The PRESIDENT (Senator the Hon. Stephen Parry) took the chair at 09:30, read prayers and made an acknowledgement of country.
That—
(a) consideration of bills under standing order 57(1) (d) (i) relating to private senators' bills shall not be proceeded with and that government business shall have precedence over all other business for 2 hours and 20 minutes;
(b) when consideration of general business concludes, government business shall be called on and considered till 6 pm; and
(c) divisions may take place after 4.30 pm.
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016
… to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.
… satisfied to a high degree of probability on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community.
… satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.
Post-sentence preventive detention … orders straddle the civil-criminal divide. While they are connected to a criminal process, in that an individual may be detained … upon the completion of a term of imprisonment, … [it is] at a point in time after that which is traditionally accepted in the criminal justice system. The state may thereby impose significant restrictions upon an individual’s liberty while ‘side-stepping’ the enhanced procedural and evidentiary safeguards that attach to the criminal justice system.
… captures within the definition of a ‘serious Part 5.3 offence’ not only the commission of a terrorist act but also a broad range of preparatory conduct. This includes, in the first place, the five preparatory terrorism offences in Division 101 of the Criminal Code . These go beyond the traditional inchoate offences by criminalising activities which are merely preparatory to the commission of a terrorist act.
… For example, it is an offence to attempt to possess a thing connected with a terrorist act or to conspire to do an act in preparation for a terrorist act. These offences ‘render individuals liable to very serious penalties even before there is clear criminal intent’ to engage in a terrorist act.
By contrast, the scope of the serious sex offence and serious violence offence post-sentence detention regimes have been carefully confined to circumstances where a particularly serious offence has actually been committed or where a person has attempted or conspired to do so.
For any system of preventative detention to be justifiable, it must be possible to make robust predictions about the likelihood of future risk.
At present, there is no way to accurately assess the level of risk that a convicted terrorist will reoffend. This is because no validated terrorism-specific risk assessment tools currently exist.
Terrorism poses a grave threat to Australia and its people. It is important to manage terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentences. It is critical that we work together to implement this scheme as early as possible.
The highest priority for Commonwealth, State and Territory Governments is to ensure the safety of the community. We also recognise the importance of balancing that with the protection of basic human rights
Considerable work will be required … to implement the CDO regime … The scope of this work includes risk assessment tools, rehabilitation programs, housing arrangements and oversight mechanisms.
The Senate divided. [11.07]
(The Acting Deputy President—Senator Marshall)
(1) Schedule 1, page 4 (before line 4), before item 1, insert:
1A At the end of section 72.3 of the Criminal Code
Add:
Note: A court that is sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders (see section 105A.23).
1B At the end of section 100.1 of the Criminal Code
Add:
Note: A court that is sentencing a person who has been convicted of an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment, must warn the person about continuing detention orders (see section 105A.23).
1C Subsection 104.2(5) of the Criminal Code
Repeal the subsection, substitute:
(5) To avoid doubt, a senior AFP member may seek the Attorney‑General's consent to request an interim control order in relation to a person even if:
(a) such a request has previously been made in relation to the person; or
(b) the person is detained in custody.
Note: An interim control order in relation to a person who is detained in custody does not begin to be in force until the person is released from custody (see paragraph 104.5(1) (d)).
1D Paragraph 104.5(1 ) ( d) of the Criminal Code
Repeal the paragraph, substitute:
(d) state that the order does not begin to be in force until:
(i) it is served personally on the person; and
(ii) if the person is detained in custody—the person is released from custody; and
1E After paragraph 104.5(1B ) ( a) of the Criminal Code
Insert:
(aa) if the person to whom the order relates is detained in custody—any other matter relating to the person's detention that the court considers relevant; and
1F After subsection 104.5(1B) of the Criminal Code
Insert:
(1C) To avoid doubt, if the person is detained in custody, the person has a right to attend court on the day specified for the purposes of paragraph (1) (e).
1G After subsection 104.5(2) of the Criminal Code
Insert:
(2AA) To avoid doubt, if a control order is in force in relation to a person, the control order does not cease to be in force merely because the person is detained in custody.
Note: However, if a person is detained in custody, and a control order is made in relation to the person, the control order does not begin to be in force until the person is released from custody (see paragraph (1) (d)).
1H At the end of subsections 104.10(3) and 104.12(1) of the Criminal Code
Add:
Note: For the personal service of documents on a person detained in custody, see section 104.28B.
1J After subsection 104.12(3) of the Criminal Code
Insert:
(3A) Paragraphs (1) (b) and (c) do not apply if the person in relation to whom the interim control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.
1K At the end of subsections 104.12A(2) and (4) and 104.17(1) of the Criminal Code
Add:
Note: For the personal service of documents on a person detained in custody, see section 104.28B.
1L After subsection 104.17(2) of the Criminal Code
Insert:
(2A) Paragraphs (1) (b) and (c) do not apply if the person in relation to whom the interim control order has been declared void, revoked or confirmed is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.
1M At the end of subsections 104.20(3) and 104.26(1) of the Criminal Code
Add:
Note: For the personal service of documents on a person detained in custody, see section 104.28B.
1N Subsection 104.26(3) of the Criminal Code
Omit "interim control order", substitute "control order".
1P After subsection 104.26(3) of the Criminal Code
Insert:
(3A) Paragraphs (1) (b), (c) and (d) do not apply if the person in relation to whom the control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.
1Q After section 104.28A of the Criminal Code
Insert:
104.28B Giving documents to persons detained in custody
(1) A document that is required under this Division to be given to a person (the prisoner ) personally who is detained in custody at a prison is taken to have been given to the prisoner at the time referred to in paragraph (3) (b) if the document is given to the following person (therecipient ):
(a) the legal representative of the prisoner;
(b) if the prisoner does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.
Note: The obligation to inform the prisoner of the matters referred to in paragraphs 104.12(1) (b), 104.17(1) (b) and 104.26(1) (b) and (c) might not apply if it is impracticable for an AFP member to comply with the obligation (see subsections 104.12(3A), 104.17(2A) and 104.26(3A)).
(2) The recipient must, as soon as reasonably practicable, give the document to the prisoner personally.
(3) Once the recipient has done so, he or she must notify the Court and the person who gave the recipient the document, in writing:
(a) that the document has been given to the prisoner; and
(b) of the day that document was so given.
(2) Schedule 1, item 1, page 4 (before line 15), before the definition of continuing detention order in section 105A.2, insert:
Commonwealth law enforcement officer has the meaning given by Part 7.8.
(3) Schedule 1, item 1, page 4 (line 21), omit "order.", substitute "order; or".
(4) Schedule 1, item 1, page 4 (after line 21), at the end of the definition of continuing detention order decision in section 105A.2, add:
(c) a decision made under section 105A.15A (when a terrorist offender is unable to engage a legal representative).
(5) Schedule 1, item 1, page 4 (after line 23), after the definition of continuing detention order proceeding in section 105A.2, insert:
intelligence or security officer has the meaning given by Part 10.6.
(6) Schedule 1, item 1, page 5 (lines 25 and 26), omit subparagraph 105A.3(1) (a) (ii).
(7) Schedule 1, item 1, page 5 (line 29), omit "recruitment); and", substitute "recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or".
(8) Schedule 1, item 1, page 5 (after line 29), at the end of paragraph 105A.3(1) (a), add:
(v) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 , except an offence against paragraph 9(1) (b) or (c) of that Act (publishing recruitment advertisements); and
(9) Schedule 1, item 1, page 6 (after line 10), at the end of subsection 105A.3(2), add:
Note 3: The offender may not be eligible to be released on bail or parole while the continuing detention order is in force (see section 105A.24).
(10) Schedule 1, item 1, page 7 (line 7), omit "6", substitute "12".
