(a) the ACMA is an authorised applicant in relation to the civil penalty provisions of this Act other than Divisions 2 and 3 of Part 7B; and
(b) the Regulator is an authorised applicant in relation to a civil penalty provision in Division 2 or 3 of Part 7B.
(15) Schedule 1, item 139, page 33 (after line 15), after subsection 64C(1), insert:
(1A) A civil penalty provision in Division 2 or 3 of Part 7B is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
(16) Schedule 1, item 139, page 33 (after line 20), after subsection 64C(2), insert:
(2A) For the purposes of Part 5 of the Regulatory Powers Act, a person appointed under subsection (2B) is an infringement officer in relation to the provisions mentioned in subsection (1A).
(2B) The Regulator may, in writing, appoint a person who holds, or performs the duties of, an APS 6 position, or an equivalent or higher position, within the Department.
(17) Schedule 1, item 139, page 33 (after line 24), after subsection 64C(3), insert:
(3A) For the purposes of Part 5 of the Regulatory Powers Act, the Regulator is the relevant chief executive in relation to the provisions mentioned in subsection (1A).
(18) Schedule 1, item 139, page 33 (line 25), after "chief executive", insert "mentioned in subsection (3)".
(19) Schedule 1, item 139, page 33 (after line 32), after subsection 64C(5), insert:
Amount payable
(5A) The amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of a civil penalty provision mentioned in subsection (1A) of this section must be one‑fifth of the maximum penalty that a court could impose on the person for that contravention.
(20) Schedule 1, item 139, page 34 (after line 5), after section 64C, insert:
64CA Enforceable undertakings
Enforceable provisions
(1) The provisions of Division 2 and 3 of Part 7B are enforceable under Part 6 of the Regulatory Powers Act.
Authorised person
(2) The Regulator is an authorised person in relation to the provisions of Division 2 and 3 of Part 7B for the purposes of Part 6 of the Regulatory Powers Act.
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions of Division 2 and 3 of Part 7B:
(a) the Federal Court;
(b) the Federal Circuit Court.
Extension to external Territories etc.
(4) Part 6 of the Regulatory Powers Act, as it applies in relation to the provisions of Division 2 and 3 of Part 7B, extends to:
(a) every external Territory; and
(b) acts, omissions, matters and things outside Australia.
(21) Schedule 1, item 139, page 34 (after line 20), after subsection 64D(1), insert:
(1A) The provisions of Division 2 and 3 of Part 7B are enforceable under Part 7 of the Regulatory Powers Act.
(22) Schedule 1, item 139, page 34 (after line 24), after subsection 64D(2), insert:
(2A) For the purposes of Part 7 of the Regulatory Powers Act, the Regulator is an authorised person in relation to the provisions mentioned in subsection (1A).
(23) Schedule 1, item 139, page 34 (line 28), after "subsection (1)", insert "or (1A)".
(25) Schedule 1, Part 1, page 36 (after line 29), at the end of the Part, add:
Privacy Act 1988
146A After paragraph 7.8(a) of Schedule 1
Insert:
(aa) Part 7B of the Interactive Gambling Act 2001 ;
The committee divided. [12:44]
(The Chair—Senator Lines)
(24) Schedule 1, page 36 (after line 19), after item 143, insert:
143A After section 69A
Insert:
69B Minister must mandate blocking illegal overseas gambling websites
The Minister must, within 6 months after the commencement of this section, make a legislative instrument requiring internet service providers to block access to illegal overseas gambling websites.
(1) Schedule 1, item 7, page 5 (after line 21), after the definition of designated interactive gambling service , insert:
electronic betting terminals means electronic equipment that is:
(a) installed on a permanent or fixed basis at a place where gambling services are provided; and
(b) located in an area that is set aside for gambling services and under the continual supervision of the provider; and
(c) unable to connect to the internet; and
(d) available for use only by customers using cash or a card issued by the provider.
[Note: The definition of " electronic equipment " has not been removed because it is used in the definition of " electronic betting terminals " .]
(2) Schedule 1, item 27, page 11 (lines 32 and 33), omit "electronic equipment", substitute "electronic betting terminals".
(3) Schedule 1, item 27, page 12 (line 1), omit "electronic equipment is", substitute "electronic betting terminals are".
(4) Schedule 1, item 27, page 12 (lines 19 and 20), omit "electronic equipment", substitute "electronic betting terminals".
(5) Schedule 1, item 27, page 12 (line 22), omit "electronic equipment is", substitute "electronic betting terminals are".
(6) Schedule 1, item 27, page 12 (line 24), omit "electronic equipment is", substitute "electronic betting terminals are".
(1) Schedule 1, item 7, page 5 (after line 14), after the definition of carriage service, insert:
casino ‑style poker or blackjack gambling service has the meaning given by section 8BC.
(2) Schedule 1, page 8 (after line 12), after item 23A, insert:
23B Before paragraph 5(3)(c)
Insert:
(bc) a casino‑style poker or blackjack gambling service (see section 8BC);
(3) Schedule 1, item 27, page 13 (after line 15), after section 8BB, insert:
8BC Casino ‑style poker or blackjack gambling service
(1) For the purposes of this Act, a casino ‑style poker or blackjack gambling service is a service for the conduct of a game covered by paragraph (e) of the definition ofgambling service in section 4:
(a) to the extent to which the game is poker or blackjack; and
(b) to the extent to which the game is conducted in a manner substantially similar to the manner in which it would be conducted at a casino;
so long as the other conditions (if any) determined under subsection (2) have been satisfied.
(2) The Minister may, by legislative instrument, determine one or more conditions for the purposes of subsection (1).
(4) Schedule 1, item 28, page 13 (after line 29), after paragraph 8E(1)(g), insert:
(ga) a casino‑style poker or blackjack gambling service (see section 8BC); or
Whether particular services should no longer be restricted under the IGA is a separate question that this committee was not asked to consider as part of this inquiry.
The committee divided. [13:10]
(The Chair—Senator Lines)
(1) Schedule 1, item 26, page 11 (after line 13), at the end of paragraph 8A(5) (c), add:
(vi) a service relating to betting on the outcome of a lottery;
(2) Schedule 1, page 13 (after line 15), after item 27, insert:
27A At the end of subsection 8D(2)
Add:
; or (c) betting on the outcome of a lottery.
The Senate divided. [13:23]
(The Chair—Senator Lines)
That this bill be now read a third time.
That government business order of the day No. 2 Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2017 be postponed to the next day of sitting.
Transport Security Amendment (Serious or Organised Crime) Bill 2016
… feedback from the Department, the Australia Council and the arts sector regarding the ongoing arrangements for the Australian Government’s funding for the Arts portfolio.
That the Senate take note of the answer given by the Attorney-General (Senator Brandis) to a question without notice asked by Senator McCarthy today relating to the Racial Discrimination Act 1975 .
It’s filled the op-ed pages of newspapers for years and years but the government has no plans to make any changes to section 18C. We have other more pressing, much more pressing priorities to address.
18(C) is talked about constantly on the ABC. It's talked about constantly in what's often called the 'elite media'. I've focused overwhelmingly on the economy.
There should be no right to not be offended.
This will take the legislation across a certain threshold into the realm of thought police …
Despite its limited operation, there is a good case for amending section 18C. … the law should proscribe extreme forms of speech such as racial vilification and incitement to violence. Section 18C—
goes too far in applying to more minor forms of speech, in particular words that offend or insult.
I want "offend" and "insult" taken out of section 18C of the Racial Discrimination Act. I don't think the law should engage at that level. But I can't see that this country would be a better, freer place if "humiliate" and "intimidate" went too.
That the Senate take note of the answer given by the Attorney-General (Senator Brandis) to a question without notice asked by Senator Di Natale today relating to the Racial Discrimination Act 1975 .
That the following matters be referred to the Environment and Communications References Committee for inquiry and report by 30 June 2017:
(a) the levelised cost of electricity (LCOE), with particular reference to the energy production options, including:
(i) coal fired electricity (without carbon capture and storage),
(ii) combined cycle gas turbines (without carbon capture and storage),
(iii) wind turbines,
(iv) medium-sized (five megawatt) solar photovoltaic (PV) systems,
(v) hydroelectricity, and
(vi) nuclear power;
(b) the projected LCOE generation in Australia from 2017 to 2030 as using coal, gas, wind, solar, hydroelectricity and nuclear power, and the likely variations in the percentages of these sources of electricity over the same period;
(c) the amount of taxpayer subsidies currently paid for electricity generation from each source, and the projected subsidies to 2030;
(d) to assist in cost effective decisions relating to carbon dioxide reductions, the amount of carbon dioxide emitted for coal, gas, wind, solar energy, hydroelectricity and nuclear power in:
(i) the construction process for plants or farms, for example, construction of components and transportation,
(ii) a 20 year power production period once constructed, and
(iii) the amount of carbon dioxide emitted for wind and solar PV farms across a 20 year power production period when a gas fired power station is the backup power source for when wind and solar PV is not supplying power at the rated power level, including the carbon dioxide emitted from the backup power source;
(e) the average amount of time over a year, a month, a week and a day that power plants or power farms are not producing power at their full-rated power level;
(f) whether the basis for calculating the effect on global climate of carbon dioxide as a result of human activity is either the reports of the Intergovernmental Panel on Climate Change (IPCC) or the reports of NASA or the reports of CSIRO;
(g) the financial costs and benefits to Australia of reducing Australia's carbon dioxide output by 23 per cent, 50 per cent and 90 per cent; and
(h) any other related matter.
The Senate divided. [15:40]
(The President—Senator Parry)
Communications Legislation Amendment (Executive Remuneration) Bill 2017
That the following bill be introduced: A Bill for an Act to amend the law relating to remuneration of certain office holders, and for related purposes. Communications Legislation Amendment (Executive Remuneration) Bill 2017 .
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
I rise to speak on my private senator's bill, the Communications Legislation Amendment (Executive Remuneration) Bill 2017. The purpose of this bill is to amend the Australian Postal Corporation Act 1989 and the National Broadband Network Companies Act 2011 to remove the ability of the respective Boards to set remuneration and to give that authority to the Remuneration Tribunal by amending to the Remuneration Tribunal Act 1973.
Australia Post and the National Broadband Network Company (NBN Co) are two of six government owned enterprises known as Government Business Enterprises (GBEs) which are defined in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and are prescribed in section 5 of the PGPA Rule to the PGPA Act.
The other four are the Australian Rail Track Corporation Limited responsible for some 10,000 kilometres of interstate rail, Australian Submarine Corporation Pty Ltd responsible for naval ship building and in particular the proposed spend of $50 billion on new submarines, Defence Housing Australia and the Moorebank Intermodal Company Limited to be responsible for the major infrastructure hub in Sydney.
All these businesses are very different but they share some important characteristics.
