The PRESIDENT (Senator the Hon. Stephen Parry) took the chair at 09:30, read prayers and made an acknowledgement of country.
Migration Amendment (Protection and Other Measures) Bill 2014
(5) Schedule 2, page 10 (line 1) to page 15 (line 9), to be opposed.
(1) Clause 2, page 2 (table items 5 to 8), omit the table items.
(5) Schedule 1, item 14, page 8 (lines 1 to 15), to be opposed.
The committee divided. [09:51]
(The Chairman—Senator Marshall)
(1) Schedule 1, item 15, page 9 (lines 3 to 12), omit subitems (1) and (2), substitute:
(1) Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule applies to an application made on or after the commencement of that Part.
(2) Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule also applies in relation to an administrative process starting on or after the commencement of that Part.
[Amendment (2) will only be moved if the amendments on sheets 7681 and 7682 are not agreed to.]
(2) Schedule 1, item 15, page 9 (lines 13 to 17), omit subitem (3), substitute:
(3) Sections 91W, 91WA and 91WB of the Migration Act 1958 as amended by Part 2 of this Schedule apply to an application for a protection visa made on or after the commencement of that Part.
(3) Schedule 2, item 6, page 12 (lines 21 to 30), omit subitem (2), substitute:
(2) Subitem (1) covers an assessment made on or after the day this item commences.
(4) Schedule 3, Part 2, page 19 (line 1) to page 20 (line 19), omit the Part, substitute:
Part 2—Application
14 Application of amendments
The amendments made by this Schedule apply in relation to a person who arrives in Australia after the day this item commences (whether or not that person had been in Australia previously).
(5) Schedule 4, item 34, page 38 (lines 2 to 32), omit the item, substitute:
34 Application of amendments
The amendments made by this Schedule apply in relation to an application to the Migration Review Tribunal or the Refugee Review Tribunal for review of a decision if the application is made on or after the commencement of this Schedule.
The committee divided. [10:03]
(The Chairman—Senator Marshall)
(11) Schedule 3, item 1, page 16 (lines 7 to 10), omit paragraph (b), substitute:
(b) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(12) Schedule 3, item 6, page 17 (lines 11 to 14), omit paragraph (b), substitute:
(b) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(13) Schedule 3, item 15, page 19 (line 23), omit "class", substitute "kind".
(14) Schedule 3, item 15, page 19 (line 29), at the end of paragraph (3)(c), add "granted before 2 December 2013".
(15) Schedule 3, item 16, page 20 (line 13), omit "class", substitute "kind".
(16) Schedule 3, item 16, page 20 (line 19), at the end of paragraph (3)(c), add "granted before 2 December 2013".
(17) Schedule 4, item 11, page 23 (line 30), omit "7 days", substitute "14 days".
(18) Schedule 4, item 11, page 24 (lines 20 and 21), omit "7‑day period", substitute "14‑day period".
(19) Schedule 4, item 26, page 32 (line 3), omit "7 days", substitute "14 days".
(20) Schedule 4, item 26, page 32 (lines 24 and 25), omit "7‑day period", substitute "14‑day period".
(1) Clause 2, page 3 (at the end of the table), add:
(2) Page 38 (after line 32), at the end of the Bill, add:
Schedule 5—Technical corrections
Counter ‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014
1 Subsection 2(1) (table items 6, 7, 9, 11 and 12)
Omit " Migration Amendment (Protection and Other Measures) Act 2014 ", substitute "Migration Amendment (Protection and Other Measures) Act 2015 ".
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
2 Subsection 2(1) (table items 4A, 13 and 15)
Omit " Migration Amendment (Protection and Other Measures) Act 2014 ", substitute "Migration Amendment (Protection and Other Measures) Act 2015 ".
3 Division 2 of Part 1 of Schedule 5 (heading)
Repeal the heading, substitute:
Division 2—Amendments if this Act commences after the Migration Amendment (Protection and Other Measures) Act 2015
4 Division 1 of Part 3 of Schedule 5 (heading)
Repeal the heading, substitute:
Division 1—Amendments if this Act commences before the Migration Amendment (Protection and Other Measures) Act 2015
That this bill be now read a third time.
The Senate divided. [10:14]
(The Deputy President—Senator Marshall)
Telecommunications Legislation Amendment (Deregulation) Bill 2014
Telecommunications (Industry Levy) Amendment Bill 2014
Maximum transparency is going to be given to this project.
But our commitment is, our focus is, to have a much greater level of transparency and openness.
The bottom line is that as far as the NBN project is concerned, the government's commitment is to be completely transparent …
The main promise, the most important thing we said about the NBN was that we would tell the truth, and we would liberate the management of NBN Co to tell that truth.
You will be aware that Government policy provides for increased scrutiny and transparency of NBN Co and its activities.
The Government requires a high degree of transparency from NBN Co in its communication with the public and Parliament.
… weakening of the obligations imposed on Telstra to continue to deliver the STS USO, Payphones USO or emergency call services.
We support the delivery of universal service and other public-interest telecommunications services for all Australians through the implementation and effective administration of contracts and grants.
Our aim is to promote high quality and efficient contract and grant management to maximise the benefit for consumers and manage risks appropriately, within a transparent and accountable legislative framework.
That these bills be now read a third time.
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015
(1) Schedule 1, item 1, page 3 (line 14), omit "specified in or under section 187AA", substitute "specified in section 187AA".
(4) Schedule 1, item 1, page 8 (line 1) to page 9 (line 2), omit subsections 187AA(2) to (5), substitute:
(2) For the purposes of items 2, 3, 4 and 6 of the table in subsection (1), 2 or more communications that together constitute a single communications session are taken to be a single communication.
The following in relation to the equipment or line used to send or receive the communication:
(a) the location of the equipment or line at the start of the communication;
This law does not change the status quo. That's the first point to be made. Telecommunication companies have always retained this information. It has always been accessible to ASIO, to state and federal law enforcement authorities without warrant. At heart all this legislation does is to mandate the continuation of the status quo.
We're not saying 'give us the money because security is going to be an issue'. There is data required under this new law … that we do not collect today, that we have no reason to collect today, and we will be collecting it.
We're not saying, 'give us the money because security is going to be an issue'. There is data required under this new law … that we don't collect today, that we have no reason to collect today, and we will be collecting it.
The only thing the data retention law is requiring is that types of metadata which are currently retained will be retained in the future for at least two years.
The telecom industry “has grown a little weary of hearing this proposal described as a requirement to do no more than service providers do to today …
“It’s in most cases far from that. It is a data creation regime as well as a data retention regime.”
“There are elements of the dataset, for example, that require data to be collected and manipulated in ways it’s not today. Historical aggregate records of upload and download volumes, for example – I don’t know of any provider who manages to put that material today. There’s no business requirement for it, and the feedback from some of our members is that will be quite difficult to do.”
To avoid doubt, if information that subsection (1) requires a service provider to keep in relation to a communication is not created by the operation of a relevant service, subsection (1) requires the service provider to use other means to create the information, or a document containing the information.
A person (a service provider) who operates a service to which this Part applies (a relevant service) must keep, or cause to be kept—
for the period specified in section 187C:
(a) information of a kind—
… or
(b) documents containing information of that kind;
relating to any communication carried by means of the service.
(2) The Minister may, by legislative instrument, make a declaration modifying (including by adding, omitting or substituting) the table in subsection (1), or that table as previously modified …
This section does not require a service provider to keep or to cause to be kept information that is the contents or substance of a communication.
This paragraph puts beyond doubt that service providers are not required to keep information about telecommunications content, or (b) information that (i) states an address to which that communication was sent on the internet from a telecommunications device using an internet access service provided by the service provider and (ii) was obtained by the service provider only as a result of providing the service.
A person (a service provider ) who operates a service to which this 10 Part applies (arelevant service ) must keep, or cause to be kept, in 11 accordance with section 187BA and for the period specified in 12 section 187C: 13
(a) information of a kind specified in or under section 187AA; or 14
(b) documents containing information of that kind; 15
relating to any communication carried by means of the service.
This section does not require a service provider to keep, or cause to be kept:
(a) information that is the contents or substance of a communication;
To provide for emergency circumstances, the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended so that the Attorney-General can declare items for inclusion in the data set under the following conditions:
The committee divided. [12:04]
(The Chairman—Senator Marshall)
(1) Schedule 1, item 1, page 4 (line 16 and 17), omit "40 sitting days", substitute "4 sitting days".
(2) Schedule 1, item 1, page 8 (lines 8 and 9), omit "40 sittings days", substitute "4 sitting days".
(3) Schedule 2, item 3, page 59 (lines 11 and 12), omit "40 sitting days", substitute "4 sitting days".
(4) Schedule 2, item 4, page 61 (lines 29 and 30), omit "40 sitting days", substitute "4 sitting days".
(2) Schedule 1, item 1, page 4 (line 3), omit " 1992) ; or", substitute "1992) ; and".
(3) Schedule 1, item 1, page 4 (lines 4 and 5), omit subparagraph 187A(3)(b)(iii).
(5) Schedule 1, item 1, page 10 (lines 16 to 34), omit subsections 187C(1) and (2), substitute:
(1) The period for which a service provider must keep, or cause to be kept, information or a document under section 187A is the period:
(a) starting when the information or document came into existence; and
(b) ending 3 months after it came into existence.
… the Committee accepts the unequivocal evidence of the national security and law enforcement agencies, which is supported by the international evidence, that a retention period of up to two years is necessary and proportionate for a range of investigations into particularly serious types of criminal and security-relevant activity.
… there are a number of reasons that prevent us from actually quantifying the accurately quantifying the age of requests for historical telecommunications data within the current timeframe.
AFP systems are not configured to capture this information, and extraction of this information from historical records would require significant resources to manually review.
… lie after desperate lie is being thrown at the public in an attempt to frighten the electorate into rejecting the Baird government’s … sensible reforms …
"It's … creating unnecessary fear and trying to scare people into voting for Labor not on merit but on misinformation … In many ways I am ashamed of the Party."
I am pressing on with electricity privatisation because, as I have pointed out on numerous occasions, I think it is the best course for New South Wales … job creation in New South Wales and every community throughout every nook and cranny …
“Transport, health, public security: all these matters are ones which in my view have a greater priority than who delivers electricity through your meter … the problem we have got here is that we’ve got some Luddites here in NSW that can’t comprehend that.”
To probe and check the administration of the laws, to keep itself and the public informed, and to insist on ministerial accountability for the government’s administration.
We are just days away from the Royal Commission kicking off and there is a LOT going on, we need everyone to make this a priority please.
Our existing tax system is flawed and unsustainable. … A single-rate flat tax with a generous tax-free threshold would be a major improvement on the current Australian tax system.
… we should be looking at major tax reform—not just tax cuts, but reforms that look at the whole structure of the tax system. One of the ways you can do that is broaden the base and cut the rate.
