The PRESIDENT (Senator the Hon. Stephen Parry) took the chair at 9:30, read prayers and made an acknowledgement of country.
That—
(1) T he Legal and Constitutional Affairs References Committee be required to hold a private meeting today, 25 June 2015, otherwise than in accordance with standing order 33(1), immediately following the adjournment of the scheduled Legislation Committee meeting or at 11 am, whichever is earliest and that the agenda for the Reference Committee meeting include:
(a) The election of a new chair of the committee; and
(b) Deliberation on the committee's progress on its inquiry into the handling of a letter sent by Mr Mon Haron Monis to the Attorney-General, including the letter, dated 24 June 2015 from Mr Thawley, Secretary of the Department of Prime Minister and Cabinet, and received by committee on 24 June 2015.
(2) The time for the presentation of the report on the handling of a letter sent by Mr Mon Haron Monis to the Attorney-General be extended to 12 August 2015.
… the Legal and Constitutional Affairs References Committee be required to hold a private meeting today, 25 June 2015, otherwise than in accordance with standing order 33(1), immediately following the adjournment of the scheduled Legislation Committee meeting or at 11 am, whichever is earliest …
(a) The election of a new chair of the committee—
(b) Deliberation on the committee's progress on its inquiry into the handling of a letter by Mr Mon Haron Monis to the Attorney-General, including the letter, dated 24 June 2015 from Mr Thawley, Secretary of the Department of Prime Minister and Cabinet, and received by committee on 24 June 2015.
The time for the presentation of the report on the handling of a letter sent by Mr Mon Haron Monis to the Attorney-General be extended to 12 August 2015.
The Senate divided. [09:55]
(The President—Senator Parry)
That, on Thursday, 25 June 2015:
(a) the hours of meeting shall be 9.30 am to adjournment;
(b) consideration of general business private senators’ bills under temporary order 57(1)(d)(ia) shall not be proceeded with and that government business shall have precedence for 2 hours and 20 minutes;
(c) consideration of general business and consideration of committee reports, government responses and Auditor General’s reports under standing order 62(1) and (2) shall not be proceeded with;
(d) the routine of business from 12.45 pm till not later than 2 pm, and from not later than 4.30 pm shall be government business only;
(e) divisions may take place after 4.30 pm;
(f) the question for the adjournment of the Senate shall be proposed after it has finally considered the Migration Amendment (Regional Processing Arrangements) Bill 2015, or a motion for the adjournment is moved by a minister, whichever is the earlier; and
(g) debate on the question for the adjournment shall not exceed 40 minutes, and a senator shall not speak to that question for more than 10 minutes
The Senate divided. [10:18]
(The President—Senator Parry)
Migration Amendment (Regional Processing Arrangements) Bill 2015
That so much of standing orders be suspended as would prevent me moving a motion to provide for the consideration of the matter, namely a motion to give precedence to a motion to exempt this bill from the bills cut-off order.
No, that is incorrect, Senator. The government is of the view that the offshore processing arrangements are lawful. That is the view of the government. … and I understand the former Labor government also believed—that the offshore processing arrangements were lawful.
That a motion to exempt this bill from the bills cut-off order may be moved immediately and have precedence over all other business today until determined.
The Senate divided. [10:32]
(The President—Senator Parry)
That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the bill, allowing it to be considered during this period of sittings.
That the question be now put.
STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 2015 WINTER SITTINGS
MIGRATION AMENDMENT (REGIONAL PROCESSING ARRANGEMENTS) BILL
Purpose of the Bill
The bill amends the Migration Act 1958 to provide express statutory authority for actions undertaken by the Commonwealth in relation to an arrangement with a regional processing country or the regional processing functions of a country, including expenditure related to those arrangements or functions.
Reasons for Urgency
This bill should be introduced and passed in the same sittings as it makes critical amendments to the Migration Act 1958 which will ensure that there is a robust legislative basis for regional processing and related expenditure.
Proceedings have been commenced in the High Court which challenge aspects of the Commonwealth’s regional processing arrangements. The amendments in this bill seek to address the issues raised in these proceedings. As it is desirable for these amendments to be in place prior to the High Court Hearing, this bill must be passed as a matter of urgency.
That this bill be now read a second time.
MIGRATION AMENDMENT (REGIONAL PROCESSING ARRANGEMENTS) BILL 2015
I move that this Bill be now read a second time.
The Migration Amendment (Regional Processing Arrangements) Bill 2015 amends the Migration Act 1958 to provide express statutory authority which applies where the Commonwealth has entered into an arrangement with another country with respect to the regional processing functions of that country.
The amendment solely goes to:
1. Enabling payments; and
2. Enabling the fact of regional processing.
The legislation does not change or in any way expand the current situation in regional offshore processing.
The amendments made by this Bill strengthen and put beyond any doubt the existing legislative authority to give practical effect to the substantive regional processing provisions inserted by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 .
This is achieved by providing clear express statutory authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries. This also extends to the expenditure of Commonwealth money on these arrangements.
The substantive regional processing provisions came into effect on 18 August 2012. It provides for the transfer of illegal maritime arrivals, who arrive in Australia by boat without a visa, to be transferred to another country for assessment by that country of their claims to be refugees. The only condition for the designation of a country is that the Minister thinks that it is in the national interest to make the designation. Currently, the Republic of Nauru and the Independent State of Papua New Guinea are designated as regional processing countries.