I now want to turn to Australia Post. It is common ground in the community that the payment of some $5.6 million to the Managing Director of Australia Post is out of step with community expectations. The way in which the remuneration package was discovered, the response of the shareholder Ministers and the Board and the Managing Director will no doubt become a text book study of what not to do.
It seems that this payment of $5.6 million also permitted the Managing Director of Australia Post to take on other paid work. The 2016 Annual Report of Pro-Pac Packaging reports Mr Ahmed Fahour was also paid a fee of $109,500 last year by the ASX listed. It maybe that Mr Fahour also earned other income but my concern is not with Mr Fahour but with the Board of Australia Post.
The Board of Australia Post is either unaware its Managing Director has another job in the same space that Australia Post operates in or it is aware and does not care.
The Board of Australia Post has failed the people of Australia and needs to be replaced. In the meantime the power to set remuneration for the Managing Director needs to be removed and given to the Remuneration Tribunal which already sets the remuneration of most of the other GBE's.
Here are the problems with setting the remuneration of the Managing Director at $5.6 million.
The single payment is excessive, it reduces the dividend to government, but worse it has a flow on effect throughout Australia Post. It makes payment of between $1.3 and $1.8 million to a number of other executives seem reasonable when it is not and that further reduces the dividend.
The flow on effect goes on and on because these excessive payments come at the cost of moral and a sense of fairness to the real workers at Australia Post, the staff, the contractors and owners of licensed and franchised post offices who deliver the community service obligation. It's a zero sum game: someone has to pay for this excessive remuneration regime.
So the question now has to be asked 'how did this happen'? The short answer is a complete failure of the Board of Australia Post and the Coalition Government who failed to bring to a stop a remuneration arrangement already in play under the previous Labour Government.
I think it is instructive to look at the sequence of recent events. The Board of Australia Post ceased publishing the remuneration arrangements of the Managing Director in its Annual Report in 2013.
The remuneration arrangement for the Managing Director of Australia Post were revealed in a response to a question at Senate Estimates and a flurry of newspaper articles in The Australian and other print media which was followed by radio and television commentators. Finally we knew what the Board and the shareholder Ministers had known all along.
Once the media took up the story, the Government responded with a letter to the Board of Australia Post. Later the Prime Minister thought the Managing Director of Australia Post could search his conscience and return some of the money. You would have thought the Government was simply powerless to act.
This Bill makes it clear that the tools necessary to deal with the matter of remuneration were always available to Government.
I met with Communications Minister Fifield on 9 February 2017 and pointed out that the position of Managing Director of Australia was already a principal executive office along with the CEO of the Australian Rail Track Corporation Ltd which seemed to surprise him and he told me he would get back to me shortly. He didn't.
On the 16th of February 2017 I won the ballot for that day's Matter of Public Importance and spoke about Australia Post and said I had been left with no alternative but to try to fix the problem myself because quite clearly no one else had any interest in doing so.
The Bill before you reflects no more and no less than the removal of the remuneration setting power of the Board of Australia Post and the allocation of that removed power to the Remuneration Tribunal.
The Remuneration Tribunal sets the salary of the Prime Minister which is $517,504. The Chief of the Navy, the Chief of the Army and the Chief of the Airforce receive much less.
If the Remuneration Tribunal as an independent statutory body can handle the remuneration of the Prime Minister, the judiciary and others managing government businesses then they can handle the remuneration for the most senior officers at Australia Post and NBN.
Once the Remuneration Tribunal sets the remuneration package for the Managing Director at Australia Post some community confidence will be re-established in the system of government in Australia. Possibly some lessons will learned.
The Coalition and Labour need to get out more. Less time in their political bubble in-fighting and more time with the rest of Australia, the people they so passionately care about when interviewed for television and radio. In 2016 Australia Post reported a dividend of $20 million and that amount would have been much higher probably double if the Board of Australia Post and the shareholder Ministers were not asleep at the wheel of Australia Post.
Before I leave the case for change, I want to look briefly at the remuneration for comparable organisations.
In the United States (US) the US Postal Service is an independent agency responsible for providing the postal service and like Australia Post it is obliged to provide a postal service regardless of geography at a uniform price. The US Postal Service employs over 600,000 staff and delivers more than 660 million pieces of mail a day yet their CEO has a package worth $1.2 million Australian dollars, which is one quarter of the remuneration of the equivalent position in Australia Post. How can that be justified? It's the same story for the United Kingdom and Canada.
On the 24th of February 2017 the Government announced it would bring the position of Managing Director of Australia Post within the regime administered by the Remuneration Tribunal but it said nothing about the CEO of NBN.
I now want to turn to the Board of the NBN Co and its payment of $3.6 million to the Chief Executive Officer. This Bill also brings the CEO of NBN Co within the framework of the Remuneration Tribunal.
Finally I would like to mention the questions asked and replied to at the Additional Senate Estimates Environment and Communication Committee on the 28th of February 2017. The Managing Director of Australia Post suggested that his religion and his skin colour have paid a role in my decision to speak in Parliament on the issue of his remuneration. It has not.
Personal factors have played no role in my decision to speak up on the remuneration of the Managing Director at Australia Post on the 16th of February 2017. Every other speaker on that occasion agreed the remuneration package for the managing Director of Australia Post was excessive. On that basis I would expect them to support this Bill.
That the Senate—
(a) notes:
(i) the Brisbane action on Sunday, 12 February 2017, as part of the One Billion Rising movement to end violence against women and girls,
(ii) that together with Nia Australia, Vulcana Women's Circus, WaW Dance and Brisbane Powerhouse, women gathered to celebrate a world free from violence, and
(iii) that funds raised on the day were directed to Brisbane domestic violence services; and
(b) recognises that One Billion Rising:
(i) is the biggest mass action to end violence against women and was launched on Valentine's Day 2012,
(ii) began as a call to action based on the staggering statistic that 1 in 3 women on the planet will be beaten or raped during her lifetime, with the world population at 7 billion, this adds up to more than one billion women and girls, and
(iii) is focused is on women's strength and resistance, aiming to work together to raise awareness and demand a world free from violence.
That the Senate—
(a) notes that:
(i) the Australian Bureau of Agricultural and Resource Economics and Sciences has forecast the gross value of Australian farm production will increase by 8.3 per cent to a record $63.8 billion in 2016-17,
(ii) real net farm cash income is estimated to have been $25.7 billion in 2015-16, well above the 20-year average to 2014-15 of $15.6 billion,
(iii) farm cash income for Australian broadacre farms is projected to average $216 000 per farm in 2016-17 which is the highest recorded in the past 20 years,
(iv) new trade opportunities negotiated by the Coalition Government with China, Korea and Japan have boosted Australian farm exports which are projected to be $48.7 billion in 2017-18, and
(v) agriculture showed strong growth in the December quarter, contributing 0.2 per cent to the economy's overall 1.1 per cent growth for that period; and
(b) further notes that, with the right policy settings and programmes, agriculture still has massive potential to grow and deliver even better results as an economic powerhouse of the nation.
Fair Work Amendment (Protecting Take-Home Pay) Bill 2017
That the following bill be introduced: A Bill for an Act to amend the Fair Work Act 2009 , and for related purposes.Fair Work Amendment (Protecting Take - Home Pay) Bill 2017 [No. 2] .
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
The Fair Work Amendment (Protecting Take-Home Pay) Bill 2017 will prevent the penalty rates cut proposed by the Fair Work Commission's decision in matter AM2014/305 from taking effect.
It will protect workers take-home pay now and into the future.
The Bill ensures that modern awards cannot be varied to reduce the take-home pay of an employee. This includes any reduction in take-home pay as a result of a reduction in penalty rates or the hours to which penalty rates apply.
The Bill preserves the independence of the independent workplace umpire, the Fair Work Commission (the Commission), but appropriately guides the exercise of its discretion to ensure wages are not cut.
The purpose of the Fair Work Amendment (Protecting Take-Home Pay) Bill 2017 is to amend the Fair Work Act 2009 so that the Fair Work Commission, in exercising its powers to vary modern awards, cannot vary a modern award so that the effect of the variation would be likely to reduce, or reduce the take-home pay of any employee.
The Bill amends the definitions of reduction in take-home pay andtake-home pay in theFair Work Act 2009 by reference to new subsections 135A(4) and 135A(5).
Item 3 of the schedule inserts a new subsection 135A in Division 2 of Part 2-3 which requires that, in exercising its powers under this Part, the Fair Work Commission cannot vary a modern award such that an employee's, or prospective employee's, take-home pay is reduced.
It does not require individual employees to provide evidence to the Fair Work Commission of actual loss of take-home pay.
The Bill provides that any determination of the Fair Work Commission made on or after 22 February 2017 that would result, or would be likely to result in a cut to take-home pay under the Award, is of no effect.
At the date of the introduction of this Bill, no determination has been issued arising from decision AM2014/305 by the Fair Work Commission. The effect of this amendment is to invalidate any determination which may be issued by the Fair Work Commission, arising from decision AM2014/305 by the Commission, prior to the enactment of this Bill.
This amendment ensures that modern awards are a safety net for the take-home pay of employees currently under the award and of prospective employees under the award.
For the avoidance of doubt, the definition of take-home pay makes it clear that all employees under modern awards are to receive the full benefit in their take-home pay of any increase to the modern award minimum wage. For example, the Fair Work Commission may not vary a modern award so as to phase in a cut to penalty rates by offsetting that cut against any annual increases in the modern award minimum wage.
Australia's national workplace relations system can, in simple terms, be viewed in three parts.
Firstly, the National Minimum Wage and the National Employment Standards (NES); which are ten statutory minimum employment standards that all employees are entitled to.
Secondly, modern awards, which are legal documents that outline the minimum pay rates and conditions of employment. There are 122 industry or occupation awards that cover most people who work in Australia.
Thirdly, enterprise agreements and other registered agreements which set out minimum employment conditions. When a workplace has a registered agreement, the award does not apply. However, in order to have an approved, registered agreement it must leave workers better off overall than the relevant industry award.
At the time of their conception, the then Minister for Employment and Workplace Relations, Ms Gillard made it clear that modern awards were established to, "ensure that they maintain a relevant and fair minimum safety net and continue to be relevant to the needs and expectations of the community."
This provision was further supported and strengthened by an amendment to the Fair Work Act 2009 in 2013 which amended the modern awards objective to ensure that the Fair Work Commission, in carrying out its functions, must take into account the need to provide additional remuneration for employees working outside normal hours, such as employees working overtime or on weekends.
At the time, the Minister for Workplace Relations, Mr Shorten, said "Our Bill makes it clear that this Labor government believes in the value and utility of penalty rates…"
It is abundantly clear that it was not ever envisaged that modern awards would be cut in the manner the Fair Work Commission proposes in the penalty rates case. The fact that the Fair Work Commission has been able to propose cuts in the manner it has is contrary to the intention of the Parliament. To reduce the pay of already low and middle income earning Australians does not, in the Opposition's view, maintain a relevant and fair minimum safety net, nor is it relevant to community expectations.