The first of our founding fathers is no more. He inspired us, gave us courage, and brought us here. To many Singaporeans, and indeed others too, Lee Kuan Yew was Singapore.
With more than 23 years of uninterrupted annual economic growth, a AAA sovereign risk profile and diverse, globally competitive industries, Australia remains well placed to build on an impressive record of prosperity.
… the Australian Government's net debt would be 16.6 per cent of GDP in 2015—
… reinforces Australia's healthy financial position and sound economic credentials …
Australia has enjoyed a sustained period of labour productivity growth … particularly … in 2012-13 and … 2013-14.
A champion for threatened species within government will help to ensure our recovery efforts and funding programs are more strategic and, importantly, throw a lifeline for Australia’s threatened birds …
… now has the review from the grants commission on his desk, though he won't release it … until the NSW election's over.
… allowing people to languish on welfare and dismissing them as being unable to work is not treating them with dignity
That the Senate take note of the answer given by the Minister for Employment (Senator Abetz) to a question without notice asked by Senator Conroy today relating to the manufacture of the next fleet of Australian submarines.
In what has been regarded as one of the most incredible naval shipbuilding feats of the modern era, the first Swedish designed Collins class submarine, HMAS Collins was commissioned from a former greenfield site at Port Adelaide in July 1996, just nine years after the project began. The Collins class boats are extremely stealthy and have been known to sneak right under US aircraft carriers to photograph their keels.
That the Senate take note of the answer given by the Assistant Minister for Education and Training (Senator Birmingham) to a question without notice asked by Senator Milne today relating to protection of the swift parrot.
That leave of absence be granted to Senator Bilyk for the period from Wednesday, 25 March to Thursday, 26 March 2015, on account of absence due to personal reasons.
Australian Centre for Social Cohesion Bill 2015
In Australia, we currently lack a comprehensive national plan to address extremism in our communities. If we are to address these issues at their root, if we are to work to prevent attitudes that accept terrorism and violence as acceptable, then we need to invest in programs that build social cohesion and work to prevent young Australians from becoming radicalised.
As United Nations Secretary-General Ban Ki-Moon has said, "the best response to a corrosive, malevolent ideology is a strong assertion of collective resistance". It is this collective, comprehensive and unified response that the Australian Centre for Social Cohesion Bill 2014 pursues. The Bill establishes a centralised body to develop and implement key preventative programs that help stop young Australians from becoming radicalised. The Centre and its Director will focus on building social cohesion, working with communities to prevent violent extremism. Through bringing together government bodies, law enforcement agencies, academics, researchers and former extremists to consult and work together to build resilient and cohesive communities, the Centre will be well equipped to develop high quality, effective programs for social cohesion.
Currently in Australia, we are under-investing in prevention programs for young Australians at risk of involvement with extremist groups and ideology. To put it in perspective, of the $630 million Counter-Terrorism package currently being implemented by the Australian Government, just $13.4m is allocated in Australia to for prevention programs targeting young Australians involved with extremist groups. That's a mere, 0.5% of the total budget. Of this total funding, just $1 million is currently being utilised, leaving an enormous funding and capacity gap that fails our community.
The lack of a central body dedicated to building social cohesion in our communities or preventing extremism compounds the impacts of this under-investment. Though we currently have in place individual programs such as Countering Violent Extremism, a four-year grant program that works to deter young people from extremism, this has been subject to cuts in funding at a time when we should be investing even more in such schemes.
Furthermore, as Australian violent extremism expert Dr Anne Aly has noted, "Other countries including the UK, Sweden and the US have non-government and not-for-profits working specifically to combat violent extremism, but in Australia much of the work is taken on by government or the research community. There are of course NGOs [Non-Government Organisations] who have developed projects that aim to address the root causes of violent extremism but there was no entity that could take on a coordinating role bringing together government, research and community. This is where we see ourselves having the most impact."
The establishment of the Australian Centre for Social Cohesion would act to break down this siloed approach, bringing together groups from various sectors to develop effective and comprehensive policies to address radicalisation. Research and experience has proven that violent extremism is best dealt with by civil society groups, in coordination and consultation with government and law enforcement agencies. In Australia, this is illustrated in groups such as People against Violent Extremism (PAVE), which grew out of recognition that civil society is a vital player in conflict resolution and developing community resilience against extremism. We also know that countering violent extremism through early intervention and individual and community engagement represents a smarter approach that recognises social as well as political and ideological factors that can make people vulnerable to extremism. This Bill, and the functions and powers of the Australian Centre for Social Cohesion that it outlines, puts into practice these findings.
Community engagement and consultation is necessary, but they do not hold all of the answers alone. Diversionary and educational programs, along with strong online campaigns, are all part of a necessary strategy to help stop young Australians becoming radicalised. It is not about targeting one particular community, but rather a collective approach across multiple communities, government and academia, to implement programs and strategies that that are more targeted at identified points in radicalisation where intervention is likely to succeed. We cannot continue to rely on decisions from the bureaucratic level alone. We need recognise that our failings, both at a government and community level, in preventing radicalisation, is largely due to a policy response that was based on assumptions rather than on a framework that has had proven success. Research from Curtin University has found that deradicalisation programs delivered by government "lack viability and credibility within the target group and are most likely to be viewed manipulative and agenda serving." By enabling relevant NGOs, community leaders, government departments and academic experts to come together we will be able to develop a best practice model for combating violent extremism.
There is precedent around the world for success using this model. The Australian Centre for Social Cohesion framework, focusing on community, government, research and dialogue, is largely based on Hedayah, the premier international institution for training and research to counter violent extremism. The Bill takes this successful international model, and replicates it at a domestic level, focused on the Australian circumstance, and tailoring their research and training to our domestic needs. Hedayah works closely with communities and stakeholders (e.g. youth, women, educators and community leaders) who have traditionally been on the outer when it comes to developing policies to combat violent extremism.
If we are serious about dealing with extremism and terrorism, we must not isolate our focus to reacting to acts of terror and extremism, but also be serious about prevention. Identifying those at risk, finding pathways to deradicalisation, and bringing together the community to find collective solutions, must be a focus of our proactive response to extremism as a nation. The establishment of the Australian Centre for Social Cohesion will provide the foundation that Australia needs to effectively implement such a response.
That the following matters be referred to the Rural and Regional Affairs and Transport References Committee for inquiry and report by 11 November 2015:
(a) the extent and nature of any market failure in the Australian grape and wine industry supply chain;
(b) the extent to which federal and state legislative and regulatory regimes inhibit and support the production, processing, supply chain logistics and marketing of Australian wine;
(c) the profitability of wine grape growers, and the steps industry participants have taken to enhance profitability;
(d) the impact and application of the wine equalisation tax rebate on grape and wine industry supply chains;
(e) the extent to which grape and wine industry representation at regional, state and national level effectively represents growers and winemakers with respect to equity in the collection and distribution of levies;
(f) the work being undertaken by the Australian Grape and Wine Authority pertaining to levy collection information;
(g) the power and influence of retailers of Australian wine in domestic and export markets;
(h) the adequacy and effectiveness of market intelligence and pricing signals in assisting industry and business planning;
(i) the extent to which the Australian grape and wine industry benefits regional communities both directly and indirectly through employment, tourism and other means; and
(j) any related matters.
That the following matter be referred to the Foreign Affairs, Defence and Trade References Committee for inquiry and report by 19 February 2016:
The mental health of Australian Defence Force (ADF) personnel who have returned from combat, peacekeeping or other deployment, with particular reference to:
(a) the extent and significance of mental ill-health and post-traumatic stress disorder (PTSD) among returned service personnel;
(b) identification and disclosure policies of the ADF in relation to mental ill-health and PTSD;
(c) recordkeeping for mental ill-health and PTSD, including hospitalisations and deaths;
(d) mental health evaluation and counselling services available to returned service personnel;
(e) the adequacy of mental health support services, including housing support services, provided by the Department of Veterans’ Affairs (DVA);
(f) the support available for partners, carers and families of returned service personnel who experience mental ill-health and PTSD;
(g) the growing number of returned service personnel experiencing homelessness due to mental ill-health, PTSD and other issues related to their service;
(h) the effectiveness of the Memorandum of Understanding between the ADF and DVA for the Cooperative Delivery of Care;
(i) the effectiveness of training and education offerings to returned service personnel upon their discharge from the ADF; and
(j) any other related matters.
Construction Industry Amendment (Protecting Witnesses) Bill 2015
That the following bill be introduced: A Bill for an Act to A Bill for an Act to amend the Fair Work (Building Industry) Act 2012, and for related purposes. Construction Industry Amendment (Protecting Witnesses) Bill 2015.
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
Today, I introduce the Construction Industry Amendment (Protecting Witnesses) Bill 2015.
The Bill maintains the existing examination powers used by the building industry regulator, Fair Work Building and Construction, to combat unlawful conduct.
The construction industry is a critical sector of the Australian economy. It is the nation's third largest employer with more than one million workers, with many employed in small businesses. It has, regrettably, been affected by unlawful conduct, thuggery and intimidation for too long.
The Government, and any objective observer, realise that Australia desperately needs a construction industry that is not plagued by lawlessness, intimidation and thuggery, and in which all participants respect the rule of law. It is what one would expect in the twenty-first century.
For this reason, one of this Government's first tasks was to introduce a Bill to re-establish the Australian Building and Construction Commission. That Bill was passed by the House of Representatives in December 2013 and is currently before the Senate.
The case to re-establish an effective regulator to enforce appropriate laws, to provide sufficient penalties to deter unlawful conduct, and stop the thuggery and lawlessness in this important industry, is a powerful one.
Re-establishing the ABCC and bringing respect for the rule of law back to the building industry remains a priority for this Government. I also reiterate the Government's firm commitment to the advance release of the Building Code 2014 which will be administered by the ABCC.
However, the Government appreciates that the Senate requires additional time to consider the ABCC Bills.
Whilst this would ordinarily be a matter of scheduling, we need to stop a ticking time bomb from exploding. The compulsory powers in the current legislation to address the culture of silence and intimidation are subject to a sunset clause imposed by the former Labor government. These important powers will no longer be available to the regulator from 1 June 2015.
Accordingly, until the Building and Construction Industry (Improving Productivity) Bill 2013 and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 are dealt with by the Senate in the coming sitting period, this Bill, the Construction Industry Amendment (Protecting Witnesses) Bill 2015, will extend the period during which the Director of the Fair Work Building Industry Inspectorate can exercise the agency's compulsory powers.
The Bill will extend the powers for a further two years. All other aspects of the current legislation are unchanged, including the automatic immunity given to a witness over their evidence.
The ability to compel a person to provide information is vital to protecting workers and witnesses who dare to stand up to unlawfulness and intimidation and assist the regulator to clean up the industry. The powers also ensure Fair Work Building and Construction is able to carry out its investigations effectively and break down the 'culture of silence' and retribution that exists in the sector.