(11) Schedule 1, item 1, page 7 (after line 14), after subsection 105A.5(2), insert:
(2A) The Attorney‑General must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be made.
(12) Schedule 1, item 1, page 7 (after line 19), after paragraph 105A.5(3) (a), insert:
(aa) include:
(i) a copy of any material in the possession of the applicant; and
(ii) a statement of any facts that the applicant is aware of;
that would reasonably be regarded as supporting a finding that the order should not be made; and
(13) Schedule 1, item 1, page 7 (line 32), omit "do any of the following", substitute "take any of the following actions".
(14) Schedule 1, item 1, page 8 (line 5), omit paragraph 105A.5(5) (c).
(15) Schedule 1, item 1, page 8 (after line 7), at the end of section 105A.5, add:
(6) However, the applicant must give the offender personally a complete copy of the application:
(a) if the Attorney‑General later decides not to take any of the actions referred to in any of paragraphs (5) (a) to (d), or after the Attorney‑General takes such action the Court makes an order—within 2 business days of the Attorney‑General's decision or the order (as the case requires); and
(b) in any case—within a reasonable period before the preliminary hearing referred to in section 105A.6.
Note: For giving the offender documents, see section 105A.15.
(16) Schedule 1, item 1, page 8 (lines 15 to 18), omit subsection 105A.6(3), substitute:
(3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a continuing detention order in relation to the offender.
(3A) The Attorney‑General, the offender, or a legal representative of the Attorney‑General or offender, may nominate one or more relevant experts for the purposes of subsection (3).
(17) Schedule 1, item 1, page 8 (after line 28), after subsection 105A.6(5), insert:
(5A) None of the following is admissible in evidence against the offender in criminal or civil proceedings:
(a) the answer to a question or information given at the assessment;
(b) answering a question or giving information at the assessment.
(18) Schedule 1, item 1, page 8 (lines 29 and 30), omit "subsection (5) and paragraph 105A.8(b)", substitute "subsections (5) and (5A) and paragraph 105A.8(1) (b)".
(19) Schedule 1, item 1, page 8 (line 32), omit "must include", substitute "may include any one or more of".
(20) Schedule 1, item 1, page 9 (after line 21), at the end of section 105A.6, add:
Other relevant experts
(8) This section does not prevent the Attorney‑General, the offender, or a legal representative of the Attorney‑General or offender, from calling his or her own relevant expert as a witness in the proceeding.
(21) Schedule 1, item 1, page 9 (line 37), omit "Note", substitute "Note 1".
(22) Schedule 1, item 1, page 9 (after line 37), at the end of subsection 105A.7(1), add:
Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1) (b) of this section (see subsection 105A.8(3) and section 105A.13).
(23) Schedule 1, item 1, page 10 (line 18), before "In deciding", insert "(1)".
(24) Schedule 1, item 1, page 11 (line 8), after "any offence", insert "referred to in paragraph 105A.3(1) (a)".
(25) Schedule 1, item 1, page 11 (lines 11 and 12), omit paragraph 105A.8(g), substitute:
(g) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1) (a);
(26) Schedule 1, item 1, page 11 (lines 13 and 14), omit "the relevant sentence of imprisonment", substitute "any sentence for any offence referred to in paragraph 105A.3(1) (a)".
(27) Schedule 1, item 1, page 11 (line 16), omit "offence;", substitute "offence.".
(28) Schedule 1, item 1, page 11 (line 17), omit paragraph 105A.8(j).
(29) Schedule 1, item 1, page 11 (after line 17), at the end of section 105A.8, add:
(2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.
(3) To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.
(30) Schedule 1, item 1, page 11 (after line 23), after subsection 105A.9(1), insert:
(1A) On receiving the application for the interim detention order, the Court must hold a hearing to determine whether to make the order.
(31) Schedule 1, item 1, page 11 (lines 34 to 37), omit paragraph 105A.9(2) (b), substitute:
(b) the Court is satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the offender.
(32) Schedule 1, item 1, page 12 (lines 21 to 29), omit subsection 105A.10(1), substitute:
(1A) The Attorney‑General, or a legal representative of the Attorney‑General, must, before the end of the period referred to in subsection (1B), apply to a Supreme Court of a State or Territory for a review of a continuing detention order that is in force in relation to a terrorist offender.
Note: For when an application is not required to be made, see subsection (2).
(1B) The application must be made before the end of the period of 12 months after:
(a) the order began to be in force; or
(b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory—the most recent review ended.
(1) On receiving the application, the Court must begin the review of the order before the end of that period.
Note: For the process for reviewing a continuing detention order, see section 105A.12.
(33) Schedule 1, item 1, page 12 (line 30), omit "However, a review is", substitute "Despite subsection (1), an application for a review, and a review, are".
(34) Schedule 1, item 1, page 13 (line 1), omit "The review is to be conducted by", substitute "The application must be made to".
(35) Schedule 1, item 1, page 13 (after line 2), at the end of section 105A.10, add:
(4) If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (1B).
(36) Schedule 1, item 1, page 13 (before line 28), before subsection 105A.12(3), insert:
Relevant experts
(37) Schedule 1, item 1, page 13 (after line 30), after subsection 105A.12(3), insert:
(3A) The Attorney‑General, the offender, or a legal representative of the Attorney‑General or offender, may nominate one or more relevant experts for the purposes of subsection (3).
(3B) Subsection (3) does not prevent the Attorney‑General, the offender, or a legal representative of the Attorney‑General or offender, from calling his or her own relevant expert as a witness in the review.
(38) Schedule 1, item 1, page 14 (line 12), omit "Note", substitute "Note 1".
(39) Schedule 1, item 1, page 14 (after line 12), at the end of subsection 105A.12(4), add:
Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (4) (a) of this section (see subsection 105A.8(3) and section 105A.13).
(40) Schedule 1, item 1, page 14 (before line 15), before subsection 105A.12(6) (after the heading), insert:
(5A) The Attorney‑General must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.
(41) Schedule 1, item 1, page 14 (after line 16), after subsection 105A.12(6), insert:
(6A) The Attorney‑General, or the legal representative of the Attorney‑General, must present to the Court:
(a) a copy of any material in the possession of the Attorney‑General or legal representative; and
(b) a statement of any facts that the Attorney‑General or legal representative is aware of;
that would reasonably be regarded as supporting a finding that the order should not be affirmed.
(42) Schedule 1, item 1, page 15 (lines 1 to 4), omit subsection 105A.13(2), substitute:
(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:
(a) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole for any offence; and
(b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence.
(43) Schedule 1, item 1, page 15 (lines 11 to 15), omit subsection 105A.15(1), substitute:
(1) A document that is required to be given under this Division to a terrorist offender who is detained in a prison is taken to have been given to the offender at the time referred to in paragraph (3) (b) if the document is given to the following person (the recipient ):
(a) the legal representative of the offender;
(b) if the offender does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.
(44) Schedule 1, item 1, page 15 (line 16), omit "chief executive officer", substitute "recipient".
(45) Schedule 1, item 1, page 15 (line 18), omit "chief executive officer", substitute "recipient".
(46) Schedule 1, item 1, page 15 (line 19), omit "officer", substitute "recipient".
(47) Schedule 1, item 1, page 15 (after line 22), after section 105A.15, insert:
105A.15A When a terrorist offender is unable to engage a legal representative
(1) This section applies if:
(a) a continuing detention order proceeding relating to a terrorist offender is before a Supreme Court of a State or Territory; and
(b) the offender, due to circumstances beyond the offender's control, is unable to engage a legal representative in relation to the proceeding.
(2) The Court may make either or both of the following orders:
(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;
(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding.