It is paradoxical that modern award conditions such as penalty rates, which exist as a safety net, can be reduced by the Fair Work Commission but enterprise agreements, which are negotiated between employers and their workforces ensuring workers are better off overall than the award, cannot be altered to reduce pay or conditions of employment otherwise than in a manner which is consistent with the better-off-overall-test.
Inequality in Australia is at a 75-year high. Wages growth is at historic lows and underemployment is at record highs.
There could not be a worse time to cut workers' take-home pay; a fate workers will not have to suffer if this Bill is passed.
The decision of the Fair Work Commission, one that was campaigned for by the Prime Minister and Government, affects 700,000 Australians and will have particularly devastating effects on women, Culturally And Linguistically Diverse (CALD) communities, young people and regional communities. The McKell Institute's analysis states, "For many, the changes are dramatic: full time or part time retail workers who work a full 8-hour shift, for example, will lose at least $72.90 per week. Annually, this equates to a $3499 loss." Further, "55 per cent of those impacted by the proposed changes are female…".
In relation to regional communities, the McKell Institute estimated a partial abolition of penalty rates in the retail and hospitality sectors would result in, "workers in Rural Australia losing between $370.7 million per annum and $691.5 million per annum." and "A loss in disposable income of between $174.6 million per annum and $343.5 million per annum to local economies in Rural Australia."
In arriving at its conclusion, the Fair Work Commission noted the hardship which the proposed cuts to penalty rates will impose on employees who work on public holidays and Sundays. The Commission observed that, "…. the variation of a modern award which has the effect of reducing the earnings of low-paid employees will have a negative impact on their relative living standards and on their capacity to meet their needs". The Opposition agrees and believes the Commission has not given appropriate weight to the effects of reducing penalty rates in reaching its decision.
This decision has implications for workers beyond retail, hospitality and pharmacies. Workers such as nurses, teachers, community workers, disability workers, cleaners and construction workers are, as a result of this decision, at risk of seeing their penalty rates cut in the future.
Through this Bill, Labor is making it clear we don't share the Coalition Government's easy to hire, easy to fire, low road, race-to-the-bottom view of what the Australian labour market should look like.
The way to protect the take-home pay of workers under modern awards is for the decision of the Fair Work Commission not to take effect, and for the Parliament to amend the Fair Work Act 2009 in the way proposed by the Opposition to make it clear that the Commission may not vary a modern award in a way that would result, or would be likely to result in a cut to the take-home pay of an employee or prospective employee covered by a modern award.
I commend the Bill to the Senate.
That the Senate—
(a) notes that:
(i) 21 March 2017 is Harmony Day, a day which celebrates Australia's cultural diversity and demonstrates cultural respect for everyone who calls Australia home, and
(ii) Harmony Day coincides with the United Nations International Day for the Elimination of Racial Discrimination;
(b) endorses Harmony Day's message 'everyone belongs';
(c) notes the success of Australia's laws in protecting Australians from discrimination on the basis of race, colour, descent or national or ethnic origin, key to Australia's success as a multicultural society; and
(d) reaffirms its commitment to the right of all Australians to enjoy equal rights and be treated with equal respect regardless of race, colour, descent or national or ethnic origin.
That the Senate—
(a) notes:
(i) the tragic death of a cyclist in Melbourne recently, who was struck and killed by a truck while riding a busy cycle route in the city's inner west,
(ii) the work of cycling advocates in calling for improved infrastructure and safety measures to ensure people have the freedom to ride safely,
(iii) the importance of well-designed and properly funded infrastructure to support cycling as a healthy, clean and efficient mode of transport for Australians of all ages,
(iv) that our cities suffer from traffic congestion and pollution, which can be relieved by providing people with safe cycling routes,
(v) the National Cycling Participation Survey 2015 showed that four million people ride their bike each week in Australia,
(vi) that the National Cycling Strategy aimed to double the number of people riding a bike between 2011 and 2016, yet rider numbers remained relatively unchanged over that period, and
(vii) that the Federal Government funds a range of transport modes, yet provides very little funding to active transport; and
(b) calls on the Government to invest in cycling infrastructure in the upcoming Budget, to reflect the nationally significant role of cycling as a transport mode in Australia and the need to ensure the safety of everyone who rides.
That the Senate notes that—
(a) 21 March 2017 will mark the 12th anniversary of World Down Syndrome Day;
(b) World Down Syndrome Day recognises the rights of people with Down Syndrome;
(c) over 13,000 Australians live with Down Syndrome;
(d) it is the responsibility of local, state and territory, and national governments to advocate for people with Down Syndrome;
(e) we have a responsibility to ensure that people with Down Syndrome participate fully and equally in their communities and all aspects of Australian society; and
(f) we have an obligation to empower people with Down Syndrome, by giving them a voice in policy development and public life.
That the Senate—
(a) notes:
(i) the resounding defeat of the Barnett Government in Western Australia on 11 March 2017,
(ii) the unnecessary, destructive land-clearing undertaken by Main Roads Department contractors at the site of the proposed Roe Highway project in the Beeliar Wetlands in contravention of state and federal approval conditions, and
(iii) that the incoming McGowan Government has committed to cancel the project;
(b) congratulates Aboriginal leaders, community organisers, local governments and local residents for their defiant and ultimately successful campaign to protect country and culture in the Beeliar Wetlands; and
(c) calls on the Government to ensure that Commonwealth funds worth $1.2 billion committed to the unwanted Roe Highway project are reallocated to public transport, rail freight upgrades and rehabilitation of the Roe Highway corridor.
That the Senate—
(a) notes the Close the Gap Progress and Priorities Report 2017;
(b) acknowledges that unaddressed hearing loss and impairment in Aboriginal and Torres Strait Islander communities leads to poorer life outcomes and entrenches disadvantage;
(c) recognises that not enough is being done to address hearing loss and impairment in Aboriginal and Torres Strait Islander communities;
(d) calls on the Minister for Indigenous Affairs to support the recommendations of the Close the Gap Progress and Priorities Report 2017, which calls for new engagement with our First Peoples and the Redfern Statement, as well as a reset to the national approach to health inequality; and
(e) calls on the federal, state and territory governments to urgently address hearing loss and impairment in Aboriginal and Torres Strait Islander communities.
That the Senate—
(a) notes that:
(i) the decision of the Fair Work Commission, in relation to penalty rates in matter AM2014/305, will result in reductions to the take home pay of up to 700,000 workers employed in retail, hospitality and pharmacies, and
(ii) in its decision, the Fair Work Commission found that reductions in penalty rates will cause hardship to employees affected by the decision; and
(b) expresses its opposition to reductions in penalty rates that reduce the take home pay of Australian workers now and in the future.
The Senate divided. [16:02]
(The President—Senator Parry)
That, given the Commonwealth's debt and Australia's budget deficit, the Senate is of the view that all senators receive an appropriate remuneration package and, therefore, the Remuneration Tribunal should not consider increasing the remuneration paid to senators until the Government has delivered a budget surplus.
The Senate divided. [16:08]
(The President—Senator Parry)
That so much of the standing orders be suspended as would prevent Senator Bernardi moving a motion relating to the conduct of the business of this Senate, namely a motion to give precedence to general business notice of motion no. 240.
The Senate divided. [16:47]
(The President—Senator Parry)
Pursuant to Standing Order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:
The need for multinational companies to pay tax.
… a willingness on the part of ordinary Australians to ignore the tax evasion implicit in paying cash for a kitchen renovation or cheap meal.
Getting every single dollar out of multinationals and large corporates is not going to make a dent.
The biggest of all is individuals, wage and salary earners, claiming work-related expenses. So that's what we've actually got to focus on—
So far the only idea they—
have come up with is to spend $100 million on the ATO to raise $1 billion. Well, next time they will be telling us to spend $1 billion on the ATO to raise $10 billion. That is the problem. All they can think of is spending more and taxing more.
The sentiment in Australia is very strong in this regard. The stories and coverage of…base erosion and profit shifting related issues over the past couple of years have led to unprecedented levels of interest in the tax behaviour of large corporates, especially multinationals.
As a result, the new multinational anti-avoidance law, the MAAL, was introduced—
That the Senate adopt the recommendations contained in the report, as circulated to senators.
That the Senate take note of the report.
That the Senate take note of the report.
The short answer to your question is: the government has no plans to change the Racial Discrimination Act at all.
There's a longer discussion about the wording of 18c but there are no plans to make any changes to it. OK, thank you.
The answer is no, not at this stage because we have higher and more urgent Budget repair priorities.
I think the Government has no plans to make any changes to Section 18C. We have other more pressing, much more pressing, priorities to address.
… at one stage you'll be open to the idea of taking 'insult' and 'offend' out of the Bill?
Barrie, it is not on our agenda.
Well, I've said in the past that I think it can be usefully amended.
Changes to the RDA should be about process, not about the wording of the section.
That the Senate take note of the reports.
Part II: Future of Australia's naval shipbuilding industry—future submarines
March 2017
Recommendation 1
The committee recommends that the government not enter into a contract for the future submarine project without conducting a competitive tender for the future submarines, including a funded project definition study.
The tender should invite at least two bidders, preferably up to four, to participate.
The tender for the future submarine project should be conducted in line with the committee's recommendations and the guidelines set out in the Defence Policy Procurement Manual.
A request for tender should invite the bidders to provide the Commonwealth with:
Recommendation 2
The committee recommends that the competitive tender process for the future submarines begins immediately.
As noted by several independent witnesses, there remains sufficient time to conduct a competitive tender for the future submarines while avoiding a capability gap. This is due to the work on the future submarines undertaken by the previous government.
In his evidence, Dr John White set out a timetable that included a competitive tender process, contracting, construction, testing and introduction to service without a capability gap.
If followed, this timetable would allow the government obtain the best submarine capability at the best price, while avoiding a capability gap.
Government Response to Recommendations 1 and 2
Noted.
These recommendations have been overtaken by events.
The evaluation process that underpinned the decision on the future submarine was comprehensive and included substantial internal and external review. The Government is satisfied that the processes were very robust and resulted in the right decision for Australia.
Recommendation 3
Given the weight of the evidence about the strategic, military, national security and economic benefits, the committee recommends that the government require tenderers for the future submarine project to build, maintain, and sustain Australia's future submarines in Australia.
When selecting its preferred tenderer the government must give priority to:
Government Response
Noted.
This recommendation has been overtaken by events.
The Government announced on 26 April 2016 that the future submarines will be built in Australia with Australian steel. Defence will seek to maximise Australian industry involvement and support for the future submarine. The submarine decision is consistent with the Government's already announced continuous shipbuilding program—which will ensure a substantial and permanent naval shipbuilding capability in Australia.
Recommendation 4
The committee recommends that:
Government Response
Noted.
This recommendation has been overtaken by events.
The Government has already acknowledged that there is no MOTS option available that will meet Australia's Future Submarine needs. This was reaffirmed by the Prime Minister's announcement regarding the Future Submarines on 26 April 2016.