This Bill simply extends the existing powers. These kinds of powers are not novel or new. A range of other Commonwealth regulatory bodies have compulsory powers, such as the Australian Competition and Consumer Commission, the Australian Prudential Regulation Authority, the Australian Securities and Investment Commission, the Australian Taxation Office, Centrelink and Medicare.
In 2009, the Hon. Murray Wilcox, AO, QC conducted a review of the Australian Building and Construction Commission and its powers at the request of the former Labor government. He recommended that the compulsory powers be retained because he was satisfied there was still such a level of industrial unlawfulness in the industry that warranted the powers. He also said that, in reality, without such a power some types of contraventions would be almost impossible to prove.
We have recently seen the effectiveness of compulsory powers during the investigation by the Australian Competition and Consumer Commission of the alleged CFMEU secondary boycott against Boral. ACCC Chairman Sims and his agency were confronted by the culture of silence and fear of reprisal that is all too often a feature of the building and construction industry.
Mr Sims said that "the ACCC has only been able to progress the investigation by compelling people to give evidence". Without the ACCC's use of its compulsory powers, the serious wrongdoing alleged could not have been put before the Court.
It remains the case today that law-abiding industry participants have nothing to fear from the continuation of these powers. In fact, as the name of the Bill suggests, the powers will protect those people who do the right thing.
This Bill provides for the continuation of arrangements already in place, which have been previously supported by both sides of Parliament and ensure individuals who are brave enough to take a stand against unlawfulness are not stood over and intimidated into silence.
The Government is committed to re-establishing the ABCC and returning the rule of law to Australia's construction industry, and this Bill will ensure that there is no break in the existing regulator's ability to investigate unlawfulness until the Senate has had an opportunity to consider the legislation to re-establish the ABCC.
That the government business order of the day relating to the Automotive Transformation Scheme Amendment Bill 2014 be discharged from the Notice Paper .
That the hours of meeting for Tuesday, 12 May 2015, be from 12.30 pm to 6.30 pm and 8.30 pm to adjournment, and for Thursday, 14 May 2015 be from 9.30 to 6 pm and 8 pm to adjournment, and that:
(a) the routine of business from 8.30 pm on Tuesday, 12 May 2015 shall be:
(i) Budget statement and documents 2015-16, and
(ii) adjournment; and
(b) the routine of business from 8 pm on Thursday, 14 May 2015 shall be:
(i) Budget statement and documents—party leaders and independent senators to make responses to the statement and documents for not more than 30 minutes each, and
(ii) adjournment.
That the Senate—
(a) notes that:
(i) the Minister for the Environment (Mr Hunt) has referred the Shenhua Watermark coal mine planned for the Liverpool Plains to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC) for assessment under the water trigger provisions of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act),
(ii) the Namoi catchment, that includes the Liverpool Plains, is the largest groundwater system in the Murray Darling catchment and the Shenhua project triggered the requirement to consider water impacts of the mine under the EPBC Act,
(iii) the Federal Government has passed legislation in the House of Representatives, including to hand over application of the water trigger, including approval decisions, under the EPBC Act to state and territory governments and local councils, and
(iv) as well as the proposed Shenhua Watermark project two other major mining projects are proposed for the Liverpool Plains—BHP Billiton is planning a coal mine of 500 000 000 tonnes less than 10 km from the Shenhua site, and Santos has a coal seam gas licence to explore for gas across the whole Liverpool Plains floodplain;
(b) calls on the Minister for the Environment to publicly clarify:
(i) if he is requiring That the IESC review assess the cumulative impacts of the project in association with other developments, whether past, present or reasonably foreseeable,
(ii) whether the IESC will carry out the bioregional assessment of the impact of the proposed mine on the Namoi catchment, or whether they will be simply reviewing other work rather than carrying out their own independent work, and
(iii) if the IESC will be required to engage with the Local Land Services to assess the cumulative impacts, or will a desktop assessment of the hydrogeology and geology be all that is required; and
(b) calls on the Minister for the Environment to retain the water trigger at the federal level and abandon its plans to hand it off to state and territory governments.
That the Senate—
(a) congratulates the President of the United States of America, Barack Obama for the Executive Order requiring the reduction of greenhouse gas pollution by 40 per cent below 2008 levels in 2025 from activities directly undertaken by the Federal Government;
(b) notes that measures such as energy productivity retrofits, directly contracting renewable energy projects, lifting vehicle fuel efficiency standards and increasing ethanol use in defence vehicles not only reduces operating costs and saves taxpayers money, but it boosts domestic economic activity while driving down pollution; and
(c) urges the Federal Government to assess the potential impact that it can directly make through its own activities and procurement policies as it searches for policies that will deliver Australia's post 2020 targets.
That the resolution of appointment of the Select Committee on the National Broadband Network be amended, as follows:
After paragraph (d), insert:
(da) the development of a long term, multi partisan vision for the National Broadband Network.
(1) On Wednesday, 25 March 2015:
(a) the hours of meeting shall be from 9.30 am to 7 pm and 7.30 pm to 11.10 pm;
(b) the routine of business from not later than 7.30 pm until 10.30 pm shall be government business only; and
(c) the question for the adjournment shall be proposed at 10.30 pm.
(2) On Thursday, 26 March 2015:
(a) the hours of meeting shall be from 9.30 am to adjournment;
(b) consideration of general business orders of the day relating to private senators’ bills under temporary order shall not be proceeded with, and that government business shall have precedence for 2 hours and 20 minutes;
(c) from not later than 12.45 pm, the following orders of the day shall be considered:
(i) Public Governance and Resources Legislation Amendment Bill (No.1) 2015, and
(ii) Parliamentary Service Amendment Bill 2014;
(d) government business shall be called on after consideration of the bills listed in paragraph (c) and considered till not later than 2 pm;
(e) consideration of the business before the Senate shall be interrupted at approximately 4 pm, but not so as to interrupt a senator speaking, to enable valedictory statements to be made relating to Senator Mason;
(f) divisions may take place after 4.30 pm;
(g) the routine of business from not later than 8 pm shall be consideration of government business only, and that the following government business orders of the day shall have precedence over all other government business:
(i) Migration Amendment (Protection and Other Measures) Bill 2014,
(ii) Telecommunications Legislation Amendment (Deregulation) Bill 2014 and the Telecommunications (Industry Levy) Amendment Bill 2014, and
(iii) Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014; and
(h) the Senate shall adjourn without debate on the motion of a minister.
That so much of the standing orders be suspended as would prevent me moving a motion to provide for the consideration of a matter, namely a motion to give precedence to government business notice of motion No. 5.
The Senate divided. [16:34]
(The President—Senator Parry)
That government business notice of motion No. 5 may be moved immediately and determined without amendment or debate.
The Senate divided. [16:39]
(The President—Senator Parry)
That the Senate meet on Monday, 11 May 2015, and that:
(a) the hours of meeting shall be 10 am to 6.30 pm and 7.30 pm to adjournment;
(b) the routine of business shall be:
(i) government business,
(ii) at 2 pm, questions, and
(iii) from 3 pm, government business only;
(c) the following government business orders of the day shall have precedence over all other government business:
(i) Construction Industry Amendment (Protecting Witnesses) Bill 2015,
(ii) Limitation of Liability for Maritime Claims Amendment Bill 2015, and
(iii) Tribunals Amalgamation Bill 2014; and
(d) the question for the adjournment of the Senate shall not be proposed until a motion for the adjournment is moved by a minister.
After paragraph (b)(ii), insert the following new paragraph:
(b)(iia) motions to take note of answers.
The Senate divided. [16:51]
(The President—Senator Parry)
Omit all words after "that" and substitute:
(a) The hours of meeting shall be 10 am to 6.30pm and 7.30pm to 10.30pm;
(b) The routine of business shall be:
(i) Documents
(ii) Clerk's documents
(iii) Committees - authorisation to meet
(iv) Government business only,
(v) At 2pm, questions,
(vi) Motions to take note of answers
(vii) Petitions
(viii) Postponement and rearrangement of business
(ix) Formal motions – discovery of formal business
(x) Any proposal to debate a matter of public importance or urgency
(xi) Consideration of documents under standing order 61 for up to 30 minutes
(xii) Government business
(xiii) At 9.50pm, adjournment proposed.
The Senate divided. [16:56]
(The President—Senator Parry)
That the Senate notes:
(a) the importance of the sugar industry in Australia;
(b) the unique marketing challenges that face this industry; and
(c) the importance of the current marketing arrangements within the industry that have contributed to the stable and equitable status of this industry for over 100 years.
That the Senate—
(a) recognises that the uranium mining industry has the potential to generate significant economic growth, jobs and income in regional Queensland; and
(b) notes:
(i) its disagreement with the Queensland Labor Government's decision to renege on the policy of allowing developers to submit applications for the development of new uranium mining projects in Queensland, and
(ii) that this decision will have significant adverse effects on regional areas due to:
(A) the potential loss of construction and operational jobs, investment and income associated with new projects, and
(B) the potential loss of public income generated through taxes and mining royalties that could be put back into supporting infrastructure, health services and education in the surrounding communities.
That the Senate—
(a) notes recent reports and evidence of aggression and abuse towards women by Construction, Forestry, Mining and Energy Union (CFMEU) officials, including that:
(i) CFMEU organiser, Mr Luke Collier, abused a female Fair Work Building and Construction (FWBC) inspector using expletive and misogynist swear words,
(ii) CFMEU Assistant Secretary, Mr Shaun Reardon, made threatening late night phone calls to a female staff member of the building industry watchdog,
(iii) a CFMEU official spat at a female FWBC inspector when she was called out to a worksite to inspect a union blockade,
(iv) a CFMEU official made a late night phone call to a female staff member of the building industry watchdog, threatening her with gang rape, and
(v) on multiple occasions female FWBC officers have had to be moved off inspection duties because of the threats and aggression expressed towards them;
(b) condemns such behaviour directed at female FWBC inspectors;
(c) condemns CFMEU Secretary, Mr Dave Noonan, for attempting to defend Mr Collier's verbal intimidation of a female FWBC inspector and similar cases of intimidation, by saying that swearing on building sites is nothing new; and
(d) expresses its gratitude to FWBC inspectors, including the 31 female FWBC inspectors, who work to maintain the rule of law on Australia's building and construction sites.
The Senate divided. [17:19]
(The President—Senator Parry)
That the Senate—
(a) notes:
(i) the importance of comprehensive whistle-blower protection legislation at all levels of government and across both the public and private sectors, and
(ii) the recent announcement by the New South Wales Labor Party that it will extend state whistle blower protection laws to the private sector to encourage disclosure of corporate corruption and illegal activity; and
(b) calls on the Federal Parliament to pledge support, and move to implement, extension of federal whistle blower protection legislation to private sector employees.