(3) The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:
(a) whether circumstances are beyond the offender's control;
(b) reasonable costs and expenses of the offender's legal representation for the proceeding.
(4) This section does not limit any other power of the Court.
(48) Schedule 1, item 1, page 17 (line 5), omit "force; and", substitute "force;".
(49) Schedule 1, item 1, page 17 (after line 5), at the end of paragraph 105A.18(1) (a), add:
(v) an appeal against a decision under section 105A.15A to stay a continuing detention order proceeding in relation to a terrorist offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and
(50) Schedule 1, item 1, page 19 (line 14), after "continuing detention order", insert "or interim detention order".
(51) Schedule 1, item 1, page 19 (lines 16 and 17), after "continuing detention order", insert "or interim detention order".
(52) Schedule 1, item 1, page 19 (line 32), after "made", insert "by terrorist offenders".
(53) Schedule 1, item 1, page 20 (after line 6), at the end of Subdivision F, add:
(1) A court that is sentencing a person who is convicted of an offence referred to in paragraph 105A.3(1) (a) must warn the person that an application may be made under this Division for a continuing detention order requiring the person to be detained in a prison after the end of the person's sentence for the offence.
(2) A failure by the court to comply with subsection (1) does not:
(a) affect the validity of the sentence for the offence; or
(b) prevent an application from being made under this Division in relation to the person.
105A.24 Effect of continuing detention orders on bail or parole laws
(1) A person in relation to whom a continuing detention order or an interim detention order is in force is not eligible to be released on bail or parole until the order ceases to be in force.
(2) Subsection (1) does not prevent the person from applying, before the order ceases to be in force, to be released on bail if the person is charged with an offence while the order is in force.
Note: Although the person can apply to be released on bail, as a result of subsection (1), the person cannot be released on bail until the continuing detention order ceases to be in force.
(3) This section applies despite any law of the Commonwealth, a State or a Territory.
105A.25 Sunset provision
A continuing detention order, and an interim detention order, cannot be applied for, or made, after the end of 10 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.
(54) Schedule 1, item 2, page 20 (before line 12), section 106.8 (after the heading), insert:
(1) The amendments of section 104.2 made by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 apply in relation to any control order, whether made before or after this section commences.
(2) The amendments of subsections 104.5(1) and (1B) and section 104.12 made by that Act apply in relation to a control order if the request for the control order is made after this section commences.
(3) Subsections 104.5(1C) and (2AA), as inserted by that Act, apply in relation to any control order, whether made before or after this section commences.
(4) The amendments of section 104.17 made by that Act apply in relation to any interim control order that is declared to be void, revoked or confirmed after this section commences.
(5) The amendments of section 104.26 made by that Act apply in relation to any control order varied after this section commences.
(6) Section 104.28B, as inserted by that Act, applies in relation to the giving of documents after this section commences.
(55) Schedule 1, item 2, page 20 (line 12), omit "Division 105A, as inserted by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 ,", substitute "(7) Division 105A (except section 105A.23), as inserted by that Act,".
(56) Schedule 1, item 2, page 20 (after line 20), at the end of section 106.8, add:
(8) Section 105A.23, as inserted by that Act, applies in relation to any sentence imposed on a person after this section commences, whether the offence in relation to which the sentence is imposed was committed before or after that commencement.
(57) Schedule 1, page 20 (after line 20), at the end of the Schedule, add:
3 At the end of section 117.1 of the Criminal Code
Add:
Note: A court that is sentencing a person who has been convicted of an offence against this Part (except subsection 119.7(2) or (3)) must warn the person about continuing detention orders (see section 105A.23).
(58) Schedule 2, page 21 (before line 4), before item 1, insert:
Crimes Act 1914
1A Paragraph 3ZQU(1 ) ( e)
Omit "or 105", substitute ", 105 or 105A".
1B Paragraph 3ZZEA(1 ) ( d)
Omit "or 105", substitute ", 105 or 105A".
1C At the end of subsection 16F(1)
Add:
Note: A court that is sentencing a person who has been convicted of an offence referred to in paragraph 105A.3(1) (a) of the Criminal Code must warn the person about continuing detention orders (see section 105A.23 of the Code).
Independent National Security Legislation Monitor Act 2010
1D After subparagraph 6(1 ) ( a ) ( i)
Insert:
(ia) without limiting subparagraph (i), Division 105A of the Criminal Code and any other provision of that Code as far as it relates to that Division; and
1E After subsection 6(1B)
Insert:
(1C) The Independent National Security Legislation Monitor must complete the review under subparagraph (1) (a) (ia) before the end of 5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.
Intelligence Services Act 2001
1F After paragraph 29(1 ) ( ca)
Insert:
(cb) without limiting paragraphs (baa) to (bac),to review, before the end of 6 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent, the operation, effectiveness and implications of Division 105A of theCriminal Code and any other provision of that Code as far as it relates to that Division;
… after having regard to matters in accordance with section 105A.8—
the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community …
(c) the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.
… the safety and protection of the community—
… any report, relating to the extent to which the offender can reasonably and practicably be managed in the community … prepared by—
… any treatment or rehabilitation programs—
… the level of the offender's compliance with … obligations to which he or she has been subject while—
… subject to a continuing detention order or interim detention order;
… the offender's criminal history …
… the views of the sentencing court at the time—
That these bills be now read a third time.
Register of Foreign Ownership of Agricultural Land Amendment (Water) Bill 2016
SELECTION OF BILLS COMMITTEE
REPORT NO. 10 OF 2016
1. The committee met in private session on Wednesday, 30 November 2016 at 7.31 pm.
2. The committee resolved to recommend—That—
(a) contingent upon its introduction in the House of Representatives, the provisions of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 bereferred immediately to the Economics Legislation Committee for inquiry and report by 16 February 2017 (see appendix 1 for a statement of reasons for referral);
(b) the provisions of the Corporations Amendment (Crowd-sourced Funding) Bill 2016 bereferred immediately to the Economics Legislation Committee for inquiry and report by 13 February 2017 (see appendix 2 for a statement of reasons for referral);
(c) the provisions of the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016 bereferred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 16 February 2017 (see appendix 3 for a statement of reasons for referral);
(d) the provisions of the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 bereferred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 February 2017 (see appendix 4 for a statement of reasons for referral); and
(e) the provisions of the Veterans' Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 bereferred immediately to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 14 February 2017 (see appendix 5 for a statement of reasons for referral).
3. The committee resolved to recommend—That the following bills not be referred to committees:
The committee recommends accordingly.
4. The committee deferred consideration of the following bills to its next meeting:
(David Bushby)
Chair
1 December 2016
Proposal to refer a bill to a committee:
Name of bill:
Reasons for referral/principal issues for consideration:
Possible submissions or evidence from:
Committee to which bill is to be referred:
Possible hearing date(s):
Possible reporting date:
Senator Rachel Siewert
APPENDIX 2
Proposal to refer a bill to a committee:
Name of bill:
Reasons for referral/principal issues for consideration:
Possible submissions or evidence from:
Committee to which bill is to be referred:
Possible hearing date(s):
To be determined by the committee
Possible reporting date:
Senator Anne Urquhart
APPENDIX 3
Proposal to refer a bill to a committee:
Name of bill:
Reasons for referral/principal issues for consideration:
This is a large omnibus bill which updates 16 different pieces of Commonwealth legislation across 11 Schedules.
Given the complexity and volume of amendments to Commonwealth legislation contained in the Bill, it would be appropriate to refer the Bill to committee for careful consideration.
Possible submissions or evidence from:
Law Council of Australia, the Australian Federal Police, the Australian Federal Police Association, State, Territory and International Bar Associations, Anti-Slavery Australia, the Uniting Church, Australian Catholic Religious Against Trafficking in Humans, World Vision, the Red Cross and other advocacy organisations.