Recommendation 5
The committee recommends that Defence and the government start immediately to:
Government Response
Agree in part.
The Government's Defence capability requirements were outlined in the 2016 Defence White Paper together with the Government's commitment to resetting the relationship with defence industry as outlined in the 2016 Defence Industry Policy Statement. Each of the major shipbuilding projects announced by the Government form part of the commitment to continuous naval shipbuilding in Australia. These projects represent the most significant investment in naval shipbuilding outside wartime. Defence will seek a wide range of inputs and support into each of these projects to ensure the capability is delivered, build premium reduced and local content and support maximised.
The Naval Shipbuilding Plan will bring together all of the elements of the Government's continuous naval shipbuilding strategy to:
Part III: Future of Australia's naval shipbuilding industry—long-term planning
March 2017
Recommendation 1
The committee reaffirms recommendation 1 from its initial report that the tender process for the two replacement replenishment ships:
Government Response to Recommendation 1
Noted
This recommendation has been overtaken by events.
On 6 May 2016, the Government announced it has signed contracts with Navantia S.A. to build Australia's two replacement replenishment ships, avoiding a critical capability gap. Australia's current supply ship HMAS Success will reach end of life in 2021 and needs to be replaced as a matter of priority.
The two replacement replenishment ships are urgently required to avoid a critical capability gap and to meet the operational requirements of the Navy by the early 2020's. The decision to go offshore was based on the schedule and cost-premiums of an Australian build and imperative to replace HMAS Success in the 2021-22 timeframe. There are elements of the ships' systems that will require Australian content in the replenishment ships, including communications and situational awareness systems and quality of life requirements.
The contract with Navantia was signed following a limited tender between Navantia of Spain and Daewoo Shipbuilding and Marine Engineering (DSME) of Korea for the offshore construction of two replacement replenishment vessels based on existing designs, Cantabria (Navantia) and Aegir (DSME) respectively.
The key reasons for recommendation to limited tender for off-shore build:
Recommendation 2
The committee recommends that the Government adopt the following procurement process to acquire 12 future submarines:
The committee also reaffirms recommendation three from its report on future submarines that:
Given the weight of evidence about strategic, military, national security and economic benefits, the committee recommends that the government require tenderers for the future submarine project to build, maintain and sustain Australia's future submarines in Australia.
Also, given the national significance and complexity of the project to acquire the future submarine, the committee recommends that the government establish a Naval/Submarine Construction Authority as a 'non corporate Commonwealth entity with appropriate industry and Defence expertise and authoritative leadership to deliver the future submarine'.
The committee recommends further that Defence heed and apply the lessons learnt from the AWD regarding the transfer of knowledge and those of the Collins Class submarine about the consequences of being a parent navy to the future submarines.
Government Response to Recommendation 2
Noted.
This recommendation has been overtaken by events.
Informed by the outcome of the Competitive Evaluation Process, the Government announced on 26 April 2016 that DCNS of France has been selected as the preferred international partner to work with Australia on the design of a regionally superior Future Submarine. The Government also announced that all 12 Future Submarines will be built in Australia.
Sustainment in country, encompassing all upkeep, update and upgrade activities will also ensure that the Future Submarines can be kept at appropriate levels of availability without undue reliance on another country throughout their service life.
The lessons learnt from the Air Warfare Destroyer and Collins submarine programs, together with advice from naval shipbuilding experts, such as the RAND Corporation, will inform the development of the Naval Shipbuilding Plan.
Recommendation 3
The committee recommends that the Australian Government provide the committee with a copy of the 'forensic audit' of the AWD program.
The committee also repeats its recommendation contained in its first report that the government release the report of the independent review of the AWD program (also known as the Winter-White Report).
The committee understands that it may be appropriate for a public version of both documents to be released with classified material removed.
Government Response
Disagree.
The 'forensic audit', into the Air Warfare Destroyer project has not been undertaken by the Department of Defence. Rather, the Department undertook a Comprehensive Cost Review (CCR), in late 2014. The CCR was undertaken by the Air Warfare Destroyer (AWD) Alliance and is Commercial in Confidence. The CCR reviewed the cost and schedule of the shipbuilding score of the AWD Program and informed the AWD Reform Strategy.
The CCR report cannot be released as it contains information that is commercially sensitive to the Commonwealth and some third parties and is subject to strict confidentiality arrangements to protect the intellectual property of the parties involved. Accordingly, the report will not be publicly released as to do so would prejudice the Commonwealth's commercial and legal interests.
Similarly, the Winter-White Report cannot be released in any form as it contains sensitive commercial information. Its release could damage the interests of the Commonwealth and shipbuilding organisations as its contents relate to a range of commercial negotiations that are currently underway. The Minister for Finance and then Minister for Defence summarised the report in their announcement AWD Reform dated 4 June 2014, which is available on the Minister for Finance's website.
Recommendation 4
The committee recommends that the Australian Government take measures immediately to reverse the perilous downturn in Australia's naval shipbuilding industry, reduce the impact of the 'Valley of Death' and enable a program of continuous build by:
Government Response
Noted.
On 6 May 2016, the Government announced it has signed contracts with Navantia S.A. to build Australia's two replacement replenishment ships, avoiding a critical capability gap. Australia's current supply ship HMAS Success will reach end of life in 2021 and needs to be replaced as a matter of priority. Please see response to recommendation 1 for further information on the offshore build of the Auxiliary Oil Replenishment Ship.
On 5 May 2016, the Government signed a contract with Austal Ships Pty Ltd to build and sustain up to 21 steel-hulled vessels to replace the existing fleet of Pacific Patrol Boats as part of Australia's new Pacific Maritime Security Program. The Pacific Patrol Boat project represents a significant investment in Australian Defence industry with the boats to be built in Australia to be worth around $600 million, in addition to through-life-sustainment and personnel costs, which are estimated at around $1.4 billion over 30 years.
The Government announced on 4 August 2015 the centrepiece of its strategy for delivering a long‑term strong and sustainable Australian naval shipbuilding industry—the establishment of continuous build programs in Australia for the construction of the Navy's Future Frigates and Offshore Patrol Vessels. This approach was been reaffirmed by the Prime Minister in his speeches on 18 and 26 April 2016. This is the first time that any Australian Government has committed to a permanent naval shipbuilding industry for Australia.
The Future Frigate construction to replace the ANZAC class frigates will commence in 2020—three years earlier than scheduled under the previous Labor Government's Defence Capability Plan. The Government has also committed to bringing forward by two years the construction of the Offshore Patrol Vessels commencing in 2018 to replace the Armidale class patrol boats.
Over the coming decades, the Government's naval shipbuilding strategy will invest in Australia's naval capability and shipbuilding industry, putting it onto a sustainable long-term path, giving certainty into the future.
Recommendation 5
The committee recommends that the 2015 White Paper is prepared in such a way that all procurement proposals are costed and scheduled realistically, and informed by the need to have a continuous build program for naval ships.
The committee understands that, following the release of its 2015 Defence White Paper, the government will also publish a Defence Investment Plan and an enterprise-level Naval Shipbuilding Plan.
The committee recommends that both documents take note of the evidence provided in this report about the importance of having a continuous build program that will sustain a viable naval shipbuilding and repair industry.
Further that both documents, provide:
The committee recommends the establishment of an ongoing naval shipbuilding industry advocate to work with the Australian Government and the shipbuilding industry, including supply chain and SMEs. The shipbuilding industry advocate should advise Defence and industry during the development of the Defence Investment Plan and Naval Shipbuilding Plan.
Government Response
Agree in principle.
As noted in the response to recommendation 4, the Government recognises the significant value to Australia of having a skilled naval shipbuilding industry and is committed to ensuring the industry's long-term sustainability. Government has announced its strategy for delivering a long‑term strong and sustainable Australian naval shipbuilding industry through the establishment of continuous build programs in Australia. As announced by the Prime Minister on 18 April 2016 and 26 April 2016, two shipyards have been identified to implement the Government's commitment to a continuous build of naval vessels—Osborne in South Australia for the construction of major surface vessels and submarines, and Henderson in Western Australia for the construction of minor surface vessels. These decisions are consistent with the RAND recommendations.
The 2016 Integrated Investment Program and the Defence Industry Policy Statement were released with the 2016 Defence White Paper, which together present the Government's policy with respect to the strategic Defence and national security issues facing Australia, as well as the capabilities (both material and enabling) and Defence industry policy that will be required to address those issues. The Naval Shipbuilding Plan will bring together all of the elements of the Government's continuous naval shipbuilding strategy to:
Recommendation 6
The committee recommends that, given requisite capital investments have already occurred, and as the industry's only effective client, the Australian Government adopt an approach to domestic shipbuilding that ensures sustainable demand in order to realise returns on these investments.
The committee also recommends that, during the development of the forthcoming Strategic Naval Shipbuilding Plan, the Australian Government ensure that the Plan recognises the holistic economic value of any domestic shipbuilding project. It is the strong view of the committee that the Plan must also acknowledge the economic multiplier effect of domestic shipbuilding, including that expenditure generates a level of economic expansion beyond its initial value.
Government Response
Agree in principle.
The Government is committed to releasing a Naval Shipbuilding Plan. The Plan will focus on the delivery of continuous shipbuilding rather than modelling the economic affects of shipbuilding.
The RAND of Australia's Naval Shipbuilding Enterprise, released by the Government on 16 April 2015, noted that the cost of building naval surface ships in Australia is 30-40 per cent greater than United States benchmarks, and even greater against some other naval ship building nations.
RAND suggested that this premium can be reduced through reforms in Defence procurement and in the Australian naval shipbuilding industry.
The Government has already commenced the necessary reforms of Defence procurement activities through the First Principles Review of Defence, and through the August 2015 announcement of the long term commitment to naval shipbuilding for ships and submarines in Australia, as detailed in the 2016 Defence White Paper.
Australia cannot afford a naval shipbuilding industry at any price.
In return for the commitment to continuous build, Australia's naval shipbuilding industry must improve productivity and become more cost-competitive against international benchmarks.
The Government's continuous build strategy, and the adoption of the RAND principles for future naval shipbuilding programs, will help to reduce the Australian cost premium by up to half.
The conclusions of the Productivity Commission ' s Trade and Assistance Review 2014-15
are premised upon a cost premium of 30 per cent for a domestically built submarine. However the report states that the figure of 30 per cent is hypothetical; the Government has already identified that the premium will drop, by committing to the implementation of reforms of the naval shipbuilding industry, including:
A world without the death penalty: Australia's advocacy for the abolition of the death penalty
March 2017
Joint Standing Committee on Foreign Affairs, Defence and Trade Report
A world without the death penalty: Australia ' s Advocacy for the Abolition of the Death Penalty
Tabled 5 May 2016
Government's Response to Committee's Recommendations
Recommendation 1
The Committee recommends that the Attorney-General's Department conduct a review of the current legislative arrangements for extradition and mutual assistance to ensure that they uphold Australia's obligations as a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights.