That the Senate—
(a) notes:
(i) the recent report of the Australian Coral Reef Society which stated that policies for a safe climate are inconsistent with the opening of new fossil fuel industries like the mega coal mines of the Galilee Basin, and
(ii) the comments of Professor Terry Hughes on ABC Radio that it is an impossible task to open up the mega coal mines of the Galilee Basin while sustaining the Great Barrier Reef for future generations; and
(b) agrees that Galilee Basin coal must stay in the ground in order to protect the Great Barrier Reef.
The Senate divided. [17:25]
(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 Abbott government's failure to rule out further cuts to health and education.
… I am giving an absolute commitment here today that the overall levels of health funding will be maintained.
The current ICU [Intensive Care Unit] capacity is saturated and land locked. There is 1 bathroom for 15 critical patients and nil for CICU [Cardiothoracic Intensive Care Unit].
With more than 23 years of uninterrupted annual economic growth, a AAA sovereign risk profile and diverse, globally competitive industries, Australia remains well placed to build on an impressive record of prosperity.
These service cuts will have a significant impact on the health of Victorian women …
That the Senate take note of the report.
That the Senate take note of the report.
That the Senate take note of the report.
I rise to speak to the tabling of the Parliamentary Joint Committee on Human Rights' Twenty-first Report of the 44th Parliament.
This report provides the committee's view on the compatibility with human rights as defined in the Human Rights (Parliamentary Scrutiny) Act 2011 of bills introduced during the period 16 to 19 March 2015, and legislative instruments received during the period 27 February to 5 March 2015. The report also includes consideration of legislation previously deferred by the committee, as well as one response to issues raised by the committee in a previous report.
Of the seven bills considered in this report, six are assessed as not raising human rights concerns and one raises a matter requiring further correspondence. The committee has deferred its consideration of the remaining two bills introduced during this period and a number of instruments.
This short report outlines the committee's examination of the compatibility of these bills and instruments with our human rights obligations. The committee seeks to engage in dialogue with relevant ministers, both to help the committee better understand the intent of the legislation before it and to help relevant ministers and officials to identify and explore questions of human rights compatibility.
The committee has approached its consideration of the human rights implications of the legislation before it using the same analytical framework that it has consistently applied to the assessment of limitations of rights. When examining legislation, the committee assesses whether the legislation engages human rights and, if so, whether it limits or promotes rights. The majority of legislation, as can be seen in this report, either does not engage human rights or, if it engages with rights, either promotes rights or does not limit them. Where legislation does limit human rights, the committee's analytical framework allows it to focus on three key questions:
1. whether the measures are aimed at achieving a legitimate objective;
2. whether there is a rational connection between the measures and that objective; and
3. whether the measures are proportionate to that objective.
These questions are the first stage of the committee's analysis. It is on this basis that in the present report the committee has sought the advice of ministers in relation to a small number of bills and instruments.
Also in this report, the committee has examined the Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Declaration 2015—Mosul District, Ninewa Province, Iraq. This regulation makes it an offence under the Criminal Code Act 1995 to enter, or remain in, the Mosul district in Iraq. The declared area offence provision was included in the Criminal Code as part of the government's 'Foreign Fighters' Bill in late 2014. The committee has previously examined this offence provision and, after conducting substantial dialogue with the Minister for Foreign Affairs, found that it is incompatible with a number of human rights. As this regulation implements that offence provision with respect to the Mosul district in Iraq, the committee has concluded that the regulation is also incompatible with a number of human rights. Notwithstanding this conclusion, the committee agrees that there is a public interest argument in declaring areas under the Criminal Code as 'no go zones' to pursue the legitimate objective of national security particularly the threat of returning foreign fighters.
I encourage my fellow Senators and others to examine the committee's report to better inform their consideration of proposed legislation.
With these comments I commend the committee's Twenty-first Report of the 44th Parliament to the Senate.
That the Senate take note of the report.
The committee recommends that the Government provide funding to the National Landcare Programme to the same level as provided under Caring for our Country.
The Coalition will give Landcare significantly greater access to the Caring for Country pool of funds, as well as the current Landcare funding.
We have listened to local communities and we will put Landcare at the heart of our land conservation programs.
Aboriginal and Torres Strait Islander Amendment (A Stronger Land Account) Bill 2014
That Senator Xenophon be appointed as a participating member of the Select Committee on Wind Turbines and the Select Committee into the Abbott Government's Budget Cuts.
Public Governance and Resources Legislation Amendment Bill (No. 1) 2015
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
PUBLIC GOVERNANCE AND RESOURCES LEGISLATION AMENDMENT BILL (No. 1) 2015
The Public Governance and Resources Legislation Amendment Bill (No. 1) 2015 (the Bill) would, if enacted, amend 33 Acts, in relation to matters of a governance or resource management nature.
The Bill follows on from the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 (PGPA C&T Act), which implemented a range of amendments to the enabling legislation of Commonwealth entities and companies to harmonise their operation with the Public Governance, Performance and Accountability Act 2013 (PGPA Act) from 1 July 2014.
The Bill is part of a broader Public Management Reform Agenda and represents the next stage in the Government's approach towards streamlining and simplifying resource management and governance arrangements across the Commonwealth. While the PGPA C&T Act made changes to 242 Acts to reflect the introduction of the PGPA Act, not all enabling legislation could be amended due to the complexity of some arrangements. This Bill involves:
While many of the amendments in the Bill are technical in nature, they provide greater certainty in relation to the operation of the PGPA Act.
For example; arrangements operating under the Financial Management and Accountability Act 1997 (the FMA Act) for the administration of GST obligations were continued pending further consultation with affected entities. These arrangements were only preserved until 30 June 2015.
The outcome of this process, which included the development and consideration of a discussion paper, was that these arrangements should continue, and the Bill provides the necessary support for the continuation of existing GST arrangements for non-corporate Commonwealth entities from 1 July 2015.
Another example relates to repayments by the Commonwealth. The transitional arrangements in the PGPA C&T Act will be amended to clarify that repayments by the Commonwealth are covered by section 77 of the PGPA Act, regardless of when the money was received by the Commonwealth. Section 77 of the PGPA Act ensures that the consolidated revenue fund can be appropriated when a repayment is required and no other appropriation for the repayment exists.
The Bill also proposes amendments directed at improving efficiency and reducing red tape by harmonising and improving alignment with the PGPA Act across the statute book. For example, the Bill:
The Bill also contains amendments to entity enabling legislation, as identified by Ministers, to improve and clarify their broader governance and resource management arrangements.
The Bill would amend the Air Services Act 1995 to address a longstanding issue involving the exposure of Airservices Australia to undue foreign currency risk, due to limitations on hedging activities. The Bill amends the Air Services Act 1995 to address this issue, by enabling Airservices Australia to undertake activities to effectively mitigate the risk of adverse financial consequences to the entity.
The Bill, if enacted, will support the PGPA Act and simplify regulatory requirements to contribute to long-term efficiencies, such as achieving improved governance, transparency and accountability arrangements for Commonwealth entities within the Australian Government.
The Bill is another step towards streamlining and simplifying resource management and governance arrangements across the Commonwealth.
I commend the Bill.
Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
SEAFARERS REHABILITATION AND COMPENSATION AND OTHER LEGISLATION AMENDMENT BILL 2015
This bill will amend the Seafarers Rehabilitation and Compensation Act 1992 and theOccupational Health and Safety (Maritime Industry) Act 1993 to restore certainty to maritime industry employers, employees, regulators and insurers by clarifying the coverage of those acts.
The amendments are made in response to the Full Federal Court decision in Samson Maritime Pty Ltd v Aucote and the original Administrative Appeals Tribunal decision of Aucote and Samson Maritime Pty Ltd. The decisions interpreted the coverage of the seafarers act as being beyond what it had widely been understood to be by including within its scope intrastate trade or commerce. The decisions also have potential implications for the OHS (MI) act, since it has near identical coverage provisions to the seafarers act.
To be clear, this bill will simply be clarifying the coverage of the seafarers and OHS (MI) acts to ensure that it represents what has been widely understood to be the case since those acts commenced.
The Commonwealth Government has provided a workers' compensation scheme to protect Australian seafarers and their families against the financial impacts of death, injury or illness resulting from the often dangerous conditions of working on the sea since the Seamen's Compensation A ct 1911 . That act applied broadly to Australian seafarers who were engaged in interstate or international trade or commerce, or engaged in trade or commerce within or between the territories. This reflected the understanding of the limits of the Commonwealth Government's constitutional powers at the time.
The seafarers act commenced in 1993. It provides workers' compensation and rehabilitation arrangements for seafarers in a defined part of the Australian maritime industry. The seafarers act also establishes the seafarers Safety, Rehabilitation and Compensation Authority (the Seacare Authority), which oversees the Seacare scheme. The OHS (MI) act commenced in 1994. It provides work health and safety regulation for a defined part of the Australian maritime industry. The two acts together form the legislative basis of the current Seacare Scheme.
Since the seafarers act and OHS (MI) act commenced, successive governments and maritime industry employers, unions and regulators have operated on the basis that the Seacare scheme generally covers the employment of employees on prescribed ships engaged in interstate or international trade or commerce. Seafarers employed on ships engaged in trade or commerce within a single state were considered to be covered by the workers' compensation and work health and safety laws of the state in which they work.
The Full Court's decision has in effect produced uncertainty by moving a large number of maritime industry employers and employees out of the coverage by state and territory workers' compensation and work health and safety schemes into the coverage of the Commonwealth Government's Seacare scheme.
This bill amends the coverage provisions of both the seafarers act and the OHS (MI) act to ensure that coverage aligns with how the Seacare scheme had been understood to apply. The amendments will clearly provide that the seafarers act and the OHS (MI) act do not apply to ships engaged in purely intra-state trade or commerce. This will provide ongoing clarity and certainty for maritime regulators, employers and employees on the coverage of the Seacare scheme.
The amendments will apply retrospectively to any injury, loss or damage suffered by any employee on or after the commencement of the seafarers act in 1993 in order to return the operation of the Seacare Scheme to what it has always been understood to be.
The approach ensures that past claims are not disturbed and that there is certainty as to what a seafarer's appropriate workers compensation coverage is and has been. The key aim is to restore the 'status quo' regarding workers' compensation and work health and safety coverage of the maritime industry.
The bill also amends the coverage provisions to ensure that the Seacare scheme applies to the employment of employees on a prescribed ship, or unit in the case of the OHS (MI) act, that is 'directly and substantially' engaged in trade or commerce. This amendment is intended to make clear that the activity of the ship must be more than merely incidental or preparatory to interstate or international trade or commerce for a ship to be covered by the Seacare scheme. To be covered, there must be a direct and substantial connection.
This bill also makes amendments to the seafarers act to ensure that when the Seacare Authority grants an exemption from the act in relation to an employee's employment, the relevant employer is also exempt from paying a levy under the Seafarers Rehabilitation and Compensation Levy Collection Act 1992 . This amendment addresses a long-standing anomaly where employers have been required to pay a Seacare levy on behalf of a group of employees who, by virtue of being granted an exemption from coverage by the seafarers act, are not covered by the Seacare scheme.