Committee to which bill is to be referred:
Possible hearing date(s):
Possible reporting date:
16 February 2017
Senator Anne Urquhart
APPENDIX 4
Proposal to refer a bill to a committee:
Name of bill:
Reasons for referral/principal issues for consideration:
The complex nature of the Migration Act and the impact any change may have on people seeking a visa, industry bodies, Australian business and residents warrants further consultation and investigation.
Possible submissions or evidence from:
Committee to which bill is to be referred:
Senate Legal and Constitutional Affairs Legislation Committee
Possible hearing date(s):
To be determined by Committee.
Possible reporting date:
14 February 2016
Senator Anne Urquhart
APPENDIX 5
Proposal to refer a bill to a committee:
Name of bill:
Reasons for referral/principal issues for consideration:
Possible submissions or evidence from:
Committee to which bill is to be referred:
Possible hearing date(s):
Possible reporting date:
14 February 2017
Senator Anne Urquhart
That the report be adopted.
That the order of general business for consideration today be as follows:
(a) general business notice of motion no. 160 standing in the name of Senator Hinch relating to children in care; and
(b) orders of the day relating to documents.
That, in accordance with section 5 of the Parliament Act 1974 , the Senate approves the proposal for work in the Parliamentary Zone, namely: Parliament House Security Upgrade Works – Perimeter Security Enhancements.
The Senate divided. [12:15]
(The President—Senator Parry)
That the following matter be referred to the Economics References Committee for inquiry and report by 22 March 2017:
The impact of non-payment of the Superannuation Guarantee (SG), with particular reference to:
(a) the economic impact on:
(i) workers, their superannuation balances, and retirement incomes,
(ii) competitive neutrality among employers, and
(iii) government revenue, including forgone superannuation contributions, earnings taxes, and SG charge penalties, over both the forward estimates and the medium term;
(b) the accuracy and adequacy of:
(i) information and data collected by the Australian Taxation Office (ATO), the Australian Prudential Regulation Authority and the Australian Securities and Investments Commission on SG non-payment,
(ii) information and data collected by other agencies, such as the Fair Work Ombudsman, on SG non-payment, and
(iii) any legislative, privacy, or other reporting barriers preventing the collection of accurate information and data on SG non-payment;
(c) the role and effectiveness of:
(i) the ATO monitoring, investigations, and recovery of unpaid SG, including technology and data collection to predict and prevent non-payment,
(ii) resources and coordination between government agencies and other stakeholders to prevent non-payment,
(iii) legislation and penalties to ensure timely and fair payment of SG,
(iv) superannuation funds in detecting and recovering unpaid SG,
(v) employment and contracting arrangements, including remedies to recoup SG in the event of company insolvency and collapse, including last resort employee entitlement schemes, and
(vi) measures to improve compliance with the payment of SG;
(d) the appropriateness of responses by:
(i) the ATO receiving complaints and 'tip-offs' about SG non-payment,
(ii) members of Parliament asked to assist and support constituents who have been impacted by SG non-payment, and
(iii) accountants, auditors, creditors and financial institutions who become aware of SG non-payment; and
(e) any other related matters.
That the following matter be referred to the Community Affairs References Committee for inquiry and report by 10 May 2017:
Inquiry into the complaints mechanism administered under the Health Practitioner Regulation National Law, with particular reference to:
(a) the implementation of the current complaints system under the National Law, including the role of the Australian Health Practitioner Regulation Authority (AHPRA) and the National Boards;
(b) whether the existing regulatory framework, established by the National Law, contains adequate provision for addressing medical complaints;
(c) the roles of AHPRA, the National Boards and professional organisations, such as the various Colleges, in addressing concerns within the medical profession with the complaints process;
(d) the adequacy of the relationships between those bodies responsible for handling complaints;
(e) whether amendments to the National Law, in relation to the complaints handling process, are required; and
(f) other improvements that could assist in a fairer, quicker and more effective medical complaints process.
That—
(1) The Senate notes in relation to the 'Jedi Council' sex scandal:
(a) in a secret New South Wales Police report, prepared by Detective Sergeant Mark Carter, Strike Force CIVET found that the actions of a number of Australian Defence Force Investigative Service (ADFIS) staff and other sections of the Australian Defence Force (ADF) to deliberately lie, withhold evidence, fabricate information... [mean] the conduct of future investigations [by NSW police] into and with the ADF as [a] whole and ADFIS as a body must be viewed with caution and concern;
(b) the personal information of many innocent ADF members, including retired Lieutenant Colonel Dubsky, was provided to the media, in breach of their right to privacy and other fundamental human rights, and without regard for their mental and physical wellbeing;
(c) the original ADFIS investigation into the alleged actions of the 'Jedi Council' was limited and was conducted without direct contact with any alleged members of the 'Jedi Council';
(d) the ADFIS investigation was limited in scope and did not include appropriate follow-up regarding some of the allegations;
(e) the ADFIS investigation did not include interviews with alleged victims of material created or distributed by the 'Jedi Council'; and
(f) a number of the conclusions reached by the ADFIS were not consistent with the evidence presented to the ADFIS as part of the investigation.
(2) The matters raised by New South Wales Police Strike Force CIVET, and other related matters, be referred to the Foreign Affairs, Defence and Trade References Committee for inquiry and report by 7 February 2017.
That—
(a) the Senate notes that:
(i) confidence and trust in the financial services industry has been shaken by ongoing revelations of scandals, which have resulted in tens of thousands of Australians being ripped off, including:
(A) retirees who have had their retirement savings gutted,
(B) families who have been rorted out of hundreds of thousands of dollars,
(C) small business owners who have lost everything, and
(D) life insurance policy holders who have been denied justice,
(ii) it is clear from the breadth and scope of the allegations that the problems in this industry go beyond any one bank or type of financial institution,
(iii) the Australian Labor Party, the Australian Greens, crossbench, Liberal and Nationals parliamentarians have supported a thorough investigation of the culture and practices within the financial services industry through a Royal Commission, which is the only forum with the coercive powers and broad jurisdiction necessary to properly perform this investigation,
(iv) Australia has one of the strongest banking systems in the world, but Australians must have confidence in their banks and financial institutions, making it necessary to sweep away doubt and uncover and deal with unethical behaviour that compromises that confidence, and
(v) the case for a Royal Commission into misconduct in the banking and financial services industry has only become stronger over time;
(b) the Senate calls on the Government to request His Excellency the Governor-General of the Commonwealth of Australia issue Letters Patent to establish a Royal Commission to inquire into misconduct in the banking and financial services industry, including their agents and managed investment schemes; and
(c) this resolution be communicated to the House of Representatives for concurrence.
That the Senate—
(a) notes that:
(i) 1 December 2016 is World AIDS Day, which is held every year to raise awareness about the issues surrounding HIV and AIDS, and is a day for people to show their support for people living with HIV and to remember those who have died,
(ii) the aim of World AIDS Day 2016 is to encourage Australians to educate themselves and others about HIV, to take action to reduce the transmission of HIV by promoting prevention strategies and to ensure that people living with HIV can participate fully in the life of the community, free from stigma and discrimination,
(iii) while significant advancements in treatment and diagnosis have been made, 30 years after the discovery of the HIV virus the HIV epidemic remains one of the greatest public health challenges facing Australia, its region and the world, and
(iv) Australia's response to HIV and AIDS has always been driven by strong multi-party support and rigorously based on science and evidence;
(b) reaffirms the united support for the Seventh National HIV Strategy in setting the direction for Australia to reverse the increasing trend of new HIV diagnoses and working towards the virtual elimination of HIV transmission by 2020;
(c) welcomes the commitment by all state and territory Governments to work with the Australian Government in the development of the Eighth National HIV Strategy; and
(d) welcomes the pledge by the Australian Government for an additional $220 million to the Global Fund to Fight AIDS, Tuberculosis and Malaria at the Fifth Replenishment meeting in Montreal, Canada.