Response
The Government accepts this recommendation. The Attorney-General's Department has reviewed the current legislative arrangements for extradition and mutual assistance for consistency with Australia's obligations as a Party to the Second Optional Protocol to the ICCPR and is satisfied that they are consistent.
Recommendation 2
The Committee recommends the Australian Federal Police (AFP) National Guideline on International Police-to-Police Assistance in Death Penalty Situations (the Guideline) be amended to include a stronger focus on preventing exposure of all persons to the risk of the death penalty, by:
" articulating as its primary aim preventing the exposure of persons to arrest or charge in retentionist countries for crimes that are likely to attract the death penalty "
The Government notes this recommendation. The AFP's primary aim is to enforce Commonwealth criminal law, contribute to combating complex, transnational, serious and organised crime that impacts on national security, as well as protecting Commonwealth interests from criminal activity in Australia and overseas. The AFP works with national and international partners to enhance safety and provide a more secure regional and global environment. To achieve this aim, the AFP facilitates the movement of information between countries in a manner that is consistent with Government policy in relation to crimes that attract the death penalty.
" explicitly applying the Guideline to all persons, not just Australian citizens "
The Government accepts this recommendation. The Guideline currently applies to all persons, not just Australian citizens.
The AFP must consider relevant factors before providing information to foreign law enforcement agencies if it is aware the provision of information is likely to result in the prosecution of an identified person, regardless of nationality, for an offence carrying the death penalty. A person's nationality is taken into account only in the context of consideration of any legal or prosecutorial provisions that may apply.
" including a requirement that the AFP seek assurances from foreign law enforcement bodies that the death penalty will not be sought or applied if information is provided "
The Government notes this recommendation.
The Government notes that foreign law enforcement partners cannot themselves provide binding assurances that the death penalty will not be applied if information is provided. This is outside the role and responsibility of police and law enforcement agencies. In the instances where assurances have been provided to Australia, they have usually occurred at Ministerial level.
The Government has and will continue to seek Ministerial assurances in appropriate cases where it is clear that the death penalty is likely to be imposed. In practical terms some factors can prevent this occurring, including:
a) in some limited circumstances, where the AFP is engaging with operational law enforcement representatives in high risk, time-critical situations, seeking binding assurances could jeopardise investigative outcomes. This may hamper the AFP's ability to combat transnational organised crime at its source, causing significant harm to Australia and its citizens; and
b) in many instances when it is not clear whether a death penalty offence may be applicable. Information requests can come at an early stage of an investigation, when an investigation is yet to identify crime types or all persons of interest.
" including a provision that, in cases where the AFP deems that there is a ' high risk ' of exposure to the death penalty, such cases be directed to the Minister for decision "
The Government accepts this recommendation in principle.
Under Section 37 of the Australian Federal Police Act 1979 the Commissioner controls the operations of the AFP. It is essential that law enforcement operations retain a measure of discretionary operational decision-making to effectively balance competing considerations, namely the preservation of public safety and the disruption of crime impacting the Australian community. As a result, decision-making in the pre-arrest phase is best made within the AFP.
Ministerial approval is currently required to provide information to foreign law enforcement agencies in any case where a person has been arrested or detained for, charged with, or convicted of, an offence which carries the death penalty.
" articulating the criteria used by the AFP to determine whether requests are ranked ' high ' , ' medium ' or ' low ' risk "
The Government accepts this recommendation.
The Guideline is currently being reviewed and will reflect this in the revised version.
Recommendation 3
In light of the United Nations' position that drug crimes, including drug trafficking, do not constitute 'most serious crimes' for which the death penalty may be applied under international law, the Committee recommends that the Australian Federal Police (AFP) obtain guarantees that prosecutors in partner countries will not seek to apply the death penalty before providing information in relation [to] these crimes. In situations where such guarantees cannot be obtained, the AFP should withhold provision of information that may be relevant to the cases concerned.
Response
The Government does not accept this recommendation.
The Government notes that foreign law enforcement partners cannot themselves provide binding assurances that the death penalty will not be applied if information is provided. An undertaking from a prosecutor not to seek to apply the death penalty may not be reliable where a Court can still impose the death penalty. Generally speaking, the Government does not consider it appropriate to seek, or rely on, an undertaking from a prosecutor. In the instances where assurances have been provided to Australia, they have usually occurred at Ministerial level.
Combatting serious drug crimes is a high priority for the Government and the Government's ability to detect, deter and prevent drug crimes would be impeded if Australia could not cooperate with states in the region that retain the death penalty. An inability to cooperate with foreign law enforcement partners poses risk of harm to the Australian community and significant impact to society.
Although desirable, some states will not agree to a blanket assurance that the death penalty will not be applied where convictions result from cooperation with Australia.
The National Guideline on International Police-to-Police Assistance in Death Penalty Situations is the most appropriate way to balance the need for effective cooperation on transnational crime and the commitment to protecting individuals from the death penalty.
The Department of Foreign Affairs and Trade will continue diplomatic efforts to encourage states to abolish the death penalty.
Recommendation 4
The Committee recommends that the Australian Government revisit the 2011 decision to decline becoming a member of the international group the 'Friends of the Protocol'.
Response
The Government accepts this recommendation. That decision will be reconsidered in the context of developing the whole-of-government strategy on advocacy for the abolition of the death penalty (see recommendation 8).
Recommendation 5
The Committee recommends that the Department of Foreign Affairs and Trade develop guidelines for the Department's support for Australians at risk of facing the death penalty overseas. This document should guide the coordination of:
The Government accepts this recommendation. Guidelines have been finalised and will be attached to DFAT's internal Consular Policy Handbook.
Recommendation 6
The Committee recommends that, where appropriate and especially in relation to public messaging, Australian approaches to advocacy for abolition of the death penalty be based on human rights arguments and include:
The Government accepts this recommendation. These arguments are already an integral part of the advocacy the Government undertakes in opposition to the death penalty.
Recommendation 7
The Committee recommends that the Attorney-General's Department amend the guidelines governing the Serious Overseas Criminal Matters Scheme and the Special Circumstances Scheme, and make necessary adjustments to the schemes' operation, to ensure that:
The Attorney-General's Department has reviewed the Commonwealth Guidelines for Legal Financial Assistance 2012 (the Guidelines) and is satisfied that the Guidelines in their present form, in combination with the Legal Assistance Branch's practice of assigning a case officer to a grant for the entirety of the grant, has resulted in achievement of the objectives stated in Recommendation 7.
Recommendation 8
The Committee recommends that the Department of Foreign Affairs and Trade coordinate the development of a whole-of-government Strategy for Abolition of the Death Penalty which has as its focus countries of the Indo-Pacific and the United States of America.
Response
The Government accepts this recommendation. Development of the strategy is underway and its content will be determined in consultation with relevant agencies and ministers. The Department of Foreign Affairs and Trade aims to have a publicly-releasable document finalised by mid-2017.
Recommendation 9
The Committee recommends that the goals of the Strategy for Abolition of the Death Penalty include:
The Government accepts this recommendation.
Recommendation 10
The Committee recommends that the specific aims of the Strategy for Abolition of the Death Penalty include:
The Government accepts this recommendation in principle. The Department of Foreign Affairs and Trade already undertakes many of the activities outlined in this recommendation, including bilateral advocacy in all of the countries identified. The specific aims of the strategy will be determined as the strategy is developed.
Recommendation 11
The Committee recommends that the following techniques, among others, be utilised to achieve the aims of the Strategy for Abolition of the Death Penalty:
The Government accepts this recommendation in principle. Specific techniques will be determined as the strategy is developed.
The Government notes that it already undertakes some of these activities, including:
Recommendation 12
The Committee recommends the Australian Government provide dedicated and appropriate funding to the Department of Foreign Affairs and Trade to fund grants to civil society organisations, scholarships, training, research and/or capacity building projects aimed at the abolition of the death penalty.
Response
The Government accepts this recommendation in principle. The Department of Foreign Affairs and Trade is providing grant funding of $320,000 per annum for the 2016-17 and 2017-18 financial years to civil society organisations working towards abolition of the death penalty. Funding for future years will be subject to budgetary considerations.
Recommendation 13
The Committee recommends that the Australian Government make available to the Department of Foreign Affairs and Trade ongoing operational funds to resource the preparation and implementation of the Strategy for Abolition of the Death Penalty, including a budget for adequate staffing.
Response
The Government accepts this recommendation in principle. The Department of Foreign Affairs and Trade is preparing a whole-of-government strategy using existing resources. Further resourcing will be considered in the development of that strategy, bearing in mind budgetary considerations.
Australian Government response to the Joint Standing Committee on Treaties Report 167:
Treaty on Extradition between Australia and the People's Republic of China (Sydney, 6 September 2007)
March 2017
Australian Government response to the recommendations of the Joint Standing Committee on Treaties inquiry into the Treaty on Extradition between Australia and the People ' s Republic of China
The Government thanks the Committee for its consideration of the Treaty on Extradition between Australia and the People ' s Republic of China (the Treaty).
The evolving nature of, and increased threats posed by, transnational crime requires Australia to have a robust and responsive extradition system that assists in effectively combating domestic and transnational crime, while providing appropriate safeguards. It is important to ensure that criminals cannot evade justice simply by crossing borders.
Bilateral treaties on extradition provide the framework for extradition processes and procedures to facilitate consideration of requests that are targeted to specific bilateral circumstances. Australia is currently a party to 39 bilateral extradition treaties and more than 20 multilateral treaty instruments which include extradition obligations.
Australia and China have an established law enforcement and international crime cooperation relationship supplemented by treaties on mutual assistance and the international transfer of prisoners and cooperation arrangements between relevant agencies. This extradition treaty will complement these existing international crime cooperation mechanisms.
Australia considers all extradition requests on a case by case basis, in line with the range of safeguards contained in the Extradition Act 1988 (the Extradition Act) and applicable treaties, including mandatory and discretionary grounds of refusal.
Recommendation 2
The Committee recommends that the extradition decision maker take into account reports from government and non-government sources regarding the degree to which China ' s criminal justice system currently complies with human rights and the rule of law, when making the decision to extradite an individual.
The Government accepts this recommendation.
In addition to the mandatory and discretionary grounds for refusing extradition in Articles 3 and 4 of the Treaty, and in section 22(3) of the Extradition Act, the decision-maker (the Attorney-General or the Minister for Justice) retains a broad discretion under section 22(3)(f) of the Extradition Act to refuse to surrender a person to an extradition country. The proposed Treaty does not displace the operation of any of the considerations that the decision-maker must have regard to under Australian law, including the residual discretion in the Extradition Act.
For the purposes of considering whether to refuse surrender under section 22(3), the decision-maker may consider all material reasonably available to assist them in determining whether the person should be surrendered. Assessment of these claims may include any
submissions put by the individual and representations or undertakings from the requesting country, including the extent to which the requesting country's criminal justice system complies with human rights obligations. The assessment may also consider country information, reports prepared by government or non-government sources, and information provided through the diplomatic network.