This bill does not change the workers' compensation entitlements and work health and safety protections of seafarers. The bill restores the balance of Commonwealth and state coverage of workers' compensation and work health and safety for seafarers that existed since the Seamen's Compensation Act 1911 .
With passage of this bill, seafarers will have the workers' compensation rights and work health and safety protections that they were widely understood to have had prior to the handing down of the Full Court's decision.
Australian Border Force Bill 2015
Customs and Other Legislation Amendment (Australian Border Force) Bill 2015
That these bills may proceed without formalities, may be taken together and be now read a first time.
That these bills be now read a second time.
AUSTRALIAN BORDER FORCE BILL 2015
Australia's border is a national asset that defines the space within which our democratic and sovereign nation state can prosper. It supports a strong economy by serving as a global gateway for trade, and enabling business and the operation of free markets. It supports strong national security by interdicting prohibited goods and people who seek to do us harm. The border also contributes to a prosperous and cohesive society with a rich and diverse culture, by promoting the freedoms and responsibilities of Australian citizenship and helping to create safer communities.
In short, our border creates the space where we can be who we are and become who we want to be as a nation.
Maintaining our borders as a secure platform for legitimate trade, travel and migration is a core responsibility of the Australian Government and this is a responsibility we take very seriously. There is little point in having a planned migration program or laws around the movement of goods and people if we cannot protect the integrity of those programs.
In the environment of ongoing growth in trade and travellers to Australia, the Australian Border Force Bill 2015 and the other border protection reforms being implemented by this Government position our nation to confront the challenges posed by increased border interactions.
This Bill establishes the statutory office of the Australian Border Force Commissioner, who will command the Australian Border Force as a new, front-line operational border control and enforcement entity within the Department of Immigration and Border Protection that will enforce customs and immigration laws and protect Australia's borders.
The Australian Border Force Commissioner will be our most senior border law enforcement officer who will lead a professional and agile team of highly trained officers tasked with protecting and managing our borders.
The Commissioner will have the same standing as other heads of key national security related agencies, such as the Commissioner of the Australian Federal Police or the Chief of the Defence Force.
The powers and functions of the Commissioner are conferred under the Customs Act 1901, the Migration Act 1958, the Maritime Powers Act 2013 and other Commonwealth laws.
The Commissioner will also be the Comptroller-General of Customs, with responsibility for the enforcement of customs law and the collection of border related revenue.
The Australian Border Force will not be a separate agency for the purposes of the Public Service Act 1999, the Public Governance, Performance and Accountability Act 2013, or the Privacy Act 1988. The Secretary of my Department will remain the Accountable Authority for PGPA Act purposes and will remain the Agency Head for Public Service Act purposes.
The Secretary will make available the resources, strategy, policy corporate and enabling support the Australian Border Force needs to operate effectively.
This removes unnecessary duplication and enables the deployment of a greater proportion of resources into the front line. It also contributes to a more efficient government footprint that will assist in achieving fiscal repair and ensuring the sustainability of government operations.
The Australian Border Force will bring together the people, capability and systems from across my portfolio that protect the border and facilitate the lawful passage of people and goods.
This Bill also enables the full integration of the Australian Customs and Border Protection Service and the Department of Immigration and Border Protection into a single department of state.
Staff performing operational functions in the Australian Customs and Border Protection Service will move into the Australian Border Force. Departmental staff who will transfer into the Australian Border Force include those working in immigration compliance, enforcement, detention services and other operational functions. All other functions from the Service will be integrated within the broader Department.
By removing the traditional silos of immigration and customs, my Department – and within it the Australian Border Force – will deliver an improved capability that truly focuses border policies, strategy and operations in an integrated and holistic way.
The establishment of an integrated border entity is not a new concept. It has been a theme of global border reform, in particular in the United States through the Homeland Security Department and a series of reforms at the UK Home Office.
In bringing forward our reforms, we have studied these overseas experiences carefully. The model the Government is implementing takes account of what has worked well for other countries, but also takes into account the unique challenges we face here.
The Australian Border Force will encompass not only those people who staff our air and sea borders at airports and ports, but also those involved in detection, investigations, compliance and enforcement in relation to illicit goods and illegal visitors. This includes management of detention facilities and the removal of non-citizens who do not have a right to remain in Australia.
The Australian Border Force will also include staff who serve beyond our borders, working in operational roles with our regional partners to secure Australia's maritime zone, prevent and deter illegal arrivals and the movement of prohibited goods.
While the Australian Border Force will deliver an important law-enforcement and national security capability in its own right, it won't operate alone. The Australian Border Force will work in close collaboration with national security, defence, law enforcement and intelligence partners domestically and overseas to deliver a secure border.
This integrated approach has proved to be a key element of our Government's success under Operation Sovereign Borders in stopping the destructive people smuggling trade.
To underpin community confidence in Australia's immigration, customs and border arrangements, it is imperative that the Australian Border Force is established as professional and disciplined workforce.
The Bill provides that certain immigration and border protection workers in the Australian Border Force or performing services for the Force may be requested to make and subscribe an oath or affirmation. This requirement sets an upfront marker that the Government and the public expect the highest standards of professionalism and integrity for officers that are exercising significant enforcement powers. The Commissioner will also be required to make and subscribe an oath or affirmation on commencement of his or her office.
An employee who has made or subscribed such an oath or affirmation must not engage in conduct that is inconsistent with the oath or affirmation.
This Bill also gives power to the Secretary and ABF Commissioner to give written directions in connection with the administration and control of the Department and Australian Border Force respectively, and the performance of functions or exercise of powers.
Directions may be made in relation to the setting of essential qualifications for the performance of duties, the mandatory reporting of serious misconduct or criminal activity, and the implementation of the professional integrity system for my Department.
These directions are binding and failure to follow them represents a breach of the Australian Public Service Code of Conduct.
These provisions will enable the highest standards of operational effectiveness and professional integrity to be achieved throughout my Department.
To ensure a safe working environment and increase resistance to corruption, the Bill provides that all immigration and border protection workers may be required to undergo an alcohol screening test, an alcohol breath test, an alcohol blood test or a prohibited drug test.
While the focus of the testing will be on operational and high risk areas, any departmental employee may be selected randomly for testing.
In addition, the Bill provides that alcohol screening involving a breath or blood test, and/or a prohibited drug test, may be required if an incident occurs such as a workplace injury or death involving a motor vehicle, vessel, the discharge of a firearm or physical force.
The Australian Federal Police, Australian Crime Commission and Australian Customs and Border Protection Service all currently apply similar drug and alcohol testing arrangements. The Australian Defence Force also operates a prohibited substance testing programme.
To further strengthen integrity arrangements, the Bill establishes resignation and termination provisions in circumstances involving serious misconduct.
Where an employee is suspected of serious misconduct such as corruption, a serious abuse of power, a serious dereliction of duty, or any other seriously reprehensible act or behaviour and they tender their resignation, the Secretary of the Department or the ABF Commissioner would be able to defer the date of effect of resignation by up to 90 days.
This will enable an APS code of conduct investigation to be finalised and where a breach decision is made, consider whether to impose a termination of employment sanction.
Additionally, in cases where the employment of a departmental officer is terminated under the Public Service Act 1999 as a result of serious misconduct, the Secretary or ABF Commissioner will be able to make a serious misconduct declaration that excludes the termination of employment from review for unfair dismissal under the Fair Work Act 2009.
These provisions provide a strong signal that serious misconduct will not be tolerated.
Part 6 of the Bill establishes important information protections, similar to provisions that are in place within the Australian Customs and Border Protection Service and a range of other Commonwealth agencies.
These protections prohibit the unauthorised making of a record or disclosure of protected information. Breach of this requirement is punishable by imprisonment for two years.
This provision provides assurance to industry and our domestic and international law enforcement and intelligence partners that sensitive information provided to the Australian Border Force and my Department more broadly will be appropriately protected. The provision also enables authorised disclosure where this is appropriate.
In summary, the reforms delivered through this Bill support the Government's priority of ensuring Australia's ongoing success as an open economy and as the world's most successful immigration nation.
This Bill will enable the Australian Border Force and the Department to create stronger borders. Stronger borders will contribute to safer communities and a prosperous and cohesive society.
This Bill deserves the support of all parties. We must take this opportunity to enhance Australia's capacity at the border to manage exponential growth in trade and travellers and combat transnational crime syndicates seeking to exploit our systems.
The government is serious about border protection. The measures in this Bill underscore that commitment, and I commend it to the Senate.
CUSTOMS AND OTHER LEGISLATION AMENDMENT (AUSTRALIAN BORDER FORCE) BILL 2015
The Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 will repeal the Customs Administration Act 1985 and amend a number of other Commonwealth Acts, including theCustoms Act 1901 .
Consequential amendments proposed in this Bill will ensure that all Commonwealth legislation reflects the changes to organisational arrangements and statutory roles associated with the integration of the Department of Immigration and Border Protection and establishment of the Australian Border Force within the Department.
The Australian Border Force Bill 2015 establishes the statutory office of the Australian Border Force Commissioner and also designates the Commissioner as the "Comptroller-General of Customs". In that capacity, the holder of the position will have general administration of the Customs Act and the various provisions within other Commonwealth Acts and Regulations that confer powers and responsibilities on Customs and on officers of Customs.
This Act generally substitutes references to the "Chief Executive Officer of Customs" with "Comptroller-General of Customs" or "Secretary of the Department of Immigration and Border Protection"; and the "Department of Immigration and Border Protection" will generally be substituted as the successor agency to the Australian Customs and Border Protection Service.
The terms "officer of Customs" and "Collector" are being retained, and the provisions in a range of Commonwealth laws that are linked to these defined terms generally remain unchanged. The associated powers will be exercised by those officers within my Department who are appropriately authorised and trained, in accordance with established protocols and guidelines. In many, but not all cases, these officers will be within the Australian Border Force.
There are three matters in the Bill that I specifically want to mention. These are the amendments to the Crimes Act 1914 , theLaw Enforcement Integrity Commissioner Act 2006 and theWork, Health and Safety Act 2011 .
First, in relation to the Crimes Act: there are several provisions that currently apply to officers of Customs or the Australian Customs and Border Protection Service that will be crucial to maintain when the Service integrates with the Department of Immigration and Border Protection.
The Australian Customs and Border Protection Service currently falls within the definition of a law enforcement agency within Part 1AB, which deals with "controlled operations", and Part 1AC, which deals with "assumed identities". A controlled operation involves the participation of officers from law enforcement agencies and is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence, or State offence with Commonwealth aspects. An assumed identity is a false identity that is authorised to be adopted by an officer of a law enforcement agency to facilitate the collection of intelligence and investigation of offences of Commonwealth laws.