That the Senate—
(a) congratulates the Honourable Justice Kiefel on her appointment as Chief Justice of the High Court of Australia;
(b) notes that:
(i) Justice Kiefel became the first woman in Queensland to be appointed Queen's Counsel in 1987,
(ii) Justice Kiefel is the first female appointed to the highest judicial office in Australia,
(iii) Justice Kiefel's legal career serves as an inspiration to aspiring women lawyers across Australia,
(iv) the gender profile of the legal profession is becoming more gender balanced with female solicitors making up 48.5 per cent of the profession on the most recent figures from the National Profile of Solicitors 2014,
(v) more females are entering the profession with an increase of 19.3 per cent on previous 2011 figures,
(vi) whilst women are entering the profession in greater numbers than men, the gender profile of the profession overall remains weighted towards male lawyers, particularly in senior positions, and
(vii) data from the Australian Bureau of Statistics, from August 2015, reveals that women are under-represented in the judiciary with 65.4 per cent of Commonwealth judges and magistrates being men; and
(c) calls on the Government to continue to develop strategies to promote women in leadership roles, including the legal profession.
(d) the Senate acknowledges the exemplary work over the past eight years of Chief Justice French, who leaves a legacy of important contributions to the law, notably his commitment to Indigenous justice.
That the Senate—
(a) recognises the achievement of the Murray-Darling Basin Plan as a historically unprecedented way forward to deliver a healthy, working river system;
(b) notes the importance of the Basin Plan in supporting the economic and social needs of river communities, and maintaining the health of important ecosystems requiring water flows; and
(c) condemns attempts to undermine the Basin Plan for political gain.
(a) notes that:
(i) Regional Forest Agreements (RFAs) have been in place as 20-year agreements, designed to manage the conservation and forestry industry considerations for key areas of Australia's public native forests,
(ii) the first Regional Forest Agreement (RFA), the East Gippsland RFA, expires in February 2017,
(iii) the existing RFAs are now out of date and need to be reconsidered to support conservation goals and the impacts and mitigation of climate change – RFAs have exemptions from the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act), and these exemptions need to be reviewed in light of key threatened and endangered species living within the designated areas,
(iv) the required RFA reviews have not been completed, or not completed on time, for the RFAs in place – the review process was designed to improve the operation of RFAs but significant delays and deficiencies in reviews have hampered such improvements, and
(v) during the period since the establishment of the RFAs, the context and conditions informing each has changed significantly – these factors include climate change, bushfire, and markets for wood products; and
(b) calls on the Government to adopt forest management policies which ensure that the social, environmental and economic values of forests are effectively protected and managed for future generations.
(1) That a joint select committee, to be known as the Joint Select Committee on Government Procurement, be established to inquire and report by 31 May 2017 on the following matters:
(a) the Commonwealth procurement framework;
(b) consideration of the Commonwealth Procurement Rules to come into force on 1 March 2017 (CPR17) and, in particular:
(i) clauses 10.10, 10.18. 10.30, 10.31 and 10.37 (the 'new clauses'),
(ii) how the new clauses can most effectively be implemented,
(iii) weighting and other mechanisms that should apply to any Commonwealth procurement decision making, taking into account CPR17, and
(iv) its interaction with any other Government policies and programs (including grants), instruments, guidelines and documents relating to procurement, including the Department of Finance's Resource Management Guide No. 415;
(c) the extent to which CPR17 and any related instrument and rules can be affected by trade agreements and other World Trade Organisation (WTO) agreements, including:
(i) existing trade agreements Australia has entered into, and
(ii) trade agreements that the Commonwealth Government is currently negotiating, including the WTO Agreement on Government Procurement; and
(d) any related matters.
(2) That the committee consist of 10 members, 2 members of the House of Representatives to be nominated by the Government Whip or Whips, 2 members of the House of Representatives to be nominated by the Opposition Whip or Whips, 1 member of the House of Representatives to be nominated by any minority party or independent member, 2 senators to be nominated by the Leader of the Government in the Senate, 2 senators to be nominated by the Leader of the Opposition in the Senate and 1 senator to be nominated by any minority party or independent senator.
(3) That participating members may be appointed to the committee, may participate in hearings of evidence and deliberations of the committee, and have all the rights of a member of the committee, but may not vote on any questions before the committee.
(4) That every nomination of a member of the committee be notified in writing to the President of the Senate and the Speaker of the House of Representatives.
(5) That the members of the committee hold office as a joint standing committee until the House of Representatives is dissolved or expires by effluxion of time.
(6) That the committee elect as its chair a member nominated by the Leader of the Government in the Senate.
(7) That the committee elect a non–Government member as its deputy chair who shall act as chair of the committee at any time when the chair is not present at a meeting of the committee, and at any time when the chair and deputy chair are not present at a meeting of the committee the members present shall elect another member to act as chair at that meeting.
(8) That, in the event of an equally divided vote, the chair, or the deputy chair when acting as chair, has a casting vote.
(9) That 3 members of the committee constitute a quorum of the committee, provided that in a deliberative meeting the quorum shall include 1 Government member of either House and 1 non-Government member of either House.
(10) That the committee have power to appoint subcommittees consisting of 3 or more of its members, and to refer to any subcommittee any matter which the committee is empowered to examine.
(11) That the committee appoint the chair of each subcommittee who shall have a casting vote only, and at any time when the chair of a subcommittee is not present at a meeting of the subcommittee the members of the subcommittee present shall elect another member of that subcommittee to act as chair at that meeting.
(12) That 2 members of a subcommittee constitute a quorum of that subcommittee, provided that in a deliberative meeting the quorum shall include 1 Government member of either House and 1 non-Government member of either House.
(13) That members of the committee who are not members of a subcommittee may participate in the proceedings of that subcommittee but shall not vote, move any motion or be counted for the purpose of a quorum.
(14) That the committee or any subcommittee have power to call for witnesses to attend and for documents to be produced.
(15) That the committee or any subcommittee may conduct proceedings at any place it sees fit and sit in public or private.
(16) That the committee or any subcommittee have power to adjourn from time to time and to sit during any adjournment of the Senate and the House of Representatives.
(17) That the committee may report from time to time, but that it present its final report no later than 31 May 2017.
(18) That the provisions of this resolution, so far as they are inconsistent with the standing orders, have effect notwithstanding anything contained in the standing orders.
(19) That a message be sent to the House of Representatives seeking its concurrence in this resolution.
That the following matter be referred to the Finance and Public Administration References Committee for inquiry and report by 24 February 2017:
The operation of the Administrative Arrangements Order, the effectiveness of the division and performance of responsibilities under it, and any other related matters.
The Senate divided. [12:32]
(The President—Senator Parry)
That business of the Senate, notice of motion No. 5 standing in my name for today, relating to Australia's oil and gas resources, be postponed until the next sitting day.
That the Senate notes the many issues in this country in relation to proper process not being followed in judicial and other matters.
That—
(a) the Senate notes that:
(i) on 25 November 2016, solicitors on behalf of the Commonwealth Attorney-General filed a Statement of Agreed Facts in the High Court sitting as the Court of Disputed Returns in the matter of Re Rodney Culleton,
(ii) paragraph 1 of the Statement of Agreed Facts includes the following statement: the Magistrate in convicting Senator Culleton as an absent offender was precluded by section 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW) from making an order for a sentence of imprisonment, and
(iii) the facts set out above and agreed by solicitors acting on behalf of the Commonwealth Attorney-General were not before the Senate on Monday 7 November 2016 when it considered the motion moved by Senator Brandis to refer the matter to the High Court under section 378 of the Commonwealth Electoral Act 1908 ;
(b) the Senate calls on the Attorney-General (Senator Brandis) to attend the chamber and clarify this matter; and
(c) at the conclusion of the explanation any senator may move to take note of the explanation.