The current regional processing framework was introduced by the Labor Government. The amendments were made to the Migration Act 1958 by theMigration Legislation Amendment (Regional Processing and Other Measures) Act 2012 to:
On 10 September 2012, the then Minister for Immigration and Citizenship designated Nauru a regional processing country .
On 9 October 2012, the then Minister for Immigration and Citizenship designated the Independent State of Papua New Guinea a regional processing country .
The Bill confirms the ability of Australian officials, acting on behalf of the Commonwealth, to take action to assist the foreign government in the regional processing country, consistent with the law of that country.
The Bill only seeks to ensure that there is express legislative authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries. It does not purport to have any effect in itself on the rights of those persons.
The Bill applies where the Commonwealth has entered into an arrangement with a person or body in relation to the regional processing functions of a country. 'Person' includes a 'body politic' and therefore a country
Specifically, the Bill provides statutory authority for the Commonwealth to:
In this Bill, "regional processing functions" includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.
The Bill also makes clear that an arrangement is a very broad term, and can apply to arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
The term "action" explicitly includes exercising restraint over the liberty of a person. I wish to make it clear that Australia does not restrain the liberty of persons in regional processing countries. To the extent that the liberty of persons taken to regional processing countries is restrained in those countries, this is done by those countries under the respective laws of those countries.
These amendments do not otherwise provide authority for any restraint over the liberty of persons. The lawful authority for any restraint over liberty arises under the law of the relevant regional processing country.
To avoid any doubt about the intention of these amendments, the Bill includes a provision to clarify that these amendments are intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action. The purpose of this provision is to assist readers to understand the purpose of these amendments, which are limited to providing the Commonwealth with express legislative authority to take action to assist foreign governments in regional processing countries.
These amendments will apply from 18 August 2012. This has the effect of retrospectively and prospectively authorising Commonwealth actions and expenditure in regional processing countries. 18 August 2012 is the date on which the existing legislative framework for regional processing under the Migration Act commenced. The retrospective operation of these provisions will provide authority for all activity undertaken in relation to regional processing arrangements for the entire period these arrangements have been in place.
The Government wishes to ensure that there is a sustainable and solid framework for Australia's role in regional processing arrangements. To ensure the long term viability of regional processing, the amendments in the Bill seek to strengthen the existing legislative framework for regional processing activities.
There is no question that the regional processing arrangements are important to Australia's strong border protection policies. Specifically, regional processing arrangements help combat people smuggling. Offshore processing removes the attraction of engaging a people smuggler and taking a dangerous boat journey. Anyone who comes to Australia illegally by boat without a visa will never be settled in Australia. Regional processing is therefore an important regional solution for maintaining Australia's strong border protection policies.
The Government does not want the sustainability of regional processing weakened. The Australian people do not want to see a surge in people smuggling ventures again. Nor do we want people's lives put at risk. We want a sustainable and solid framework for processing claims in regional processing countries. The Australian population deserves greater confidence in the integrity of the regional processing framework.
Regional cooperation is a key element of the Government's approach to the protection of our borders. This Bill will ensure that Australia is able to continue to provide the necessary support and assistance to regional processing countries to carry out these arrangements.
I trust this Bill will have the support of all members, most particularly those with an interest in ensuring the continued success of regional processing arrangements.
To take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country; …
When Labor were asked to support this amendment there was some considerable recollection in my party of Labor's first regional resettlement policy that centred on the Malaysian arrangement. Because of the High Court's decision in that case, the fate of this plan was left in the hands of the parliament, just as we are being entrusted now. It was a debate that captured, for all to see, the poisonous, obstructionist negativity of the Abbott opposition. We remember that, after years of slogans and scaremongering, they suddenly sought to lecture us on the rights of refugees. We remember the then shadow minister for immigration, the member for Cook—
Mr Scott Morrison—
the man who said in 2011 that allowing relatives of asylum seekers who drowned at sea to attend the funeral of their loved ones and, for some, the funeral of their own child was not a reasonable use of money—lecturing us about being humane.
… … …
We will never forget that when Prime Minister Gillard wrote to Tony Abbott asking for bipartisanship, seeking cooperation to reach a solution, he wrote back saying: 'This is a problem that you have created and it is your responsibility to solve.' That was his idea of leadership: 'This is your mess, you fix it.'
We will never forget the deal that the Liberals and the Greens did in teaming up to defeat the Malaysia arrangement. We will never forget the 689 souls that were lost after that vote. My fear is that the truth is that the coalition opposed the Malaysia arrangement not because they thought it would not work but precisely because they were afraid it would work. They played their politics hard.
… including sexualised dancing and pulling her pants down to invite adults to insert their finger into her anus. Despite child protection workers assessing her to be at "high risk of ongoing sexual abuse", … the immigration department did not remove her from detention.
… also claims that the government does not have jurisdiction to detain people offshore. Constitutionally, Australia has authority to lock people up onshore, and deport people. The HRLC—
maintains that Australia does not have specific legislative authority to lock people up in another country.
The Bill provides statutory authority for the Commonwealth to:
This Bill provides statutory authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries, including the expenditure of Commonwealth money on these arrangements. The Bill confirms the ability of Australian officials, acting on behalf of the Commonwealth, to take action to assist the foreign government in the regional processing country, consistent with the law of that country.
The amendments in the Bill will have retrospective and prospective effect.
Where does the prohibition on retrospective criminal laws come from?
Australia is a party to seven core international human rights treaties. The prohibition on retrospective criminal laws is contained in article 15 of the International Covenant on Civil and Political Rights (ICCPR).