Recommendation 3
The Committee recommends that undertakings to provide a fair and open trial are routinely included in agreements to surrender an individual to China.
The Government notes this recommendation.
Decisions to surrender individuals are made by the Attorney-General or the Minister for Justice in accordance with the safeguards in the relevant extradition treaty and the Extradition Act, and are based on the particular circumstances of each case.
Article 4(c) of the proposed Treaty contains a discretionary ground for refusal of an extradition request where extradition would be 'incompatible with humanitarian considerations in view of that person's age, health or other personal circumstances'. This provision would cover issues that include injustice or oppression, particularly where they are intricately linked to the person's personal circumstances. Additionally, paragraph 22(3)(f) of the Extradition Act contains a general discretion to refuse surrender in circumstances where there are legitimate human rights concerns such as whether an extradited individual would have access to a fair trial. Relevant considerations may include the extent to which an individual would receive appropriate procedural guarantees in a criminal trial in the country to which he or she is being extradited.
It is open to the relevant decision-maker (the Attorney-General or the Minister for Justice) to request assurances from the requesting country about the treatment and conditions applying to a person upon extradition where concerns exist about whether that person would receive a fair and open trial. Assurances could include that the trial be held in open court, that the person has access to legal representation, that the person has an opportunity to test the evidence against them or that the person will be imprisoned in particular jails. The decision-maker would consider any individual's claims and any representations or assurances provided by the requesting country. The decision-maker may also consider country information, reports prepared by government or non-government sources and information provided through the diplomatic network.
It is appropriate that each extradition request be considered on a case by case basis.
Recommendation 4
The Committee recommends that the Attorney-General ' s Department supplement its current annual reporting framework for extradition cases with the following information for each case of an Australian national or an Australian permanent resident held in a foreign country:
The Government does not accept this recommendation.
The Department of Foreign Affairs and Trade (DFAT) already monitors trials, verdicts and sentences for Australians detained overseas through its portfolio responsibility to provide consular assistance to Australians in difficulty overseas, in accordance with the Consular Services Charter. This includes Australians who have been extradited. In FY2015-16, DFAT provided consular assistance in 1198 cases of Australians arrested overseas ('Arrest' cases involve Australians arrested and charged—whether detained or not—and whose trial processes are not yet finalised); and to an additional 391 Australian prisoners ('Prisoner' cases involve Australians who have been convicted and sentenced overseas, including those who have appealed their sentences). This information is already contained in DFAT'sAnnual Report and annual consularState of Play .
In any reporting to AGD specifically on extradited Australian citizens or permanent residents, DFAT would need to ensure that the privacy rights of individual consular clients are not breached. DFAT adheres to stringent obligations under the Privacy Act 1988 to protect the personal information of consular clients. Normally, in providing statistical data on consular case work, DFAT does not include statistics when there are five or fewer cases, as any information DFAT were to release could reasonably be expected to lead to those individuals being identified, and their privacy rights breached. In this context, DFAT notes the low number of cases of Australians extradited to foreign jurisdictions, their usual high media profile, and the likelihood that the data provided would be incomplete because of privacy obligations.
Recommendation 5
The Committee recommends that, in the event that a foreign national is extradited to their country of citizenship, the extradition should be made on the understanding that the Australian Government will be informed through its diplomatic representatives of details of the trial, whether a consular official was able to attend, the outcome of any prosecution and, on request, the location and general health of the person while in custody as a result of a conviction.
The Government does not accept this recommendation.
While Australia has implemented monitoring measures in relation to Australian nationals extradited overseas, Australia's ability to introduce monitoring regimes for non-Australians extradited overseas is limited.
The Vienna Convention on Consular Relations provides for a State's right to directly monitor proceedings against its nationals who are subject to detention or prosecution in another State. TheVienna Convention and Australia's various bilateral agreements on consular relations—including with China—do not give the Australian Government access to foreign nationals extradited to another country. Access to any dual national in their other country of nationality requires the consent of the host government, with consent to access usually premised on the individual having used their Australian passport to enter that country. However, if concerns were held about the welfare of an individual, consular officials could make enquiries about their welfare of the host government, including requesting consular access to a dual national if appropriate.
As submissions and responses to this and previous Committees' inquiries have stated, the Government considers that concerns relating to the potential abuse of human rights of persons extradited from Australia are more appropriately addressed during the extradition process. For example, subsection 22(3) of the Extradition Act contains a mandatory ground for refusal of an extradition request where the decision-maker (the Attorney-General or the Minister for Justice) have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture.
It is also open to the decision-maker (the Attorney-General or the Minister for Justice) in an extradition matter to consider, where appropriate, whether ongoing monitoring of an extradited individual's prosecution, sentence and welfare should be a condition of the extradition.
Specifically to the proposed Treaty between Australia and China, the Government notes that Article 19 of the proposed Treaty requires the requesting country to provide information about the proceedings or execution of a sentence against a person extradited under the Treaty. This would apply regardless of the person's nationality.
While China does not recognise dual nationality, the Agreement on Consular Relations Between Australia and China (2000) (the Consular Agreement) enables consular access to a Chinese-Australian dual national who enters China on their Australian passport (Article 10(3)). If a Chinese-Australian dual national were to be extradited from Australia to China, the decision-maker could seek China's agreement, as a condition of the extradition, that the individual enter China using their Australian travel document, or otherwise that the Consular Agreement would apply to the person whose surrender is sought.
Recommendation 6
The Committee supports the Treaty on Extradition Between Australia and the People ' s Republic of China and, noting the power of the Minister for Justice to refuse extradition under the Extradition Act, recommends that binding treaty action be taken.
The Government accepts this recommendation and is progressing the making of regulations under the Extradition Act to implement the Treaty.
Dissenting Report Recommendation 1
That binding treaty action for the Treaty on Extradition Between Australia and the People ' s Republic of China be delayed until after an independent review of the Extradition Act 1988 (Cth) to ensure that Australia ' s extradition system continues to be consistent with community expectations and international legal obligations regarding the rule of law and human rights.
The Government does not accept this recommendation.
The Extradition Act has been subject to a number of reviews in recent years. The Government is committed to ensuring that Australia's domestic extradition regime under the Extradition Act operates in a manner that is consistent with Australia's international law obligations, including international human rights law obligations.
Australia conducted a comprehensive review of its extradition arrangements from 2005-2012, which resulted in amendments that passed in 2012 to modernise the extradition process, while maintaining appropriate safeguards and protecting human rights. These amendments were developed following an extensive public consultation process, with public comment sought and considered in 2005, 2009 and 2011. The 2012 amendments were reviewed by the House of Representatives Standing Committee on Social Policy and Legal Affairs. The Committee considered the amendments to be well balanced and considered. The Attorney-General's Department is currently conducting an internal review of the 2012 amendments to examine the extent to which the amendments have achieved their intended goal of streamlining the law while maintaining appropriate human rights safeguards.
In addition, further to Recommendation 1 of the Joint Standing Committee on Foreign Affairs, Defence and Trade's Report from its Inquiry into Australia's Advocacy for the Abolition of the Death Penalty, released in May 2016, the Attorney-General's Department recently conducted a review of the current legislative arrangements for extradition for consistency with Australia's obligations as a Party to the Second Optional Protocol to the International Covenant on Civil and Political Rights. The government response to the 13 recommendations from this Inquiry is expected to be tabled shortly.
The Extradition Act provides for ongoing judicial review of decisions relating to extraditions in Australia. It is open to the person the subject of an extradition request to challenge each stage of the extradition process in Australia. This includes reviews of magistrates' decisions under the Extradition Act, and reviews of executive determinations made pursuant to sections 16 and 22 of the Extradition Act, which are subject to judicial review under the
Judiciary Act 1903 and the Constitution.
That the Senate take note of the Senate Economics References Committee reports Part II: Future of Australia's naval shipbuilding industry: Future submarines andPart III: Future of Australia's naval shipbuilding industry: Long-term planning .
… every lever of policy that we can engage, it secures our successful transition to the economy of the 21st century and the jobs which our children and grandchildren are entitled to expect.
… it is important that we use steel of a specification that France currently uses to design its submarines, …
… it is very specialised steel. It is not really used for anything else. It is used for submarine hull construction.
… at the moment we are currently looking at the capacity of the Australian steel producers to produce steel to the very demanding specification that is required for submarine construction, …
The committee recommends that a Royal Commission into violence, abuse and neglect of people with disability be called, …
That the Senate take note of the report to parliament on livestock mortality during export by sea for the reporting period 1 July to 31 December 2016.
That senators be discharged from and appointed to committees as follows:
Select Committee on Lending to Primary Production Customers
Appointed— Senators Chisholm and Moore
Participating members: Senators Bilyk, Brown, Cameron, Carr, Collins, Dastyari, Dodson, Farrell, Gallacher, Gallagher, Ketter, Kitching, Lines, Marshall, McAllister, McCarthy, O'Neill, Polley, Pratt, Singh, Sterle, Urquhart and Wong.
National Health Amendment (Pharmaceutical Benefits) Bill 2016
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
The National Health Amendment (Pharmaceutical Benefits) Bill 2016 amends the National Health Act 1953 to support the efficient operation of the Pharmaceutical Benefits Scheme (PBS).
The PBS has been providing affordable access to medicines for Australians for over sixty years and is rightly respected for the high quality, cost-effective services it delivers. In the past year, over 291 million PBS prescriptions have been dispensed through almost 5,900 PBS approved suppliers, including community pharmacies and hospitals, and over 10.8 billion dollars has been paid in tax-payer funded subsidies for those medicines.
For the PBS to maintain its ability to support an increasing number and range of services, it is essential that it embraces change and new technologies. The legislative changes being proposed today are part of a process of renewal for the rules and systems that underpin it.
This Bill proposes amendments which will support the PBS in three different ways. Specifically, the changes will improve efficiency across the entire Scheme by:
Use of computer programs for administrative actions and decision-making
The first of the amendments provides the opportunity for the PBS to take a major leap forward in its use of technology. The new provisions support the use of computers for fully automated processing of administrative decisions.
The functions that could be automated include any function for which the decision‑making power is held by the Minister for Health, the Secretary of the Department of Health, or the Chief Executive Medicare.
The advantages of using automated processing to determine whether an incoming application, request, or claim meets certain criteria are many. Computer programs handle complex algorithms with ease, are available whenever required, are not subject to bias, and respond instantaneously.
Automated processing reduces errors, increases accountability and generates easily auditable transaction records. Users can be confident that decisions are uniform and fair.
Substitute decision for computer decisions
However, as a safeguard, the amendments also provide for the person who holds responsibility for a function, or their delegate, to make a decision personally or make a substitute decision to replace the computer decision, if required. This is important to ensure that if a computer program is not operating correctly or has taken an action that is different from the decision that would have been made by the responsible person, that action can be over‑ruled and replaced without the need for formal review under administrative law.