Part 1AB currently exempts officers of Customs who are involved in a controlled operation from criminal liability for a Commonwealth, State or Territory offence.
In addition, Part 1AC currently exempts officers of Customs from criminal liability for a Commonwealth, State or Territory offence in respect to things done in the course of acquiring or using an assumed identity.
These are important provisions. In its 2013 report into Organised Crime in Australia, the Australian Crime Commission details the significant impact serious and organised crime has on the every day lives of Australians. The Commission conservatively estimates organised crime costs Australia $15 billion annually and notes the ability for such crime to undermine our border integrity, erode the confidence in institutions and law enforcement agencies and damage our prosperity and regional stability. This form of crime reaches across borders and can include trafficking in drugs or in people, corruption, and money laundering.
With the increasing threat of serious organised and transnational crime, it is vitally important that Australia's border arrangements continue to be able to operate with relevant powers and protections to conduct operations that counter these threats. Accordingly, the Bill substitutes the Department of Immigration and Border Protection for the Australian Customs and Border Protection Service as the primary agency with overarching responsibility for protecting our borders. It therefore ensures these provisions will continue to apply to officers in my Department when the new organisational arrangements are in place.
The second matter I want to highlight relates to amendments to the Law Enforcement Integrity Commissioner Act, or the LEIC Act.
The broad objectives of the LEIC Act are to strengthen the integrity of prescribed Commonwealth law enforcement agencies and to enable the prosecution of corrupt officials and their criminal counterparts. To this end, the Law Enforcement Integrity Commissioner and staff at the Australian Commission for Law Enforcement Integrity (ACLEI) are empowered to detect and investigate corrupt conduct by using a combination of coercive information gathering and law enforcement powers.
The Commission for Law Enforcement Integrity focusses on serious and systemic corruption risks, such as criminal compromise, infiltration and other corruption.
The Australian Customs and Border Protection Service is currently prescribed as a law enforcement agency under the LEIC Act. This Bill proposes that the Integrity Commissioner's jurisdiction would be broadened to apply to the Department of Immigration and Border Protection on a whole of agency basis, from 1 July 2015.
My Department plays a critical role in protecting Australia's sovereignty and managing the movement, each year, of millions of people and goods across the border. In fulfilling this role, immigration and border protection workers have access to secure environments, protected systems and sensitive information. Officers are also entrusted with powers to authorise or prevent the movement of people and goods across the border and also the power to grant permissions associated with the stay of non-citizens in Australia. The Australian community expect these workers to demonstrate the highest level of integrity and professionalism in the exercise of such powers and in the protection of sensitive information.
I have every confidence that the vast majority of officers meet that expectation.
As a department charged with responsibilities that are so integral to strong national security and a strong economy, however, it is only appropriate that there are strong controls in place to detect and investigate corrupt behaviour and to ensure any workers who act corruptly are prosecuted to the full extent of the law.
This Bill will therefore ensure the Law Enforcement Integrity Commissioner has an unhindered ability to investigate suspected law enforcement related corrupt activity across my Department, regardless of the role, location or job title of an individual officer, including in non-operational roles.
There is one further matter in this Bill I would like to mention, and that relates to proposed amendments to the Work, Health and Safety Act, or the WHS Act.
The WHS Act imposes duties on persons conducting a business undertaking and workers to protect the health and safety of themselves and others. The thresholds imposed by these provisions are that workers should exercise 'reasonable care'.
The WHS Act also provides that nothing in the Act requires a person to take or refrain from taking any action that would or could reasonably be expected to be prejudicial to Australia's national security or defence.
Sections 12C and 12D of the WHS Act enable the Director-General of Security and the Chief of the Defence Force to make declarations clarifying how the provisions within the WHS Act apply or are modified in cases relating to Australia's national security and defence. These declaration provisions importantly assist in providing assurance to front line officers about how they can meet their obligations under the WHS Act while also fulfilling their obligation to protect Australia's national security and defence.
These declarations can only be made with the agreement of the Minister for Employment.
The Chief of the Defence Force currently has a declaration in place under this section of the WHS Act to cover certain elements of Operation Sovereign Borders. This declaration covers both Australian Defence Force personnel and ACBPS workers who are working together to protect Australia's sovereignty.
Into the future, workers in the Australian Border Force, like their counterparts in the Australian Defence Force and some other national security agencies will at times be involved in fast moving and inherently high-risk activities. This is particularly evident in the on-water maritime border protection environment, where some of the risks are difficult to predict and control in comparison to other workplace environments. Employees involved in these special operations (such as fishery or Southern Ocean Patrols) often need to make difficult, time-critical judgments, and any uncertainty could threaten the effectiveness of the activity or the safety of the officer or others.
Amendments proposed in this Bill will give the ABF Commissioner the ability to assure Australian Border Force workers in these environments and remove any doubt that they can professionally and diligently perform the tasks required of them, without any legal or operational uncertainty about how the WHS Act applies. It will do this by enabling the ABF Commissioner to make declarations under the section 12C national security provision and section 12D defence provision of the Act clarifying how the Act applies or is modified in particular operations.
At all times, the Secretary of my Department and the ABF Commissioner will continue to give precedence to the health and safety of immigration and border protection workers and other persons in the workplace, and promote the objectives of the WHS Act. Employees will continue to undertake risk assessments and be provided with the training and equipment they need to undertake the important roles the Government and the Australian community need them to do.
The bill also includes important safeguards around the making of a declaration by the ABF Commissioner. The ABF Commissioner must take into account the need to promote the objects of the WHS Act to the greatest extent consistent with the maintenance of Australia's national security and Defence. To make a declaration, the ABF Commissioner must consult with the Secretary of the Department. In addition, for declarations under section 12C, the Director-General of Security must be consulted; and for a declaration under section 12D, the Chief of the Defence Force must be consulted. The ABF Commissioner must also seek the Employment Minister's approval prior to a declaration being made.
This amendment to the WHS Act appropriately recognises the risks faced by Australian Border Force officers in protecting Australia's sovereignty and security.
This Bill deserves the support of all parties. Together with the Australian Border Force Bill 2015, it will assist us to remain prosperous, strong and secure in the twenty-first century as we deal with increasing demands and threats to our immigration and border protection systems.
This government is serious about strong and effective border protection. The measures in this Bill underscore that commitment, and I commend it to the Senate.
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015
(7) Schedule 1, item 1, page 11 (after line 5), after section 187C, insert:
187CA Information or documents must be kept in Australia
A service provider must take all reasonable steps to ensure that information or a document that the provider must keep under section 187A is:
(a) kept in Australia; and
(b) kept by a body incorporated, owned and operated in Australia.
These days every bit of data is sensitive and I know Telstra stores its data in 13 different places
(7) Schedule 1, item 1, page 11 (before line 6), at the end of Division 1, after proposed section 187CA, add:
187CB Destruction of records
If:
(a) information, or a document, is kept, or caused to be kept, by a service provider in accordance with section 187A; and
(b) the period for which the service provider must keep, or cause to be kept, the information or document has ended; and
(c) the information or document is no longer required in relation to billing by the service provider;
the service provider must cause the information or document, including any copies of the information or document, to be destroyed as soon as practicable.
Note: If a preservation notice is in force under Part 3‑1A this section does not apply to require the destruction of any information or documents that are the subject of the preservation notice.
(8) Schedule 1, item 1, page 13 (after line 19), after subsection 187G(1), insert:
Copy of any comments must be given to service provider
(1A) If the Communications Access Co‑ordinator receives a comment from an enforcement agency or security authority on a data retention implementation plan, the Co‑ordinator must give the service provider a copy of the comment as soon as practicable.
(9) Schedule 1, item 1, page 13 (lines 20 to 31), omit subsection 187G(2), substitute:
Request for amendment of original plan
(2) If:
(a) the Communications Access Co‑ordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan; and
(b) the Co‑ordinator considers the request to be a reasonable one;
the Co‑ordinator must request that the service provider make the amendment within 30 days (the response period ) after receiving the comment or summary.
Note: The Communications Access Co‑ordinator must give the service provider a copy of the comment as soon as practicable, see subsection (1).
(2) If:
(a) the Communications Access Co‑ordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan; and
(b) the Co‑ordinator considers the request to be a reasonable one;
the Co‑ordinator:
(c) must request that the service provider make the amendment within 30 days … after receiving the comment or summary; and
(d) may give the service provider a copy of the comment or a summary of the comment.
(4) If the service provider indicates that it does not accept a request for an amendment of the original plan, the Communications Access Co‑ordinator must:
(a) refer the request and the service provider’s response to the ACMA—
(b) request the ACMA to determine whether any amendment of the original plan is required.
(5)The ACMA must then:
(a) determine in writing that no amendment of the original plan is required in response to the request for the amendment; or
(b) if, in the opinion of the ACMA:
(i) the request for the amendment is a reasonable one; and
(ii) the service provider’s response to the request for the amendment is not reasonable;
determine in writing that the original plan should be amended in a specified manner and give a copy of the determination to the service provider.
(10) Schedule 1, item 1, page 16 (lines 18 and 19), omit "a specified service provider from the obligations imposed on the service provider", substitute "a specified class of service provider from the obligations imposed on the class of service provider".
(11) Schedule 1, item 1, page 16 (line 22), omit "a specified service provider", substitute "a specified class of service provider".
(12) Schedule 1, item 1, page 16 (line 25), omit "a specified service provider", substitute "a specified class of service provider".
(13) Schedule 1, item 1, page 17 (line 8), omit "relating to the service provider", substitute "relating to the class of service provider of which the service provider is a member".
(14) Schedule 1, item 1, page 17 (lines 23 to 27), omit subsection 187K(6), substitute:
(6) A decision that is taken under paragraph (5)(b) to have been made in relation to a class of service of providers has effect only until the Communications Access Co‑ordinator makes, and communicates to the service provider that made the application, a decision on the application.
(15) Schedule 1, item 1, page 17 (after line 27), after subsection 187K(6), insert:
Decision to be published
(6A) If a decision is made under subsection (1), or taken to have been made under subsection (5)(b), as soon as practicable:
(a) the decision must be published on the Department's website; and
(b) the Communications Access Co‑ordinator must take all reasonable steps to notify service providers in the relevant class of service providers.
(16) Schedule 1, item 1, page 17 (lines 29 and 30), omit "a service provider", substitute "a class of service providers".
(17) Schedule 1, item 1, page 18 (line 1), omit "the service provider's", substitute "the class of service providers'".
(18) Schedule 1, item 1, page 18 (line 3), omit "the service provider's", substitute "the class of service providers'".
(19) Schedule 1, item 1, page 18 (line 6), omit "the service provider has identified", substitute "have been identified by service providers in the relevant class".
(20) Schedule 1, item 1, page 19 (lines 11 to 20), omit section 187KB, substitute:
187KB Commonwealth must make a grant of financial assistance to service providers
(1) The Commonwealth must make a grant of financial assistance to a service provider for the purpose of assisting the service provider to comply with the additional costs that service provider's incur in complying with the service provider's obligations under this Part.