Retrospective laws are commonly considered inconsistent with the rule of law. In his book on the rule of law, Lord Bingham wrote:
'Difficult questions can sometimes arise on the retrospective effect of new statutes, but on this point the law is and has long been clear: you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence'.
Retrospective laws make the law less certain and reliable. A person who makes a decision based on what the law is, may be disadvantaged if the law is changed retrospectively. It is said to be unjust because it disappoints 'justified expectations'.
While the ICC—
has jurisdiction over "crimes against humanity" and these could include people smuggling type offences ...
There's a couple of different ways that the ICC could be tasked by the UN—
to target people smugglers.
1) Australia could ask the UN Security council to refer cases of people smuggling to the ICC. If that request was granted by the security council, then the ICC would be officially authorized to Compulsory jurisdiction and against people smugglers.
2) The ICC statute or the Rome Statute, Australia signed on the 9th of December 1998, establishes a permanent international Criminal Court to try individuals accused of the most serious of crimes to the International community as a whole, namely genocide, crimes against humanity, war crimes and the crime of aggression.
3) The Rome Statute contains obligations on the State parties to co-operate fully with the ICC. The Rome statute applies to natural persons irrespective of whether they are government officials (eg Heads of State, Government and parliamentary officials)
4) No statute of limitations applies to crimes within the ICC's jurisdiction
5) The ICC is empowered by its enabling statute to sentence an offender to a term of imprisonment (not exceeding 30 years) a fine and to order forfeiture of assets and property derived directly or indirectly from e crime.
The purpose of this bill is clear: to restore to the executive the power to set Australia's border protection policies, specifically the power to transfer asylum seekers arriving at excised offshore places to a range of designated third countries within the region, while ensuring protection from refoulement, for the processing of their claims.
This is a power that was thought to exist until 31 August this year, when the majority of the High Court decided that transfers under section 198A of the Migration Act could only take place to countries legally bound to provide protections equivalent to those offered by Australia.
Subsequent legal advice has made it clear that the High Court's decision has thrown into significant doubt the ability of governments—present or future—to effect transfers to a range of countries in our region who are prepared to offer protection from refoulement, and will allow processing of refugee claims to be made, including Papua New Guinea and Nauru.
So today the government is introducing amendments to the Migration Act to make parliament's intention absolutely clear.
but the Senate notes:
the findings of the Review by Phillip Moss into conditions in Nauru and the evidence currently before the Senate Select Committee into conditions in Nauru.
The Senate divided. [12:21]
(The Deputy President—Senator Marshall)
Migration Amendment (Regional Processing Arrangements) Bill 2015
(1) Clause 2, page 2, at the end of the table, add:
3. Schedule 2 The day after this Act receives the Royal Assent.
(7) Page 4 (after line 5), at the end of the Bill, add:
Schedule 2—Detention of vulnerable persons
Migration Act 1958
1 Subsection 198AD(1)
Omit "sections 198AE, 198AF and 198AG", substitute "sections 198AE, 198AF, 198AG and 198AGA".
2 After section 198AG
Insert:
198AGA Vulnerable persons
(1) Section 198AD does not apply to an unauthorised maritime arrival if the person is a vulnerable person for the purpose of subsection (2).
(2) A person is a vulnerable person for the purpose of this subsection if:
(a) the person is aged under 18; or
(b) the person is the parent of guardian (or other family member) of a person covered by paragraph (a).
3 Application
The amendments to the Migration Act 1958 made by this Schedule apply in relation to an unauthorised maritime arrival on or after the day on which this Schedule commences.
4 Transitional—vulnerable persons transferred before Royal Assent
(1) This item applies to a person if:
(a) the person was an unauthorised maritime arrival at any time on or after 13 August 2012; and
(b) the person was taken from Australia to a regional processing country in accordance with subsection 198AD(2) of the Migration Act 1958 ; and
(c) at the time the person was taken to the regional processing country the person was:
(i) aged under 18; or
(ii) the parent or guardian (or other family member) of a person covered by subparagraph (i); and
(d) on the day this Act receives the Royal Assent, the person is:
(i) aged under 18; or
(ii) the parent or guardian (or other family member) of a person covered by subparagraph (i).
(2) As soon as reasonably practicable, an officer must ensure the person is removed from the regional processing country and returned to Australia.
That senators be discharged from and appointed to committees as follows:
Intelligence and Security—Joint Statutory Committee—
Appointed—Senators Gallagher and Wong, pursuant to the Intelligence Services Act 2001
Murray Darling Basin Plan—Select Committee—
Appointed—Senators Canavan and Ruston
Participating members: Senators Back, Bernardi, Bushby, Edwards, Fawcett, Heffernan, Johnston, Lindgren, Macdonald, McKenzie, McGrath, O'Sullivan, Reynolds, Seselja, Sinodinos, Smith and Williams
Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru—Select Committee—
Appointed—Substitute member: Senator Johnston to replace Senator Bernardi from Friday, 26 June 2015 to Friday, 31 July 2015
Participating member: Senator Bernardi
That
(a) government business orders of the day as shown in the list circulated in the chamber be considered from 12.45 pm today;
(b) the following business be called on after the bills listed in paragraph (a) till not later than 2 pm:
(i) tabling and adoption of Selection of Bills Committee report,
(ii) placing of business, and
(iii) discovery of formal business; and
(c) government business be called on at the completion of business listed in paragraph (b) till not later than 2 pm today.