Appeals for computer decisions and substitute decisions
An added protection is that where merits review by the Administrative Appeals Tribunal is currently available for a PBS decision, this will continue to apply regardless of whether the decision has been made by a computer or a person, or has been substituted by a person.
Use of computer decision-making
The first administrative functions to transition to computer decision‑making are the assessment of payments to pharmacies for dispensing PBS medicines and the processing of requests from prescribers for approval to write certain prescriptions.
Online PBS claims processing
Since 2004, PBS Online has provided real-time connectivity between pharmacies and the Department of Human Services. This interaction allows patient entitlements, prescription details and special authorities to be validated, and the claim payment to be assessed, during the dispensing process.
Computerised decision-making will enable the claims computer system to match payment assessments against a pharmacy's certification of supply and take the administrative actions that would otherwise be taken by the Chief Executive Medicare.
Online PBS prescribing authorities and approvals
For prescribers, computerised decision‑making will mean that requests to prescribe 'authority‑required' PBS medicines will be able to be processed online via prescribing software.
At present, most prescribers contact the Department of Human Services by telephone or in writing for approval by a government officer.
When requesting authority prescriptions for their patients, prescribers are asked a number of questions by the Department of Human Services in order to confirm patient eligibility.
The questions are based on the restriction that has been recommended by PBAC and approved by the Minister as part of the listing of medicines on the PBS.
The questions can vary from checking appropriate age, sex and weight of the patient to more complex queries such as the result of the patient's last platelet count or whether the requested medication will be used in conjunction with another medication or as a monotherapy.
The telephone approval system has been an on-going concern for doctors for many years. It is one of the health processes most often nominated for red tape reduction.
In 2015-16, the Department of Human Services received 6.8 million requests for prescribing approvals by telephone and post.
Because the approval number must be included on the prescription, telephone requests are made during the patient consultation. The average time taken per call is 1 minute 27 seconds.
With the introduction of the Online PBS Authorities system, the majority of telephone requests will be able to go online. For requests not suitable for online processing, the prescriber will be able to speak to a person. For complex therapies, most requests will still need to be in writing, at least for the time being. As online capability expands, more complex requests will be handled online.
The development of online transactions for authority approvals has involved many contributors. These include medical software providers, medical and pharmacy organisations, the Pharmaceutical Benefits Advisory Committee and the Department of Human Services. I acknowledge their skill and hard work in delivering this project.
Supply of PBS medicines at alternative premises following a disaster
The second group of amendments in the Bill will reduce administrative requirements for PBS pharmacies following a disaster.
The current legislative provisions for supplying PBS medicines at other premises reflect that life does not always go to plan and that pharmacies, like any other business, can find themselves caught up in catastrophes and events beyond their control.
In the aftermath of a disaster, the ability for a pharmacy to resume operating without delay can be important, not only to the business, but to the recovery of the community and to individuals who may have lost possessions, including medicines.
Operation of pharmacy location rules
Since 1990, the ability for a pharmacist to obtain approval to supply PBS medicines has been subject to pharmacy location rules. Their purpose is to ensure that access to PBS medicines is available via a suitable geographic spread of PBS-approved pharmacies, including in rural and remote regions of Australia.
The operation of the location rules is being considered separately as part of the Review of Pharmacy Remuneration and Regulation led by Professor Stephen King. The changes in this Bill are not related to the Review.
The location rules also include limits on how frequently and how far a PBS pharmacy can move from its current site. This helps to keep pharmacies connected to their local areas and communities.
However, for exceptional events some flexibility is required. Refusing to allow a pharmacy to move to other premises could make an already difficult situation worse and would not be in the interests of the local community.
Current provisions for supply at other premises
Under the current legislation, a PBS-approved pharmacist can supply PBS medicines from other premises prior to obtaining PBS approval. Claims are paid at 90 per cent of the full amount until approval for the other premises is obtained. The current provisions allow a pharmacist to set up quickly at another site in an emergency and supply PBS medicines while the approval process for the new location is being sorted out.
Because a PBS approval number is tied to specific premises and cannot be transferred, obtaining PBS approval for the new site involves submitting a relocation application to the Australian Community Pharmacy Authority, even if the move is only temporary.
The application must contain full documentation, including evidence of legal right to occupy, council approval, public access, and distance measurements from other pharmacies. In addition, it must contain evidence of the exceptional circumstances or event.
In a disaster situation, preparing an application of this kind can be onerous. The pharmacy proprietor may need to recover in conditions where local government services and other businesses are also disrupted. It may be weeks before the required information can be compiled. This compounds the losses for the pharmacy as the flat 10 per cent reduction on payments for PBS claims continues until the approval is in place. The lost PBS subsidies cannot be recovered later.
Moving back to the original pharmacy means repeating the process in reverse. Overall, two full applications and two new PBS approval numbers are involved. For each new approval number, dispensing labels and pharmacy stationery need to be reprinted and a new public key infrastructure software certification is required for claiming.
The process carries high administrative overheads in a stressful situation and for what is usually a temporary move.
Another problem with the current arrangements is that although they are intended to be used in exceptional circumstances, experience has shown that that is not always the case.
Instead, the provisions are sometimes used where a PBS pharmacy is relocating for any reason. In these situations, supply of PBS medicines commences at the unapproved premises while the approved pharmacy is still operating. PBS claims are made from the approved pharmacy at the full rate, and from the unapproved premises at the 90 per cent rate, using the same PBS approval number. This continues until an application for PBS approval at the new site is successful, which may take several months. Use of a PBS approval number at two sites simultaneously in this way is contrary to the policy intention of the current law.
New provisions for supply at alternative premises following disaster
The proposed amendments will improve arrangements for PBS pharmacies genuinely affected by disaster. The changes will allow an affected pharmacy's PBS approval number to be used to supply PBS medicines at alternative premises in substantially the same locality for up to six months until, either supply resumes at the original pharmacy, or a new PBS approval number is obtained for a different site.
PBS claims will be paid at the full rate, not at 90 per cent, while an approved pharmacy is operating from alternative premises after a disaster.
The amendments make it explicit that the new provisions apply only for disaster or exceptional circumstances, only when the PBS-approved pharmacy cannot operate, and only for one alternative premises at a time.
The pharmacist will be required to provide information to the Secretary of the Department of Health regarding the disaster or event, the reasons the approved pharmacy is beyond use, and the nature and location of the alternative premises. The Secretary will be responsible for determining whether exceptional circumstances and locality requirements are met and for granting permission for up to six months. A permission can be extended for an additional period via a similar process if clean‑up or repairs take longer than expected.
What does or does not constitute disaster or exceptional circumstances, what is or is not substantially the same locality, and the kind of documents or evidence required in an application can be set out in legislative instruments, if necessary.
Benefits for pharmacies affected by disaster
The average number of pharmacies affected by disaster annually is usually around three. The number in the past year has been higher, seven in total. One was due to storm damage and six due to fire.
The new provisions will reduce administrative effort, time and costs for pharmacists and support continuity of access to PBS medicines for the communities they serve. The simplified requirements will allow a forced temporary move to be handled accordingly, rather than be treated as two separate full‑scale relocations. Payment of PBS claims at the full rate will reduce unnecessary losses to pharmacy businesses.
Repeal of current ' other premises ' provisions
The amendments also repeal entirely the current provisions regarding supply of PBS medicines at other premises prior to PBS approval.
This will mean that the only situation in which it is legal to supply PBS medicines at alternative premises is when the approved pharmacy cannot operate due to disaster or exceptional circumstances, and only for as long as necessary due to the disaster.
The repeal of the current provisions will also provide clarity that supply of PBS medicines must not occur at or from an approved pharmacy and other premises, under the same approval number, concurrently, in any circumstances.
Where current arrangements are being used inappropriately to relocate an approved pharmacy or to supply PBS medicines via a pharmacy which is not PBS-approved, transitional arrangements will allow a maximum of six months for a PBS approval to be obtained, or for supply at, or via, the unapproved pharmacy to cease.
Payment of PBS concessional entitlements on date of death
The third change in the Bill is a technical correction relating to concessional entitlements.
Health policy has always been that concessional entitlements apply for PBS medicines obtained on the day of a person's death. Under social security legislation, where eligibility is decided, concessional entitlements cease on the day prior to death. This timing is to allow the payment of other social services benefits to apply from the date of death.
To account for this difference, claims for PBS prescriptions supplied for a concessional beneficiary on the day they die need to be adjusted. Since streamlined processing of claims was introduced in April 2015, this adjustment no longer occurs.
The proposed amendments modify the definitions of concessional beneficiary and dependant for PBS purposes to ensure that PBS entitlements apply until midnight on the day a concessional beneficiary or a dependant dies.
Over 146 million PBS prescriptions were supplied for concessional beneficiaries last year. Of these, less than a thousand were supplied on the date of death. For these prescriptions, there is a shortfall in the payment to the pharmacist equal to the difference between the general patient co‑payment and the concessional co‑payment. This is currently a difference of $32.10 per prescription. The amount that would be owing across all PBS pharmacies is estimated to be accruing at around $2,000 per month.
Retrospective commencement of the amendments from 1 April 2015 provides for back payment of outstanding amounts on prescriptions since then.
There is no change to PBS costs as PBS policy and funding has always provided for subsidy of these prescriptions. There is no change to the operation of other social services entitlements.
I acknowledge the patience of the Pharmacy Guild of Australia and its members in relation to these outstanding payments. I trust that this technical change will assist in resolving the situation as soon as possible.
Summary and close
The changes proposed in this Bill will deliver efficiencies that will improve the operation of the PBS. I am confident they will be welcomed by PBS users.
The ability to use computerised decision‑making for PBS processes reflects the Government's commitment to e-Government and to using digital health services to improve health outcomes for Australians.
For pharmacists, the changes will reduce payment times and administrative red tape.
For prescribers and patients, online prescribing approvals will return precious minutes lost to telephone calls back to consultation time.
Transport Security Amendment (Serious or Organised Crime) Bill 2016
My right to exist is constantly under fire and … under threat. I am a … victim of casual and impersonal racism, on public transport, in the supermarket … I have been chased down the streets … But this isn't the Australia I have grown up in. It's not the future that I want.
Eulogy — Noeline I kin
21st February 2017 — International Club Mareeba
As delivered: Senator Ian Macdonald
On behalf of everyone here and the hundreds who couldn't be, can I offer personal and very heartfelt condolences to Noeline's Family — to Noeline's wonderful daughters Kirralee, Gabriella and Tabitha, Mitch & Jay and to Harper, to her best friend and devoted husband, Trevor to her mother Julie and brother Warren who have suffered so much is these last couple of years, and Mickey.