The Senate divided. [12:42]
(The President—Senator Parry)
Register of Foreign Ownership of Agricultural Land Amendment (Water) Bill 2016
The Australian public now knows that 13.6 per cent of our farmland is owned by international interests, but where is the detail? What is the dollar value of that land? Where is the detail on the total number of farms owned? Where is the easy public access? Where are the region-specific statistics? We have taken the first steps towards greater public access, but it is limited. We could provide, and we should provide, much greater transparency.
(1) Schedule 1, page 18 (after line 7), at the end of the Part, add:
34 Before section 35
Insert:
34A Productivity Commission inquiry—Parts 3A and 3B
(1) Before the end of the period of 3 years after the commencement of this section, the Minister administering the Productivity Commission Act 1998 (theProductivity Minister ) must, under paragraph 6(1) (a) of that Act, refer to the Productivity Commission for inquiry the matter of the effectiveness of the scheme set out in Parts 3A and 3B of this Act, including an assessment of the costs and benefits of that scheme.
(2) In referring the matter to the Productivity Commission for inquiry, the Productivity Minister must:
(a) under paragraph 11(1) (b) of the Productivity Commission Act 1998 , specify that the Productivity Commission must submit its report on the inquiry to the Productivity Minister within 5 years of the commencement of this section; and
(b) under paragraph 11(1) (d) of that Act, require the Productivity Commission to make recommendations in relation to the matter.
Note: Under section 12 of the Productivity Commission Act 1998 , the Productivity Minister must cause a copy of the Productivity Commission's report to be tabled in each House of the Parliament.
(3) For the purposes of paragraph 6(1) (a) of the Productivity Commission Act 1998 , the matter mentioned in subsection (1) of this section is taken to be a matter relating to industry, industry development and productivity.
That the bill be now read a third time.
Criminal Code Amendment (War Crimes) Bill 2016
… neither taking … part in hostilities nor are members of an organised armed group; and
… the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the—
… persons are neither—
… hostilities nor are members of an organised armed group.
… the proportionality principle is not confined to ‘the time the attack was launched’—
but is rather a continuing obligation that endures throughout an attack.
At the end of the motion, add:
", but the Senate notes, in the context of these proposed amendments, the Australian Defence Force's participation in military operations involving drones or autonomous weapons is currently surrounded in secrecy and calls on the Government, where these operations result in civilian casualties, to publish a monthly report detailing the date, location, target, number of civilian casualties and level of Australian assistance to these operations.".
The Senate divided. [13:40]
(The Acting Deputy President—Senator Gallacher)
(1) Schedule 1, item 2, page 3 (line 17), after "who", insert "are not performing a continuous combat function or".
[aligning offences with international humanitarian law]
(2) Schedule 1, item 4, page 3 (line 31), after "who", insert "are not performing a continuous combat function or".
[aligning offences with international humanitarian law]
(3) Schedule 1, item 6, page 4 (line 13), after "who", insert "are not performing a continuous combat function or".
[aligning offences with international humanitarian law]
(4) Schedule 1, item 7, page 4 (line 18), after "person " , insert "performing a continuous combat function".
[aligning offences with international humanitarian law]
(1) Schedule 1, item 8, page 5 (line 9), after "launched", insert "and during the attack".
[aligning proportionality with international humanitarian law]
(2) Schedule 1, item 9, page 5 (line 23), after "launched", insert "and during the attack".
[aligning proportionality with international humanitarian law]
(3) Schedule 1, item 10, page 6 (line 7), after "launched", insert "and during the attack".
[aligning proportionality with international humanitarian law]
(4) Schedule 1, item 11, page 6 (line 22), after "launched", insert "and during the attack".
[aligning proportionality with international humanitarian law]
… not confined to ‘the time the attack was launched’ (as per the Bill’s clauses) but is rather a continuing obligation that endures throughout an attack.
That these bills be now read a third time.
The Senate divided. [14:01]
(The President—Senator Parry)
It is clear enough that the government is not successful in providing the economic leadership that we need.
We are delivering, the 45th Parliament is working, the government is governing …
ADDITIONAL INFORMATION IN RESPONSE TO QUESTION WITHOUT NOTICE FROM SENATOR HINCH TO MINISTER NASH (REPRESENTING THE HEALTH MINISTER) ON TUESDAY , 29 NOVEMBER:
To date, the TGA has received 184 adverse event reports, involving 207 patients, associated with the use of these devices. Compared with the 100,000 devices estimated to have been sold in Australia since 2000, this represents 0.2% - a significantly lower rate than reported in the current literature.
To take note of answers to questions asked by opposition senators to Senator Brandis.
That the Senate adopt the recommendation at paragraph 1.41 of the report.
I rise to speak to the tabling of the Parliamentary Joint Committee on Human Rights' Report 10 of 2016.
The committee's report examines the compatibility of recent bills and legislative instruments with Australia's human rights obligations. Eight new bills are assessed as not raising human rights concerns and the committee has also concluded its consideration of a number of matters, two of which I will speak to today .
However, before I do so, I would like to take this opportunity to speak a little about the role of the committee and its statutory mandate.
The committee is one of three parliamentary committees established or administered by the Federal Parliament specifically tasked to scrutinise legislation against specified principles. Legislative scrutiny committees undertake technical assessments of bills and legislation against scrutiny criteria or, in the case of this committee, established international human rights norms. It is a different role to other joint, House and Senate committees which focus on policy merits.
The role of committee members has been and is to ensure that committee reports are legally and technically credible, as well as consistent with past practice. However, scrutiny committee members are not and have never been bound by the contents or conclusions of scrutiny committee reports and, like all parliamentarians, are free to otherwise engage in debates over the policy merits of legislation according to the dictates of party, conscience, belief or outlook.
In performing its function the committee receives legal advice in relation to the human rights compatibility of legislation. The committee is served by an external legal adviser to the committee, Dr Aruna Sathanapally, and secretariat staff.
Clearly, parliamentary committees such as this one have an important role to play in informing parliamentarians about the human rights implications of legislation and ensuring better understanding of human rights more broadly.
Two of the concluded entries in today's report are strong examples of positive engagement, with the committee, and its mandate.
In the committee's previous consideration of the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, the committee sought advice from the Minister for Social Services as to the compatibility of the bill with the right to equality and non‑discrimination on the basis of age relating to ceasing a mobility allowance for people aged over 65.
The information provided by the Minister indicated that there is a range of programs in place, including transitional arrangements, to assist in providing appropriate ongoing support even after the mobility allowance is discontinued under the bill. The committee therefore concluded, in light of this information, that ceasing the mobility allowance is likely to be compatible with the right to equality and non‑discrimination on the basis of age.
In respect of the Australian Public Service Commissioner's Directions 2016, which provide that decisions to terminate the employment of an ongoing APS employee for breach of the Code of Conduct must be published in the Gazette, the committee sought further advice from the Commissioner in relation to the human rights compatibility of this measure with the right to privacy.
In his response, the Commissioner noted that the committee raised valid questions about whether the limitation on the right to privacy is a reasonable or proportionate measure, and has undertaken to review the publication of termination decisions in light of these concerns.
I encourage my fellow Senators and others to examine the committee's report to better inform their understanding of the committee's work.
With these comments, I commend the committee's Report 10 of 2016 to the Senate.
That the Senate take note of the report.
The continuation of the status quo will, from Arrium’s point of view, almost certainly result in the closure of steelmaking facilities in Australia.