(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the service provider.
(3) An agreement under subsection (2) may be entered into on behalf of the Commonwealth by the Minister.
… it was unreasonable for the Government to push for the legislation to be passed into law before providing detail on its commitment to contribute to up-front capital costs that consultants estimate could cost more than $319 million.
"We are not asking Senators to block the Bill, but simply to delay its passage until Government provides some detail about the contribution it has promised to make—given that telecommunication users will inevitably shoulder much of the burden of any Government shortfall," Mr Stanton said.
Mr Stanton said the Government should spell out the dollar value of its contribution, or at the very least the percentage of the total cost that it will contribute.
We write as the Chief Executive Officers/Senior Executives of a broad spectrum of Australian telecommunications carriers and carriage service providers (C/CSPs) to seek clarity as to the Government’s stated intention to provide a contribution to the upfront capital expenses that may fall on our industry sector following the anticipated debate and potential passage of the … Bill …
… … …
Our request to you is, we believe, relatively simple and reasonable.
It is that the Government provide to industry, the Parliament and the wider community a degree of certainty as to the size of the Government's planned contribution (and the planned methodology for apportioning those funds between C/CSPs of differing types and market shares) in advance of the Bill being debated and potentially passed into law.
The Senate divided. [20:34]
(Temporary Chairman—Senator Bernardi)
(8) Schedule 1, item 1, page 21 (after line 31), after section 187N, insert:
187NA Sunset provision
This Part (other than section 187N) ceases to be in force at the end of the third anniversary of the implementation phase for this Part.
(9) Schedule 1, page 22 (after line 15), after Part 1, insert:
Part 1A—Amendments relating to authorisations
Telecommunications (Interception and Access) Act 1979
1AA Section 178 (heading)
Repeal the heading, substitute:
178 Authorisations for access to existing information or documents
1AB Subsection 178(3)
Repeal the subsection, substitute:
(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of a serious contravention.
1AC Section 179
Repeal the section.
1AD Paragraph 186(1)(b)
Repeal the paragraph.
The Committee has considered very carefully the views expressed that telecommunications access should be limited to sufficiently serious matters, such as serious contraventions of the law or serious national security issues.
… The Committee notes that the level of intrusion into privacy incurred by accessing telecommunications data will vary depending on the particular circumstances, including the nature and volume of the telecommunications data accessed. The Committee also notes the complexities in balancing the competing public interests of individual privacy with enforcement of the law and protection of national security.
… On balance, the Committee considers that the requirement in section 180F should be replaced with a more stringent requirement for the authorising officer to be satisfied on reasonable grounds that the particular disclosure or use of telecommunications data being proposed is proportionate to the intrusion into privacy.
… the committee's major concern was that there appear to be no significant limits on the type of investigation to which a valid disclosure authorisation for existing data may apply.
The committee notes that the government has not accepted the committee's recommendation that, to ensure a proportionate limitation on the right to privacy—
an appropriate threshold should be established to restrict access to retained data to investigations of specified threatened or actual crimes that are serious, or to categories of serious crimes such as major indictable offences.
That is, they do not appear to be sufficiently serious to justify such an interference as being proportionate to the stated legitimate objective of the scheme. Indeed while the response focuses on the need for mandatory data retention—
in relation to complex investigations, serious crime and national security, access to retained data under the scheme will not be restricted to such investigations.
180F Authorised officers to consider privacy
Before making an authorisation … in relation to the disclosure or use of information or documents, the authorised officer considering making the authorisation must have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable, having regard to the following matters:
(a) the likely relevance and usefulness of the information or documents;
(b) the reason why the disclosure or use concerned is proposed to be authorised.
(aa) the gravity of any conduct in relation to which the authorisation is sought, including:
(i) the seriousness of any offence in relation to which the authorisation is sought; and
(ii) the seriousness of any pecuniary penalty in relation to which the authorisation is sought; and
(iii) the seriousness of any protection of the public revenue in relation to which the authorisation is sought; and
(iv) whether the authorisation is sought for the purposes of finding a missing person;
(i) the seriousness of any offence in relation to which the authorisation is sought;
The Court of Justice declares the Data Retention Directive to be invalid
It entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary.
The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data. Furthermore, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the persons concerned a feeling that their private lives are the subject of constant surveillance.
Firstly, the directive covers, in a generalised manner, all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.
Secondly, the directive fails to lay down any objective criterion which would ensure that the competent national authorities have access to the data and can use them only for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights in question, may be … sufficiently serious to justify such an interference.
In particular, the access to the data is not made dependent on the prior review by a court or by an independent administrative body.
… the directive imposes a period of at least six months, without making any distinction between the categories of data on the basis of the persons concerned or the possible usefulness of the data in relation to the objective pursued.
It states—
It states that the retention of data required by the directive is not such as to adversely affect the essence of the fundamental rights to respect for private life and to the protection of personal data. The directive does not permit the acquisition of knowledge of the content of the electronic communications as such and provides that service or network providers must respect certain principles of data protection and data security—
Furthermore, the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.
However, the Court is of the opinion that, by adopting the Data Retention Directive, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality.
Emeritus Professor Gillian Triggs, President of the Australian Human Rights Commission, drew a distinction between the magnitude of the privacy intrusion associated with access to telecommunications data by law enforcement and national security agencies, which she characterised as ‘powerful’, compared to the mandatory collection and retention of telecommunications data by a third-party service provider, which she characterised as ‘small’.
The committee divided. [21:44]
(The Temporary Chairman—Senator Dastyari)
(10) Schedule 1, item 1C, page 23 (line 26), omit "journalist information warrants", substitute "protected class warrants".
(11) Schedule 1, item 1C, page 23 (line 28), omit "journalist information warrants", substitute "protected class warrants".
(14) Schedule 1, item 5, page 29 (lines 9 and 10), omit the definition of journalist information warrant .
(15) Schedule 1, item 5, page 29 (after line 12), after the definition of Part 4 ‑1 issuing authority , insert:
protected class : each of the following is aprotected class of persons:
(a) Australian legal practitioners (within the meaning of the Evidence Act 1995);
(b) journalists (within the meaning of section 126G of the Evidence Act 1995 );
(c) health practitioners (within the meaning of the Health Practitioner Regulation National Law);
(d) any other class of professional determined by the Minister under subsection (7).
protected class warrant means a warrant issued under Division 4C of Part 4‑1.
(16) Schedule 1, item 5, page 29 (lines 26 to 29) omit paragraphs (a) and (b) of the definition of source, substitute:
(a) to another journalist; and
(b) in the normal course of the other person's work as a journalist; and
(17) Schedule 1, page 30 (after line 2), after item 5, insert:
5A At the end of section 5
Add:
(7) The Minister may, by legislative instrument, determine a class of professional for the purposes of paragraph (d) of the definition of protected class .
(18) Schedule 1, item 6E, page 31 (lines 27 and 28), omit "journalist information warrant", substitute "protected class warrant".
(19) Schedule 1, item 6F, page 32 (lines 7 and 8), omit "journalist information warrant", substitute "protected class warrant".
(20) Schedule 1, item 6G, page 32 (lines 21 and 22), omit "journalist information warrant", substitute "protected class warrant".
(21) Schedule 1, item 6H, page 33 (lines 1 and 2), omit "journalist information warrant", substitute "protected class warrant".
(22) Schedule 1, item 6L, page 33 (line 23) to page 43 (line 28), omit the item, substitute:
6L After Division 4B of Part 4 ‑1
Insert:
Division 4C—Protected class warrants
Subdivision A—The requirement for protected class warrant
180G The Organisation
(1) An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person if the eligible person knows or reasonably believes that particular person to be:
(a) a member of a protected class; or
(b) an employer of such a person;
unless a protected class warrant is in force in relation to that particular person.
(2) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a protected class warrant) may be issued under this Act.
180H Enforcement agencies
(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A or 180 that would authorise the disclosure of information or documents relating to a particular person if the authorised officer knows or reasonably believes that particular person to be:
(a) a member of a protected class; or
(b) an employer of such a person;
unless a protected class warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.
(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if the authorised officer knows or reasonably believes that particular person to be:
(a) a member of a protected class; or
(b) an employer of such a person.
(3) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a protected class warrant) may be issued under this Act.
Subdivision B—Issuing protected class warrants to the Organisation
180J Requesting a protected class warrant
(1) The Director‑General of Security may request the Minister to issue a protected class warrant in relation to a particular person.
(2) The request must specify the facts and other grounds on which the Director‑General considers it necessary that the warrant be issued.
180K Further information
(1) The Minister may require the Director‑General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.
(2) If the Director‑General breaches the requirement, the Minister may:
(a) refuse to consider the request; or
(b) refuse to take any action, or any further action, in relation to the request.
180L Issuing a protected class warrant
(1) After considering a request under section 180J, the Minister must:
(a) issue a protected class warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or
(b) refuse to issue a protected class warrant.
(2) The Minister must not issue a protected class warrant unless the Minister is satisfied that:
(a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and
(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality that relates to the protected class of which the person is a member, having regard to:
(i) the extent to which the privacy of any person or persons, or any duties of confidentiality, would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and
(ii) the gravity of the matter in relation to which the warrant is sought; and
(iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and
(iv) whether reasonable attempts have been made to obtain the information or documents by other means; and
(v) any submissions made by a Public Interest Advocate under section 180X; and
(vi) any other matters the Minister considers relevant.
(3) A protected class warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.
180N Duration of a protected class warrant
A protected class warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.
180P Discontinuance of authorisations before expiry of a protected class warrant
If, before a protected class warrant issued under this Subdivision ceases to be in force, the Director‑General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:
(a) forthwith inform the Minister accordingly; and
(b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.
Subdivision C—Issuing protected class warrants to enforcement agencies
180Q Enforcement agency may apply for a protected class warrant
(1) An enforcement agency may apply to a Part 4‑1 issuing authority for a protected class warrant in relation to a particular person.
(2) The application must be made on the agency's behalf by:
(a) if the agency is referred to in subsection 39(2)—a person referred to in that subsection in relation to that agency; or
(b) otherwise:
(i) the chief officer of the agency; or
(ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).
(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.
(4) A nomination under subsection (3) is not a legislative instrument.
(5) The application may be made in writing or in any other form.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
180R Further information
(1) The Part 4‑1 issuing authority may require:
(a) in any case—the chief officer of the agency; or
(b) if the application is made, on the agency's behalf, by a person other than the chief officer—that other person;
to give to the Part 4‑1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.
(2) If the chief officer or other person breaches the requirement, the Part 4‑1 issuing authority may:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
180S Oaths and affirmations
(1) Information given to the Part 4‑1 issuing authority in connection with the application must be verified on oath or affirmation.