Our condolences also to Noeline's very extensive extended family who have supported her so much. You know, Noeline always would joke with me in an electoral context and say if all of her and Trevor's families voted for her she would win by a country mile - and they did — and she did! I know there are many of them here today and our thoughts are with you
The family particularly, and all of us, have lost a wonderful and caring person who has touched us all in different ways. Noeline also had other families who knew, respected and indeed loved her as much as her own family and I will return to mention these shortly.
But, for the moment, can I share a brief snapshot of Noeline's life that her family have helped me put together.
Noeline was born on the 18th of May 1969. A beloved daughter of Noel and Julie Ikin, and a precious sister for Warren Ikin.
Her early childhood was spent in Mareeba, where her passion for animals evolved. Her dogs wore human clothes, the horse's manes were always decorated, and all the poultry had names.
In her teenage years she met her best friends Jayne Hogarth and Jill Cowie, at Mareeba State School. At school Noeline loved her sports. She represented Mareeba high school in softball, indoor cricket and vigoro.
Whilst at high school Noeline was keen to become a vetinary nurse, and volunteered with Dr David Gilchrist. It was he, who encouraged her to gain a university degree, which she completed at James Cook University. Whilst at university, she did volunteer work for a wild-life sanctuary, and would sneak orphan possums into her campus dorm to care for them.
After finishing her bachelors of science degree, she married Peter Gross, and had Tabitha in 1991. When Tabitha was 5 months old, they relocated to Adelaide where Noeline worked at the Cudlee Creek Wildlife Park and Zoo.
But, the bush called her back, and they returned to Mareeba, where she became the curator of the Kuranda Noctarium. She then gave birth to Gabriella in 1993. Mossman was their next abode, where Noeline was employed at the Habitat in Port Douglas. After Kiralee was born in 1996, Noeline moved on to her next big project, which cultivated her enduring passion for landcare/management, the Mareeba Wetlands. There she met many lifetime friends through the Savannah Guides.
After sometime, her first marriage ended, and she relocated to Georgetown, where she worked for the Northern Gulf Resource Management Group. This career choice, exemplified her passion for conservation, and her care for community. She was involved in a great number of projects, including the ghost nets project, wild river legislation, natural disaster response and recovery arrangements, farm management deposits, rural debt reduction, business improvement packages, grass roots innovations, uranium mining, and the gulf horizons foundation.
During this time, she lived for her children. She was a mother, a teacher, a handyman, a best friend, a mentor, a landscaper, a chef (though according to her daughters some nights this one is debatable), a nurse, and she was their biggest role model and inspiration. During her time in Georgetown she met her current husband Trevor Arnett. After some attempts at courting her, with roses in shoe boxes, they were married in October 2010. It was a marriage filled with love and devotion. Their wedding cake stated 'today I marry my best friend'. That is a true reflection of what their marriage has been.
Through Noeline's hard work ethic, she became the CEO of the Northern Gulf Resource Management Group. But over time, the frustration of red tape, and a desire to do more, led her to new pursuits. She began as a councillor for the Etheridge Shire. Then she ran for the seat of Kennedy in 2013. This was a whirlwind campaign filled with lots of laughter, some drunk dancing on pool tables, relationships with a significant number of people she admired (including many of you here today) and some of her fondest memories. Whilst she won the election on primary votes, the secondaries unfortunately just put her under the line.
This did not dampen her desire to help her community. Despite not being elected, she continued to work hard for her community. She became involved in a number of projects such as crazy ants, and the Mission Beach Aquatic Centre.
In the 2016 election, she was predicted to win. But, her campaign was cut short, as she was diagnosed with a stage four brain tumour. After her diagnosis, she decided to fight, as Noeline does best. Whatever obstacle was sent her way, she thwarted them with her never-ending positivity. She spent this time with her family, and they have assured me that not one day went past that she didn't have a laugh. Not a day went by that she wasn't filled with love.
On the 11th of February, Noeline passed away, but she passed, with the knowledge that she was loved, by her family, and by each and every one of you.
Through this Eulogy, we have heard her story, but through her heart, we will remember who she was.
Can I seek your indulgence to add a few personal reflections.
Rarely have I met a person so dedicated to her family - and her community in the wider sense.
I only came across Noeline in the latter part of her all too short life when she was leading the Northern Gulf NRM group. And from my very first encounter I knew I was with a true leader who was destined to make an impact on public life.
The Northern Gulf, NRM, the people of Georgetown , and the wider Gulf/Northern community was indeed her second family
Her leadership across the Gulf with all stratas of society was legend and this extended to the natural resource management industry across Australia.
Hers was a tough job with limited resources but she achieved so much and encouraged so many people - in work, in play, and in need. I know parents in Canberra whose son had gone off the rails and who was really lost to this world but Noeline and Trevor took him in and changed his life completely. Those parents will never forget Noeline and Trevor.
Listing her achievements is an impossible task although we did mention a few previously. I still continue to be amazed at the way she convinced the Federal Government that Exceptional Circumstances Benefits (which everyone knew to be to help drought affected properties), should be paid out to those in the Gulf who were not affected by drought but inundated by flood waters for months. Her powerful advocacy, with the benefit of her science and research skills, saved many enterprises at that difficult time for many. She had her sights set on the problems of debt ratios in the bush when her illness stuck.
And on that fateful day in my office in Canberra when she had the seizure that was the first sign of the horrors to come, she was in Parliament at her own expense working on a number of issues including her informed advocacy on the yellow crazy ants infestation.
Yet another of Noeline's families was the political party that she and I, and Warren Entsch, Andrew Cripps, James McGrath, State President Gary Spence, Teresa Craig, Michael Trout, Ewen Jones, Dennis and Robyn Quick, those close to her in my office, and many in this room, share. And it always amazed me of the very high regard in which she was held by many in that family who had only met, or even seen her, once. It was incredible how this little girl from way up there in the bush, captured the hearts and admiration of so many in the hard faced cynical circle of politics.
They could see her role in life.
In my early encounters with Noeline, she shared the common disdain that many hold for politicians and she assured me she was not political and had never followed or even bothered with apparent political machinations. But on what was perhaps the only occasion when I knew more than Noeline, I would tell her that she was a born representative of the people, and would one day lead the Country.
Through frustration with the system and what she saw as the opportunities to make her magnificent vision reality, and chance to really help people and communities, she finally agreed to run for Parliament in the classic contest of David and Goliath. But first we had to counter the entrenched view of party elders that to beat Goliath you needed another big, loud, male who could wear big hats! I knew I had what we really needed —the exact opposite — a sensible, intelligent, caring person who would listen to people and who would fight for their causes without any consideration for herself.
It wasn't an easy campaign as she rolled the swag and took off to talk to people. But once voters talked to her they knew she was what was needed. We didn't have a lot of resources but we had a lot of determination to succeed. And along the way we had a lot of fun - and learnt the home and personality of every dog and those 5:00am Mc Muffins at Maccas in Mt Isa were something not to be missed.
But she was an inspiration to be with — always positive, always cheerful and always determined, always helping and always making friends.
The result in that election confounded all of the political pundits with the biggest swing in that election and one of the biggest in federal political history.
I have absolutely no doubt that had not fate intervened, Noeline would have been a leading light in the Federal parliament for many years to come.
Noeline's passing is a tragedy for her families — all of them — but it also a real tragedy for the bush and indeed for the nation. She would have made such a difference to parliament, to the Nation and perhaps most importantly, to the people she represented. It will be up to one of her daughters to carry on her vison and determination.
We will all have our own memories of this wonderful person. But those of us who had the privilege of meeting with her in recent times, would have seen the courage and determination and thought for others that was the hallmark of her life. Although she knew she had a battle she couldn't win she wouldn't let others know of her pain and sadness in what was her typical regard for others before herself. A truly remarkable woman that we have been privileged to know.
Rest in Peace Noeline.
The seven RAPAD councils … are reeling from the Government's failure to repay councils under the Natural Disaster Relief and Recovery Arrangements (NDRRA) for these plant and equipment costs, which they incurred in good faith. Some RAPAD councils are owed more than their annual general rates revenue, in one case more than 150% of their rates base.
The Government's refusal to repay councils is particularly distressing when the Government has called on councils to contribute to budget repair and then a value-for-money solution is rejected in favour of using more expensive contractors.
The Coalition Government, through the Public Private Partnership and Best and Final Offer tender process, has driven a better deal, better value for money and additional amenities for the community of Bendigo and north west Victoria.
… encased in their ridiculous Lycra condoms, propelled around city streets by a moral and environmental superiority.
I hereby revoke the Presidential Memorandum of January 23, 2009, for the Secretary of State and the Administrator of the United States Agency for International Development (Mexico City Policy and Assistance for Voluntary Population Planning), and reinstate the Presidential Memorandum of January 22, 2001, for the Administrator of the United States Agency for International Development (Restoration of the Mexico City Policy).
The United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part.
Ensure universal access to sexual and reproductive health and reproductive rights as agreed in accordance with the Programme of Action of the International Conference on Population and Development and the Beijing Platform for Action and the outcome documents of their review conferences.
In no case should abortion be promoted as a method of family planning—
Prevention of unwanted pregnancies must always be given the highest priority and every attempt should be made to eliminate the need for abortion. Women who have unwanted pregnancies should have ready access to reliable information and compassionate counselling. Any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process. In circumstances where abortion is not against the law—
such abortion should be safe. In all cases, women should have access to quality services for the management of complications arising from abortion. Post-abortion counselling, education and family-planning services should be offered promptly, which will also help to avoid repeat abortions.
All the medical evidence, as well as everything we know from our daily interactions with women, is unequivocal: if you take safe abortion services out of the reproductive healthcare package, it exposes women to risk.
Every year, 21.6 million women are so desperate to end their pregnancy they put their lives on the line by risking an unsafe abortion. Thousands of them die and millions more are left with life altering injuries. Agreeing to the Mexico City Policy—
would mean accepting their fate and turning our backs on the very women who need us most.
Attempts to stop abortion through restrictive laws—or by withholding family planning aid—will never work, because they do not eliminate women's need for abortion. This policy only exacerbates the already significant challenge of ensuring that people in the developing world who want to time and space their children can obtain the contraception they need to do so.
It denies people the right to make choices that could improve their living conditions, from the girl who could have avoided an unwanted pregnancy and continued her education, to the mother of five who could have averted the life-threatening risk of an unsafe abortion. The impact of the Mexico City Policy will be catastrophic and it is women in developing countries who will pay the price.
We stand united in opposition to the U.S.-imposed Global Gag Rule, which undermines women's health, rights and autonomy … The Global Gag Rule further hurts an already-dire situation by weakening the effectiveness of U.S. foreign assistance funding by making capable and effective partners ineligible for funds. As you know—
complications arising from pregnancy, childbirth and unsafe abortions are leading killers of women and girls in developing countries, killing 830 women a day.
Everyone has the right to freedom of thought, conscience and religion…
… to manifest his religion or belief in teaching, practice, worship and observance.
… does not have the power to control the contents of SRE—
under the current provisions of the Education Act.