It is simply not sustainable, given the current low margins and prices and the ongoing pressure from cheap imports, for Australian steelmakers to continue to operate as they are.
Broadcasting Legislation Amendment (Media Reform) Bill 2016
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
The Broadcasting Legislation Amendment (Media Reform) Bill 2016 will amend media control and ownership rules in the Broadcasting Services Act 1992 and establish new local television programming obligations for regional commercial broadcasters.
These reforms will allow media businesses to gain the scale necessary to compete in an increasingly fragmented and global media environment while ensuring that Australians continue to have access to a diversity of sources of news and information.
Much of the legislative framework governing the Australian media was developed in the analogue era when the industry was dominated by the three established media platforms: commercial television, commercial radio and associated newspapers. This structure allowed the development of predictable numerical tests as a proxy for media diversity.
The modern media environment is significantly different, and some of these tests have lost their relevance. While traditional commercial television and radio platforms are still well-loved by Australians, they are not the only sources of video, audio and news content. Australians are increasingly using new sources of news and entertainment content, including subscription and online platforms, which are not subject to regulations restricting their investment decisions and operating structure.
Australia's domestic media businesses are placed at risk by their constrained ability to compete, and elements of the regulatory framework originally designed to protect media diversity are now impeding the capacity of local businesses to deal with the change underway in the industry and continue to provide quality professional journalism and reporting.
This Bill seeks to repeal two control and ownership rules that no longer make sense in the digital media environment: the '75 per cent audience reach rule' and the '2 out of 3 cross-media control rule'. These rules are antiquated and do little to support media diversity. Their removal will allow regulated media companies to achieve greater scale in their operations and, subject to the general law, to structure their businesses to make the most of opportunities as they emerge.
The '75 per cent audience reach rule' prohibits a person, either in their own right or as a director of one or more companies, from controlling commercial television broadcasting licences whose combined reach exceeds 75 per cent of the Australian population. This rule effectively prevents any major commercial television network (Seven, Nine or Ten) from merging with or acquiring the regional television networks of Prime, WIN and Southern Cross, or vice-versa.
In the digital media environment, the '75 per cent audience reach rule' is irrelevant. Online platforms allow content to be accessed by viewers all over Australia and the world. In practical terms, the rule acts as a barrier to commercial television broadcasters competing with scale in this environment. This rule also does little to further media diversity.
The '2 out of 3 rule' is also redundant. This rule prevents mergers or changes in control that involve more than two of the three regulated media platforms in any commercial radio licence area. Online media is no longer viewed as something distinct from the more traditional media platforms. Audiences in Australia and overseas now discover and access news from multiple sources across a range of media platforms, including online, social media, television, radio and newspapers. It is no longer appropriate that commercial television, commercial radio and associated newspapers be restricted by this rule when unregulated platforms are free to consolidate and adapt their businesses as much as they see fit, subject to wider considerations like competition rules.
Like the '75 per cent reach rule', the '2 out of 3 rule' is also not significantly contributing to media diversity. In most of the licence areas around Australia, the '2 out of 3 rule' is not in play as these licence areas do not include operations from all three regulated platforms: commercial television, commercial radio and associated newspapers. The removal of the rule would therefore have no bearing on cross-media ownership in these markets.
In around a third of the remaining areas, further media transactions of any sort will be prohibited because they are all at or below the 'diversity floor' of a minimum of four 'voices' under the 5/4 rule, which provides that at least five independent media groups must at all times be present in metropolitan commercial radio licence areas and four such groups in regional commercial radio licence areas.
Any consolidation that may arise from the removal of the rule would therefore be limited to the metropolitan and larger regional markets, where diversity issues are unlikely to arise given the greater numbers of media outlets in operation.
Together, the repeal of the '75 per cent reach rule' and '2 out of 3 rule' will reduce regulatory burden on the media industry, allow media businesses to operate more flexibly in the market, and help ensure they can continue to provide high quality news and entertainment services to Australians.
The Government has carefully listened to stakeholders and parliamentary colleagues who have expressed their concern that television sector consolidation could lead to reductions in local programming. This Bill therefore includes a package of measures which will ensure the availability of local content in most regional areas and strengthen links between local content and the communities it is broadcast to.
Communities in regional Australia have told the Government how important it is to maintain locally relevant news and information in their area. Not only is local news and commentary valued, but local content also supports jobs and investment in regional communities where such programming is produced locally. While there are clear benefits associated with services that provide local television content, there are also significant costs and investment outlays associated with it, and market forces alone may not ensure that local content is provided at optimal levels.
Additionally, regional commercial broadcasters are under increasing pressure from new and emerging services, and from internet streaming of metropolitan broadcasts into regional areas. In the absence of regulation, the high costs of local content production and the structural changes underway in the media more broadly will create incentives for broadcasters to achieve efficiencies, placing pressure on the continued supply of local programming at current levels.
Currently, the Broadcasting Services Act requires regional commercial television licensees in certain types of markets to provide local content – termed material of local significance in the Act – within specified areas. The framework for allocating commercial free-to-air television broadcasting licences divides Australia into various commercial television broadcasting licence areas that broadly reflect population distribution. Licence areas are then divided into local areas, however in some cases the local area is equal to the licence area.
Under the current arrangements, regional commercial television licensees in aggregated markets and Tasmania are required to provide approximately 120 points of material of local significance per week to local areas within the licence areas. Material of local significance is material that is broadcast to a local area and relates directly to either the local area or the licence area. The aggregated markets include the following licence areas: Northern New South Wales, Southern New South Wales, Regional Victoria and Regional Queensland.
Currently there are no local content obligations in non-aggregated markets which include Darwin, the major regional population centres in South Australia and Western Australia, and parts of Western New South Wales, Victoria and Queensland.
The Bill will extend and increase local content obligations for regional commercial television licensees. The new obligations will apply to regional commercial television broadcasting licences which, as a result of a change in control (called a 'trigger event'), become part of a group of commercial television broadcasting licences whose combined licence area populations exceed 75 per cent of the Australian population. The additional local content obligations will commence six months after the Bill receives Royal Assent.
The requirement for the licensee to be part of a commercial television group that reaches over 75 per cent of the population ensures that the additional local content obligations are only 'triggered' after the licensee is in a position to benefit from the additional scale and efficiency that the media reforms will allow.
Under the Broadcasting Services Act, currently local programming targets are expressed as 'points' where each minute of material of local significance is worth one point, and each minute of news that relates directly to the local area is worth two points.
Where a trigger event takes place the Bill will:
The additional local content obligations will take effect for each licensee six months after the trigger event. This will allow the licensee sufficient time to implement the necessary business and investment decisions in order to broadcast the required amount of local programming.
The additional obligations are aimed at ensuring that there is local content in nearly all regional licence areas following a change in control, including those where there is none currently. However, broadcasts to remote areas of Australia, predominantly in Western and Central Australia, will be excluded given the large geography and lack of large population centres.
Licences allocated under sections 38A and 38B of the BSA will also be excluded. These licences are allocated by the Australian Communications and Media Authority (hereinafter referred to as 'the ACMA') to existing licensees to ensure that regional audiences receive all three main television networks, where there are less than three broadcasters in the licence area. To place local programming obligations on section 38A and 38B licences would represent an unrealistic financial burden on the original 'parent' broadcaster in each regional licence area.
To maximise the relevance of local content to served markets, this Bill includes an incentive for local news to be filmed in the local area. To achieve this the Bill introduces a new three point category under the local programming points system for licences affected by a trigger event. Under the revised points system, each minute of local news programming that depicts people, places or things in the relevant local area will be allocated three points. The local programming points system will otherwise replicate the current material of local significance points system under the Broadcasting Services (Additional Television Licence Condition) Notice 2014.