Non-controversial government business:
No. 2 Defence Legislation (Enhancement of Military Justice) Bill 2015
No. 3 Export Charges (Imposition—General) Bill 2015
Export Charges (Imposition—Customs) Bill 2015
Export Charges (Imposition—Excise) Bill 2015
Export Charges (Collection) Bill 2015
No. 4 Imported Food Charges (Imposition—General) Bill 2015
Imported Food Charges (Imposition—Customs) Bill 2015
Imported Food Charges (Imposition—Excise) Bill 2015
Imported Food Charges (Collection) Bill 2015
No. 5 Tax and Superannuation Laws Amendment (Employee Share Schemes) Bill 2015
Defence Legislation (Enhancement of Military Justice) Bill 2015
The Bill gives statutory recognition which in effect does little to enhance the perceptions of a decreasing control by the chain of command.
Little consultation has been undertaken by DL in this process and little thought has been given to the mechanics. For example, the proposed section 110ZA(2) states that CDF (Chief of Defence Force) is to appoint the DDCS (Directorate of Defence Counsel Services) Director.
Firstly is it appropriate that the head of the chain of command should be the one appointing the body whose sole purpose is to assist the member, usually as a result of discipline decisions by the chain of command?
Currently the Director is a policy officer on rotation from DL (Defence Legal) for a period of 3 years.
This is problematic in that once their rotation is completed, they go back into Defence Legal and report through the same chain of command that they have been supposedly been battling against on behalf of the ADF accused members.
This has created significant difficulties in moving DDCS forward in both its roles and functions.
This year, however, a (RLO Reserve Legal Officer) on CFTS is in the role which has brought the first independent Director, allowing significant changes in policy and procedures to allow the Directorate to become effectively a legal aide office for the ADF members.
Significant concern has to be raised as to what will occur in 2016 unless the current Director is extended, or another independent RLO is appointed.
The functions in the proposed section 110ZB should be expanded to include the independent provision of legal assistance for all ADF members regardless of whether it is required as a result of discipline or administrative decisions by command.
Currently Navy has 3 independent personnel billets around Australia that solely looks after the member's interests. They report directly to DDCS.
As Army and Air Force are reluctant to enter into this arrangement, DDCS should be tasked with being the independent provider of legal assistance.
Currently command legal officers arrange the provision of legal assistance for members which is obviously a major conflict.
This can result in a number of issues depending on the Service—for example Air Force reluctant to engage a non Air Force RLO for a member despite the members request.
I would respectfully suggest that significant consultation needs to be undertaken in relation to this aspect of the Bill and/or it being referred off to a Committee.
The opportunity to create a statutorily independent DDCS (Directorate of Defence Counsel Services) for the benefit of all ADF members should not be lost.
That this bill be now read a third time.
Export Charges (Imposition—General) Bill 2015
Export Charges (Imposition—Customs) Bill 2015
Export Charges (Imposition—Excise) Bill 2015
Export Charges (Collection) Bill 2015
That the bills be now read a third time.
Imported Food Charges (Imposition—General) Bill 2015
Imported Food Charges (Imposition—Customs) Bill 2015
Imported Food Charges (Imposition—Excise) Bill 2015
Imported Food Charges (Collection) Bill 2015
That the bills be now read a third time.
Tax and Superannuation Laws Amendment (Employee Share Schemes) Bill 2015
That this bill be now read a third time.
That the provisions of that bill be referred immediately to the Rural, Regional Affairs and Transport Legislation Committee for inquiry and report by the first sitting day of 2016.
At the end of the amendment, add, "and:
(1) the Migration Amendment (Regional Processing Arrangements) Bill 2015, the bill be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 18 August 2015; and
(2) the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, the provisions of the bill be referred to the Legal and Constitutional Affairs Committee for inquiry and report by 19 August 2015.".
The Senate divided. [13:05]
(The Deputy President—Senator Marshall)
omit "Rural and Regional Affairs and Transport Legislation Committee", substitute "Economics Legislation Committee"; and
omit "the first sitting day of 2016", substitute "12 August 2015".
The Senate divided. [13:35]
(The Deputy President—Senator Marshall)
That the following matter be referred to the Economics References Committee for inquiry and report by 13 June 2016:
The economic and social impact of legislation, policies or Commonwealth guidelines, with particular reference to:
(a) the sale and use of tobacco, tobacco products, nicotine products, and e‑cigarettes, including any impact on the health, enjoyment and finances of users and non‑users;
(b) the sale and service of alcohol, including any impact on crime and the health, enjoyment and finances of drinkers and non‑drinkers;
(c) the sale and use of marijuana and associated products, including any impact on the health, enjoyment and finances of users and non‑users;
(d) bicycle helmet laws, including any impact on the health, enjoyment and finances of cyclists and non‑cyclists;
(e) the classification of publications, films and computer games; and
(f) any other measures introduced to restrict personal choice 'for the individual's own good'.
That the Federal Courts Legislation Amendment (Fees) Regulation 2015, as contained in Select Legislative Instrument 2015 No. 70 and made under the Federal Court of Australia Act 1976 , theFamily Law Act 1975 , and theFederal Circuit Court of Australia Act 1999 , be disallowed [F2015L00780
Thirteen sitting days remain, including today, to resolve the motion or the instrument will be deemed to have been disallowed.