(2) For the purposes of this section, the Part 4‑1 issuing authority may:
(a) administer an oath or affirmation; or
(b) authorise another person to administer an oath or affirmation.
The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.
180T Issuing a protected class warrant
(1) After considering an application under section 180Q, the Part 4‑1 issuing authority must:
(a) issue a protected class warrant that authorises the making of authorisations under one or more of sections 178, 178A and 180 in relation to the particular person to which the application relates; or
(b) refuse to issue a protected class warrant.
(2) The Part 4‑1 issuing authority must not issue a protected class warrant unless the Part 4‑1 issuing authority is satisfied that:
(a) the warrant is reasonably necessary for whichever of the following purposes are applicable:
(i) if the warrant would authorise the making of authorisations under section 178—for the enforcement of a serious contravention;
(ii) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;
(iii) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4); and
(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality that relates to the protected class of which the person is a member, having regard to:
(i) the extent to which the privacy of any person or persons, or any duties of confidentiality, would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and
(ii) the gravity of the matter in relation to which the warrant is sought; and
(iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and
(iv) whether reasonable attempts have been made to obtain the information or documents by other means; and
(v) any submissions made by a Public Interest Advocate under section 180X; and
(vi) any other matters the Part 4‑1 issuing authority considers relevant.
180U Form and content of a protected class warrant
(1) A protected class warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4‑1 issuing authority who issues it.
(2) A protected class warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.
(3) A protected class warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.
(4) A Part 4‑1 issuing authority must not vary a protected class warrant issued under this Subdivision by extending the period for which it is to be in force.
(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.
180V Entry into force of a protected class warrant
A protected class warrant issued under this Subdivision comes into force when it is issued.
180W Revocation of a protected class warrant by chief officer
(1) The chief officer of an enforcement agency:
(a) may, at any time, by signed writing, revoke a protected class warrant issued under this Subdivision to the agency; and
(b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.
(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.
Subdivision D—Miscellaneous
180X Public Interest Advocates
(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.
(2) A Public Interest Advocate may make submissions:
(a) to the Minister about matters relevant to:
(i) a decision to issue, or refuse to issue, a protected class warrant under section 180L; or
(ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or
(b) to a Part 4‑1 issuing authority about matters relevant to:
(i) a decision to issue, or refuse to issue, the warrant under section 180T; or
(ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or
(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.
(4) A declaration under subsection (1) is not a legislative instrument.
(23) Schedule 1, item 6V, page 46 (line 11) to page 47 (line 29), omit the item, substitute:
6V At the end of Division 6 of Part 4 ‑1
Add:
182A Disclosure/use offences: protected class warrants
(1) A person commits an offence if:
(a) the person discloses or uses information; and
(b) the information is about any of the following:
(i) whether a protected class warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;
(ii) the making of such a warrant;
(iii) the existence or non‑existence of such a warrant;
(iv) the revocation of such a warrant.
Penalty: 15 penalty units.
(2) A person commits an offence if:
(a) the person discloses or uses a document; and
(b) the document consists (wholly or partly) of any of the following:
(i) a protected class warrant (other than such a warrant that relates only to section 178A);
(ii) the revocation of such a warrant.
Penalty: 15 penalty units.
182B Permitted disclosure or use: protected class warrants
Paragraphs 182A(1)(a) and (2)(a) do not apply to a disclosure or use of information or a document if:
(a) the disclosure or use is for the purposes of the warrant, revocation or notification concerned; or
(b) the disclosure or use is reasonably necessary:
(i) to enable the making of submissions under section 180X; or
(ii) to enable a person to comply with his or her obligations under section 185D or 185E; or
(iii) to enable the Organisation to perform its functions; or
(iv) to enforce the criminal law; or
(v) to enforce a law imposing a pecuniary penalty; or
(vi) to protect the public revenue; or
(c) in the case of a disclosure—the disclosure is:
(i) to an IGIS official for the purpose of the Inspector‑General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector ‑General of Intelligence and Security Act 1986 ; or
(ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or
(d) in the case of a use—the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector ‑General of Intelligence and Security Act 1986 ; or
(e) the disclosure or use is with the consent of the person to whom the warrant relates; or
(f) the disclosure or use is in the public interest.
Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code ).
(24) Schedule 1, item 6X, page 48 (line 1) to page 49 (line 36), omit section 185D, substitute:
185D Notification etc. of authorisations
The Organisation
(1) If a protected class warrant is issued under Subdivision B of Division 4C of Part 4‑1:
(a) the Director‑General of Security must, as soon as practicable, give a copy of the warrant to the Inspector‑General of Intelligence and Security; and
(b) the Minister must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant.
(2) If an authorisation under Division 3 of Part 4‑1 is made under the authority of the warrant, the Director‑General of Security must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Inspector‑General of Intelligence and Security.
(3) If:
(a) the Inspector‑General gives to the Minister a report under section 22 or 25A of the Inspector ‑General of Intelligence and Security Act 1986 ; and
(b) the report relates (wholly or partly) to one or both of the following:
(i) a protected class warrant issued to the Organisation;
(ii) one or more authorisations referred to in subsection (2) of this section;
the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.
(4) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector‑General on:
(a) a protected class warrant; or
(b) an authorisation or authorisations;
to which a report referred to in paragraph (3)(b) of this section relates.
Enforcement agencies
(5) If a protected class warrant is issued to an enforcement agency:
(a) if the agency was the Australian Federal Police:
(i) the Commissioner of Police must, as soon as practicable, give copies of the warrant to the Minister and the Ombudsman; and
(ii) the Minister must, as soon as practicable after receiving a copy, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant; and
(b) otherwise—the chief officer of the agency must, as soon as practicable, give a copy of the warrant to the Ombudsman.
(6) If an authorisation under Division 4 of Part 4‑1 is made under the authority of the warrant, the chief officer of the agency must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Ombudsman.
(7) If:
(a) the Ombudsman gives to the Minister a report under section 186J of this Act; and
(b) the report relates (wholly or partly) to one or both of the following:
(i) a protected class warrant issued to the Australian Federal Police;
(ii) one or more authorisations, referred to in subsection (6) of this section, that were made by one or more authorised officers of the Australian Federal Police;
the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.
(8) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on:
(a) a protected class warrant; or
(b) an authorisation or authorisations;
to which a report referred to in paragraph (7)(b) of this section relates.
(25) Schedule 1, item 6Y, page 51 (lines 16 to 21), omit paragraphs 186(1)(i) and (j), substitute:
(i) the number of authorisations, referred to in paragraph (e) of this subsection, that were made under protected class warrants issued to the agency under Subdivision C of Division 4C of Part 4‑1; and
(j) the number of protected class warrants issued to the agency under that Subdivision during the period; and
There is no apparent public policy basis for recognising the need to safeguard confidential journalists' sources, while not also protecting confidential and privileged information between lawyers and their clients. People who engage a lawyer need to know their communications are confidential and that legal professional privilege is not lost under the proposed Data Retention Bill . The confidentiality of client-lawyer communication is a long-held common law right and we need to be vigilant to protect it. It is not difficult to envisage situations where client-lawyer telecommunications data would reveal a range of information that could compromise confidentiality and even legal professional privilege.
…what would happen if a whistle-blower seeks legal advice prior to, or during communication with a journalist? Under the proposed amendments, the journalist's communication may be confidential, but what of the communications between a journalist or journalist's source and the lawyer? Data could allow inferences to be drawn from whether a lawyer has been contacted; the identity and location of the client, lawyer and witnesses; the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications.
…The Law Council's position is simple: lawyer communications deserve the same level of protection as that afforded to journalists.
In many cases it is very important to keep confidential and protect even the fact that a lawyer is in contact with particular people. Any mass retention of communications data between lawyers and their clients could threaten the necessary trust between lawyers and their clients, allow an issue of sensitivity to be inferred or revealed and undermine the ability of lawyers to advocate on behalf of their clients.
Client legal privilege is a right for a client of a lawyer not to have their communications associated with legal advice or impending litigation disclosed without their consent.
The Law Council’s Client Legal Privilege Committee has noted that although telecommunications data alone may not reveal the content or substance of lawyer/client communications, it would, at the very least, be able to provide an indication of whether:
• a lawyer has been contacted;
• the identity and location of the lawyer;
• the identity and location of witnesses;
• the number of communications and type of communications between a lawyer and a client, witnesses and the duration of these communications.
… client legal privilege does not attach to legal advice which furthers the commission of a crime.
For those of us spared the terrors of war, to be worthy of our dead, is to remember them. It is to remember that they died, the men and women of this community, in their thousands, in faraway lands, interred in the ground upon which they perished.
It is to remember those who loved them; their fathers and mothers, wives, children and friends. It is to remember that the pain in the hearts of those who loved them, who lived after them, never healed; the promise of their lives together, unfulfilled.
It is to remember that many who returned were also harmed, so that they and their families continued to suffer. When we wish for peace it is to remember that the lasting meaning of their suffering — their warning to those who follow ¬remains unheeded so long as there is war.
For while their service has now ended - their battlefields covered over with meadow, field and forest, jungle and desert sand — let us make of their absence a powerful presence. May we forever hold them in our minds, and the loved ones they left behind.
Anzac Day is a day on which we should also ask those hard questions about the meaning of wars, their causes and outcomes in order to become resolute about peace as well as resolute about fighting when fighting is a genuinely necessary and unavoidable act of self-protection.
And if we do that, Anzac Day will become even more meaningful because after all, that was what 'the dead thought they were dying for.
Remembrance and honour alone will neither bring nor preserve the peace for which they thought they died.
The overarching obligation we have when we anticipate any Anzac commemoration is to truly recognise and accept the brutality, senselessness and futility of war.
… now the war had lasted for four years. It was responsible for the death of over 8 million able bodied men. It was responsible for the wounding and maiming of many, many millions more .It caused universal destruction, desolation, distress without bringing any compensating advantage to any one of the belligerents. It was a war which settled nothing, it was a war in which all concerned came out losers.
Europe's rulers and political leaders knew something most of their people didn't, a war was coming. A few powerful, old, aristocratic men brought war on the world from behind closed doors, free from the scrutiny of a fully enfranchised public or an uncensored press and then for four years, European governments compelled millions of young men to go to war, to die, to be terribly mutilated, gassed or mentally ruined. They have used propaganda, plan lies, white feathers, threats and political expedience to goad, threaten, terrify and humiliate men into uniform.
Only a legal construction distinguished the Great War from the government sponsored mass murder of youth.
Mr Churchill's exhortation to us is that we seek out on this anniversary, with the most intense care, every detail of the struggle that was the Great War. Implicit in that exhortation is that we seek the truth, the truth of the causes of war, the truth of what happened during and after the war, and the truth of what we have done to avoid there being another war like it.
Until we seek the truth we cannot begin to pay proper homage and respect those who have fallen in service of this country.
The truth is that things are now so dire that we cannot afford to persist with business as usual; a change of direction is essential…