The Senate divided. [13:45]
(The Deputy President—Senator Marshall)
That the following matter be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 3 December 2015:
Use of smoke alarms to prevent smoke and fire related deaths, with particular reference to:
(a) the incidence of smoke and fire related injuries and deaths and associated damage to property;
(b) the immediate and long term effects of such injuries and deaths;
(c) how the use, type and installation set-ups of smoke alarms could affect such injuries and deaths;
(d) what smoke alarms are in use in owner-occupied and rented dwellings and the installation set-ups;
(e) how the provisions of the Australian Building Code relating to smoke alarm type, installation and use can be improved;
(f) whether there are any other legislative or regulatory measures which would minimise such injuries and deaths; and
(g) any related matter.
AFAC and member agencies have lobbied hard for these changes and we have successfully collaborated with the Australian Building Codes Board to achieve this outcome.
That, in accordance with section 5 of the Parliament Act 1974 , the Senate approves the following proposals by the National Capital Authority for capital works within the Parliamentary Zone:
(a) John Gorton Building car park enhancement; and
(b) construction of a memorial to the victims of the MH17 disaster.
Civil Law and Justice (Omnibus Amendments) Bill 2015
That the following bill be introduced: A Bill for an Act to amend various Acts relating to law and justice, and for related purposes. Civil Law and Justice (Omnibus Amendments) Bill 2015 .
That this bill may proceed without formalities and be now read a first time.
That these bills be now read a second time.
CIVIL LAW AND JUSTICE (OMNIBUS AMENDMENTS) BILL 2015
Introduction
The Civil Law and Justice (Omnibus Amendments) Bill 2015 is an omnibus bill which will primarily amend the Administrative Appeals Tribunal Act 1975 , theBankruptcy Act 1966 , theEvidence Act 1995 , theFederal Circuit Court of Australia Act 1999 , theFederal Court of Australia Act 1976 and theInternational Arbitration Act 1974 .
The Bill will make minor and technical amendments to provide more clarity to the legislation, correct legislative oversights and amend obsolete provisions. The Bill will also make a number of consequential amendments. The combined effect of these amendments will improve the efficiency and operation of the justice system administered by the Attorney‑General's portfolio.
Summary of Bill
The Government aims to make all Commonwealth legislation coherent, readable and accessible to the widest possible audience. To this end, the Evidence Act will be amended to move the journalists' privilege provisions from Division 1A of Part 3.10 to new Division 1C of Part 3.10. This will provide consistency with the numbering of the NSW, ACT and Victorian Evidence Acts and is consistent with the Parliamentary Counsel's Committee Protocol on Drafting National Uniform Legislation, which provides that the numbering of uniform legislation should be consistent.
To provide clarity to legislation, the Federal Circuit Court of Australia Act will be amended to ensure that police officers and court sheriffs who are authorised by the Act, or a warrant issued under the Act or the Rules of Court, have the power to use such force as is reasonable and necessary in the circumstances to enter premises to execute an arrest warrant. Currently, there is uncertainty about whether reasonable force can be used to enter premises to execute an arrest warrant. This means that circumstances may arise where an arrest warrant is unable to be executed because an arrestee is inside premises. This can delay the Court process and burden the justice system.
Other amendments to the Federal Circuit Court of Australia Act will repeal an obsolete reference to improve the accuracy of the Act.
The Bill will also streamline and enhance the jury empanelment process under the Federal Court of Australia Act so that a person summoned for jury duty would not be summoned for a particular trial. Instead, they would be summoned to form part of a panel of potential jurors for a three month period. This will save the Court significant time and resources and ultimately lead to the more efficient resolution of disputes.
Other amendments to the Federal Court of Australia Act will ensure fairness in the pre‑trial process and will improve the clarity of the Act.
The Bill will also make minor and technical changes to the Administrative Appeals Tribunal Act, further supporting amalgamation of four key commonwealth merits review tribunals. The amendments will ensure all persons who are parties to a review receive notice that an application for review has been made. The Bill will clarify that the Tribunal may make orders that certain information is not to be disclosed to the parties. It will enable the President to authorise any member of the Tribunal to exercise existing powers to dismiss applications and ensure that in matters with more than one non-government party, other than the applicant, they may seek to have the application reinstated. The Bill will provide flexibility to the Tribunal to set out the manner for lodging or giving documents to the Tribunal, or to a person, in a regulation, in a practice direction, or both.
Amendments to the Bankruptcy Act will remove unnecessary requirements to notify the Official Receiver of certain decisions and will streamline some application for review processes in bankruptcies. The amendments also insert a 60-day time limit for applications to the court to review certain decisions. This will avoid undue delay in challenging such decisions and is consistent with other provisions of the Bankruptcy Act. Additionally, the amendments will clarify how confidentiality requirements in bankruptcies interact with statutory requirements for disclosure. The amendments will also remove a reference to a repealed provision.
The amendments to the International Arbitration Act will simplify provisions governing the enforcement of foreign arbitral awards in Australia and improve compliance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It will also apply confidentiality provisions to arbitral proceedings seated in Australia on an opt-out rather than opt-in basis. Finally, the amendments will make minor amendments in the interests of clearer laws.
Conclusion
In conclusion, the intention of this Bill is to make minor and technical amendments to a number of Acts in order to increase access to justice for all Australians by removing ambiguity in legislation and streamlining legal processes. The Bill will increase the currency, clarity and consistency of legislation administered by the Attorney-General's portfolio. Significantly, the amendments contained within the Bill will improve the justice system by making it easier for individuals to understand and comply with the law.
1) That a select committee, to be known as the Select Committee on Families, be established to inquire into and report by 13 October 2015 on the following matters:
(a) the short- and long-term impact and potential impact on Australian families and children of decisions of the Abbott Government taken since its election, including:
(i) proposed changes to Family Tax Benefits contained in the 2014-15 and 2015-16 budgets,
(ii) proposed changes to income support payments, including Newstart Allowance and Youth Allowance contained in the 2014-15 and 2015-16 budgets,
(iii) proposed changes to child care contained in the 2014-15 and 2015-16 budgets,
(iv) proposed changes to Parental Leave Pay contained in the 2015-16 Budget,
(v) the abolition of the Schoolkids Bonus and the Income Support Bonus, and
(vi) any other changes by the Abbott Government to payments and/or concessions made directly by the Commonwealth Department of Social Services to Australian families; and
No. 102—25 June 2015 2835
(b) the impact of these changes on particular groups of vulnerable families and children, including single parent families, single income families, families of people with disability, low-income families, Indigenous families and other vulnerable groups.
(2) That the committee consist of 5 senators, 2 nominated by the Leader of the Government in the Senate, 2 nominated by the Leader of the Opposition in the Senate, and 1 nominated by the Leader of the Australian Greens.
(3) That:
(a) participating members may be appointed to the committee on the nomination of the Leader of the Government in the Senate, the Leader of the Opposition in the Senate or any minority party or independent senator; and
(b) participating members may participate in hearings of evidence and deliberations of the committee, and have all the rights of members of the committee, but may not vote on any questions before the committee.
(4) That 3 members of the committee constitute a quorum of the committee.
(5) That the committee may proceed to the dispatch of business notwithstanding that not all members have been duly nominated and appointed and notwithstanding any vacancy.
(6) That the committee elect as chair one of the members nominated by the Leader of the Opposition in the Senate and as deputy chair the member nominated by the Leader of the Australian Greens.
(7) That the deputy chair shall act as chair when the chair is absent from a meeting of the committee or the position of chair is temporarily vacant.
(8) That, in the event of an equality of voting, the chair, or the deputy chair when acting as chair, have a casting vote.
(9) That the committee and any subcommittee have power to send for and examine persons and documents, to move from place to place, to sit in public or in private, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives, and have leave to report from time to time its proceedings and the evidence taken and such interim recommendations as it may deem fit.
(10) That the committee have power to appoint subcommittees consisting of 3 or more of its members, and to refer to any such subcommittee any of the matters which the committee is empowered to consider.
(11) That the committee be provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President.
(12) That the committee be empowered to print from day to day such papers and evidence as may be ordered by it, and a daily Hansard be published of such proceedings as take place in public.
The Senate divided. [13:59]
(The President—Senator Parry)
… stance and manner was provocative, bullying and intimidating. It is evident that he sought to belittle and humiliate …
There has been reporting in some quarters of the media regarding the sensitivity of documents used in briefing the Prime Minister yesterday. The Director-General of Security confirms the documents used in the briefing were not the subject of a national security classification. The documents were carefully edited and were unclassified. The content of the documents did not compromise national security.
… The documents were carefully edited and were unclassified. The content of the documents did not compromise national security.
… there have been no cuts to the flexible funds as announced in the budget.
The Government will achieve savings … over five years from 2014‑15 by rationalising and streamlining funding … including:
• the Health Portfolio Flexible Funds …
… the opposition would be kidding itself if it didn't recognise there were challenges in the budget and that savings needed to be found … There is no area that is going to be exempt …
There is no area that is going to be exempt … We have to look across the board.
Swearing on building sites is nothing new …
(1) If an objection is taken to a ruling or decision of the President, such objection must be taken at once and in writing, and a motion moved that the Senate dissent from the President’s ruling.
(2) Debate on that motion shall be adjourned to the next sitting day, unless the Senate decides on motion, without debate, that the question requires immediate determination.
That the Senate take note of the answers given by the Attorney-General (Senator Brandis) to questions without notice asked by Opposition senators today.
There has been reporting in some quarters of the media regarding the sensitivity of documents used in briefing the Prime Minister yesterday. The Director-General of Security confirms the documents used in the briefing were not the subject of a national security classification. The documents were carefully edited and were unclassified. The content of the documents did not compromise national security
That the Senate take note of the answer given by the Minister for Human Services (Senator Payne) to a question without notice asked by Senator Whish-Wilson today relating to investor-state dispute settlement clauses.
That the Senate take note of the report.
How beautiful is it that we can take the recognition of Australia's Aboriginal and Torres Strait Islander people and take Australian citizens to a referendum where a vote would be put to the people to eliminate discrimination for all people on the grounds of race, colour or ethnic or national origin.
During its inquiry, the committee heard the strong view that if constitutional recognition were to be pursued, substantive reform should be achieved. Many witnesses rejected the idea of mere recognition, considering it to be 'tokenistic'. The committee heard that for it to be supported, recognition had to be combined with a provision preventing discrimination on the basis of race.
That the Senate take note of the report.
Regulator of Medicinal Cannabis Bill 2014
That the time for the presentation of the final report of the Legal and Constitutional Affairs Legislation Committee be extended to 10 August 2015.
That the Senate take note of the report.
That the Senate take note of the report.
I am pleased to table this report of the Foreign Affairs, Defence and Trade References Committee into the use of unmanned platforms by the Australian Defence Force (ADF).
The inquiry was referred to the committee in October 2014. We received 25 submissions (two accepted as confidential) and held three public hearings in Canberra. Additional information was also received from the RAND Corporation and the Civil Aviation Safety Authority.
A broad range of interested individuals and organisations contributed to the inquiry including academics, researchers, civilian operators, defence industry companies, regulators and Defence force personnel. In particular, the committee was impressed by the considered approach of the ADF to the use of unmanned platforms.
Unmanned platforms, particularly unmanned aerial vehicles (UAVs), were described as well-suited to Australia's strategic and defence needs. The range and persistence of UAVs have provided new capabilities to military forces including the ADF. There are many opportunities for unmanned platforms to also add to the ADF's contribution disaster relief and civil support operations. While much of the evidence focused on UAVs, maritime unmanned platforms were highlighted as important in the future for mine countermeasures and antisubmarine warfare.
This inquiry has been well-timed. The RAAF's Heron UAV, which was successfully operated by the ADF in Afghanistan, will commence flying in Australian civilian airspace next month as part of joint exercise Talisman Sabre 2015. Major acquisitions such as the Triton UAV will also be considered as part of the Defence White Paper 2015 and Force Structure Review in the coming months.
Recognising that this is an evolving area of technology, the committee has been pragmatic in its recommendations to the Australian Government, the Department of Defence and the Australian Defence Force in relation to the use of unmanned platforms.
These recommendations include:
Finally, the committee has recommended that the ADF should acquire unmanned platforms which are capable of being armed-when the capability need arises. In the view of the committee armed unmanned platforms will enhance and extend the capacity of the ADF to perform its key role of protecting Australia and its national interests.
As an operator of armed unmanned platforms Australia will also have opportunities to contribute to the establishment of international practices and norms for this evolving technology. Accordingly, the committee has also recommended that the Australian Government make a clear policy statement in relation to the use of armed unmanned platforms. This policy statement would affirm that armed unmanned platforms will be used in accordance with Australia's international legal obligations, will only be operated by uniformed ADF personnel and outline appropriate transparency measures. Further, the committee has recommended that the ADF report on changes to its training and dissemination programs regarding the law of armed conflict and international humanitarian law when armed unmanned platforms are acquired.
The committee's report will facilitate the effective use of the unmanned platforms by the ADF. The committee thanks all those who contributed to the inquiry.
That the Senate take note of the report.
Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]
Social Services Legislation Amendment (Youth Employment and Other Measures) Bill 2015
That these bills may proceed without formalities, may be taken together and be now read a first time.
Social Services Legislation Amendment (Youth Employment and Other Measures) Bill 2015
Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]
The Senate divided. [16:42]
(The President—Senator Parry)
That this bill be now read a first time.
Social Services Legislation Amendment (Youth Employment and Other Measures) Bill 2015
That this bill be now read a second time.
Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]
That the second reading of this bill be set for the next day of sitting.
Migration Amendment (Regional Processing Arrangements) Bill 2015
The committee divided. [17:02]
(The Chairman—Senator Marshall)
(8) Page 4 (after line 5), at the end of the Bill (after proposed Schedule 2), add:
Schedule 3—Mandatory reporting of abuse
Migration Act 1958
1 After section 197BA
Insert:
197BAA Mandatory reporting of reportable assaults
(1) If a designated person believes on reasonable grounds that a person has experienced, or is experiencing, a reportable assault, the designated person must, as soon as practicable, notify the relevant authorities of:
(a) the alleged assault; and
(b) the grounds on which the person has formed the belief that the alleged assault occurred.
Offence
(2) A person commits an offence if:
(a) the person is required to make a notification under subsection (1); and
(b) the person fails to comply with the requirement.
Penalty: 60 penalty units.
Geographical jurisdiction
(3) Section 15.3 of the Criminal Code (extended geographical jurisdiction—category C) applies to an offence against subsection (2).
Interpretation
(4) In this section:
designated person means:
(a) an authorised officer; and
(b) a person appointed or employed by, or for the performance of services for:
(i) the Commonwealth, a State or a Territory; or
(ii) an authority of the Commonwealth, a State or a Territory; and
(c) a person employed by another person or body that is contracted by the Commonwealth, or an authority of the Commonwealth, to perform services in relation to an immigration detention facility.
relevant authority means:
(a) in any case—the Department and the Australian Federal Police; and
(b) if:
(i) the victim of an alleged reportable assault is a child; and
(ii) the alleged assault occurs in a State or Territory;
a relevant authority of the State or Territory that has functions relating to child safety; and
(c) if:
(i) the victim of an alleged reportable assault is a child; and
(ii) the alleged assault occurs in a foreign country;
a police force of the foreign country.
reportable assault means any of the following, to the extent that they occur, or allegedly occur, in an immigration detention facility:
(a) unlawful sexual contact;
(b) sexual harassment;
(c) unreasonable use of force;
(d) any other assault.
(2) Clause 2, page 2, at the end of the table, after proposed table item 3, add:
4. Schedule 3 Immediately after the commencement of Schedule 1 to the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Act 2015 .
The committee divided. [17:24]
(Temporary Chairman—Senator Seselja)
(3) Schedule 1, page 3 (before line 4), before item 1, insert:
1A Subsection 198AB(2)
Repeal the subsection, substitute:
(2) The only conditions for the exercise of the power under subsection (1) are:
(a) that the Minister thinks that it is in the national interest to designate the country to be a regional processing country; and
(b) that subsection (4A) has been complied with.
1B After subsection 198AB(4)
Insert:
(4A) The Minister must not designate a country to be a regional processing country unless the country has given Australia assurances, in writing, to the effect that the country will allow the following persons or bodies reasonable access to unauthorised maritime arrivals who have been taken to the regional processing country under section 198AD:
(a) the Australian Human Rights Commission;
(b) the Commonwealth Ombudsman;
(c) journalists (within the meaning of the Evidence Act 1995 ).
(4B) The assurances referred to in subsection (4A) need not be legally binding.
Note: However, the Minister must revoke a designation if the country does not comply with those assurances, see subsection (5A).
1C After subsection 198AB(5)
Insert:
(5A) If:
(a) the Minister designates a country under subsection (1); and
(b) the country has given written assurances under subsection (4A); and
(c) the Minister becomes aware that the country has not complied, or is not complying, with those assurances;
the Minister must revoke the designation.
(5) Schedule 1, page 4 (after line 5), at the end of the Schedule, add:
2 Application—written assurances relating to access
The amendments made to the Migration Act 1958 by items 1A, 1B and 1C apply in relation to the designation of a country as a regional processing centre on or after the day on which this Act receives the Royal Assent.
3 Application and transitional—regional processing countries designated before Royal Assent
(1) This item applies if the Minister designated a country to be a regional processing country under subsection 198AB(1) of the Migration Act 1958 before the day on which this Act receives the Royal Assent.
(2) As soon as practicable, but no later than 3 months after the day on which this Act receives the Royal Assent, the Minister must revoke the designation unless the country has given assurances, in writing, to the effect that the country will allow the following persons or bodies reasonable access to unauthorised maritime arrivals who have been taken to the regional processing country under section 198AD of that Act:
(a) the Australian Human Rights Commission;
(b) the Commonwealth Ombudsman;
(c) journalists (within the meaning of the Evidence Act 1995 ).
(3) If the assurances under subitem (2) are given, subsection 198AB(5A) of the Migration Act 1958 , as amended by this Schedule, applies in relation to the designation on and after the day the assurances are received, as if the designation were made under section 198AB of that Act as amended by this Act.
The committee divided. [17:38]
(The Temporary Chairman—Senator Seselja)
(4) Schedule 1, page 3 (after line 19), after subsection 198AHA(2), insert:
(2A) Despite subsection (2), the Commonwealth must not:
(a) take, or cause to be taken, any action; or
(b) make any payment, or cause any payment to be made; or
(c) do anything else that is incidental or conducive to the taking of such action or the making of such a payment;
to the extent that the action, payment or anything else will result in, or enable, the restraint over the liberty of an individual for longer than 3months.
(6) Schedule 1, page 4 (after line 5), at the end of the Schedule, add (after proposed item 3):
4 Application—detention beyond 3 months
Subsection 198AHA(2) of the Migration Act 1958 , as amended by this Act, applies in relation to an action, payment or anything else that is done by the Commonwealth on or after the day on which this Act receives the Royal Assent.
The committee divided. [17:52]
(The Temporary Chairman—Senator Seselja)
(1) Schedule 1, page 3 (lines 20 to 22), omit subsection 198AHA(3), substitute:
(3A) To avoid doubt, subsection (2):
(a) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action; and
(b) does not authorise or empower an individual acting on behalf of the Commonwealth to take, or cause to be taken, any action outside Australia that, if the action was taken in Australia, would contravene a law of the Commonwealth, a State or a Territory.
[limitation to lawful action]
… does not authorise or empower an individual … to take … any action outside Australia that, if the action was taken in Australia, would contravene a law …
… an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
… the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.
Does this bill provide any legal immunity for any person acting on behalf of the Commonwealth for any breach of Australian or state or territory law?
The intention of the bill is to provide clear statutory authority for the Commonwealth and its officers acting within the ambit of their powers or duties …
That this bill be now read a third time.
The Senate divided. [18:15]
(The President—Senator Parry)
Economics References Committee—
Appointed—
Substitute member: Senator Leyonhjelm to replace Senator McAllister for the committee’s inquiry into health legislation
Participating member: Senator McAllister
Environment and Communications References Committee—
Appointed—
Substitute member: Senator Ludlam to replace Senator Waters for the committee’s inquiry into Australia’s video game industry
Participating member: Senator Waters
Finance and Public Administration Legislation Committee—
Appointed—
Substitute member: Senator Waters to replace Senator Rice for the committee’s inquiry into the Australian Government Boards (Gender Balanced Representation) Bill 2015
Participating member: Senator Rice
Health—Select Committee—
Discharged—Di Natale
Appointed—
Senator Muir
Participating member: Senator Di Natale
Legal and Constitutional Affairs Legislation Committee—
Appointed—
Substitute member: Senator Urquhart to replace Senator Collins for the committee’s inquiry into the Regulator of Medicinal Cannabis Bill 2014
Participating member: Senator Collins
Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru—Select Committee—
Appointed—Participating members: Senators Di Natale, Ludlam, Milne, Rhiannon, Rice, Siewert, Waters, Whish-Wilson and Wright
Rural and Regional Affairs and Transport Legislation Committee—
Appointed—
Substitute member: Senator Rhiannon to replace Senator Siewert for the committee’s inquiry into the Voice for Animals (Independent Office of Animal Welfare) Bill 2015
Participating member: Senator Siewert
Civil Law and Justice Legislation Amendment Bill 2014
That the Senate, at its rising, adjourn until Monday 10 August 2015 at 10 am or such other time as may be fixed by the President or, in the event of the President being unavailable, by the Deputy President, and that the time of meeting so determined shall be notified to each senator.
That leave of absence be granted to every member of the Senate from the end of the sitting day to the day on which the Senate next meets.