The Bill will require the ACMA to make a new Local Programming Determination which would identify the local areas for the purposes of the local programming obligations. The delayed introduction of the additional local programming obligations in the Bill by six months will allow the ACMA sufficient time to make the Local Programming Determination before the commencement of the new obligations.
The Bill will require licensees to provide the ACMA with two reports detailing their compliance with the obligations from twelve months after their new obligation commences and another a year later.
In order to evaluate the extent to which the Bill achieves its objective, the ACMA will review the operation of the new local programming provisions within two years following the commencement of the additional obligations.
Prior to the commencement of schedules 1 and 2, it is the Government's expectation that prospective changes to the law should not be relevant to the ACMA's consideration of any prior approval applications made under sections 67, 61AJ and 61AMC of the Broadcasting Services Act. The Government considers that the ACMA would continue to consider applications for prior approval of temporary breaches of the control and ownership rules without reference to these proposed amendments (in other words, to consider such applications on the law as it stands at the time). This will avoid any party gaining a 'first mover advantage' in pursuing transactions that may be permitted only once schedules 1 or 2 have commenced.
A previous incarnation of the Media Reform Bill was introduced into the former Parliament in March 2016. The Senate referred the Bill to the Senate Environment and Communications Legislation Committee for inquiry and report. Public hearings were held in Canberra on 31 March 2016 and in Melbourne on 29 April 2016.
On 5 May 2016, the committee released its report which made two recommendations. Recommendation 1 was that the Government consider amending the 'trigger event' provision in schedule 3 to the Media Reform Bill. The definition of a 'trigger event' did not cover changes in control where a regional broadcaster came to be in a position to control a metropolitan broadcaster, and as a result the proposed additional local programming obligations would not apply. Recommendation 2 was that the Media Reform Bill be passed.
The Government thanks the committee for its report and agrees with the committee's recommendations. The Government has made the suggested amendment to the 'trigger event' provision in the Media Reform Bill.
The Government is committed to reforming legislation in areas where archaic regulation is holding Australian businesses back. This Bill is yet another step in removing restrictive and redundant regulation, and ensuring independent sources of news, current affairs and similar programming continue to be available to all Australians, particularly those in regional areas.
Building and Construction Industry (Improving Productivity) Bill 2013
Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013
VET Student Loans (Consequential Amendments and Transitional Provisions) Bill 2016
That the remaining formal motions listed at item 9 on today's Order of Business be called on.
That the Senate—
(a) notes that people with disability face many barriers to finding and maintaining secure work and are poorly represented in the workforce;
(b) acknowledges that the report of the Australian Council of Social Service, Poverty in Australia 2016 , reported 510,900 adults with a disability were living below the poverty line in 2013-14, not including people with disability with core activity limitation, and that, in 2014, 36.2 per cent of Disability Support Pension recipients were living below the poverty line; and
(c) calls on the Government to abandon its attacks on supports for people with disability, including moving people with disability off the Disability Support Pension and making access to the Mobility Allowance tougher.
The Senate divided. [16:10]
(The President—Senator Parry)
That the Senate—
(a) supports the 53 000 workers directly employed by the coal industry;
(b) recognises that the forced closure of coal–fired power stations would increase the living expenses of Australian families through increased electricity prices;
(c) acknowledges that the forced closure of coal–fired power stations would jeopardise Australia's energy security and put thousands of jobs at risk in our manufacturing sector which relies on access to cheap and affordable power;
(d) acknowledges that coal is an affordable, abundant and increasingly clean domestic energy resource that is vital to providing reliable low-cost electricity, and that it will continue to be integral to Australia; and
(e) supports technology neutral policies that deliver emission reduction targets.
That the Senate—
Omit paragraphs (b) to (e), substitute the following:
(b) calls on the Government to develop a just transition plan to support affected workers and communities as Australia replaces coal-fired power with renewables.
That the Senate—
(a) notes the many pieces of legislation arising from the 2014-15 and 2015-16 Budgets that would create greater income inequality in Australia that have been previously rejected, and will not secure passage through this Senate;
(b) requests the Government to withdraw these previously rejected Budget measures from the Mid-Year Economic and Fiscal Outlook so as to more accurately represent the true fiscal position of the Commonwealth; and
(c) instructs the Government that, in its preparations for the 2017-18 Budget, this Senate resolves that, for the duration of the 45th Parliament, any proposed measures which further attack the most vulnerable Australians, increase their disadvantage or social exclusion, or disproportionately benefit the highest income Australians, will not pass into law.
The Senate divided. [16:20]
(The President—Senator Parry)
That the Senate—
(a) notes that a recent poll in The Mercury newspaper found strong public support for light rail in Hobart;
(b) notes the significant benefits of light rail in Hobart, including:
(i) the reduction in greenhouse gas and particulate emissions,
(ii) the reduction in traffic congestion and associated improvements in amenity and productivity,
(iii) the increase in value of property along and around the rail corridor,
(iv) the opportunities for business growth along and around the rail corridor,
(v) incentivising infill developments to limit urban sprawl, and
(vi) the benefit to Tasmania's tourism industry of a direct rail link between Hobart and MONA; and
(c) supports light rail for Hobart.
The Senate Divided. [16:30]
(The President—Senator Parry)
That—
(a) the Senate notes that:
(i) on 25 November 2016, solicitors on behalf of the Commonwealth Attorney-General filed a Statement of Agreed Facts in the High Court sitting as the Court of Disputed Returns in the matter of Re Rodney Culleton,
(ii) paragraph 1 of the Statement of Agreed Facts includes the following statement: the Magistrate in convicting Senator Culleton as an absent offender was precluded by section 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW) from making an order for a sentence of imprisonment, and
(iii) the facts set out above and agreed by solicitors acting on behalf of the Commonwealth Attorney-General were not before the Senate on Monday 7 November 2016 when it considered the motion moved by Senator Brandis to refer the matter to the High Court under section 378 of the Commonwealth Electoral Act 1908 ;
(b) the Senate calls on the Attorney-General (Senator Brandis) to attend the chamber and clarify this matter; and
The Senate divided. [16:36]
(The President—Senator Parry)
That the Senate—
(a) supports the right to peaceful protest in Australia;
(b) congratulates and thanks the protestors who, on 30 November 2016, expressed their views in the gallery of the House of Representatives, otherwise known as the People's House; and
(c) calls on the Government to close the immigration camps on Manus Island and Nauru.
That the Senate notes that—
(a) seventeen children in the care of the Department of Health and Human Services in Victoria died between July and September this year;
(b) six children who were Department of Health and Human Services clients in Victoria were killed by 'non-accidental trauma' last year; and
(c) outsourcing the care and welfare of our most vulnerable children should be reviewed.
I know we are a commonwealth of states, but it is madness, it is Noddyland, when a father can break a little boy's arm in Sydney and change states and kill that child in Adelaide, because medical records in New South Wales were not available in South Australia. That is mad.
That so much of standing orders be suspended as would prevent me moving a motion to provide for the consideration of a matter, namely a motion to provide that a motion relating to the hours of meeting and the routine of business for today may be moved immediately and determined without amendment.
The Senate divided. [18:35]
(The President—Senator Parry)
That a motion to vary the hours of meeting and routine of business for today may be moved immediately and determined without amendment or debate.
That the question be now put.
The Senate divided. [18:39]
(The President—Senator Parry)
The Senate divided. [18 43]
(The President—Senator Parry)
That—
(a) government business shall be called on immediately and the following bills be considered till determined:
VET Student Loans Bill 2016
Civil Nuclear Transfers to India Bill 2016
Veterans' Affairs Legislation Amendment (Budget and Other Measures) Bill 2016
Income Tax Rates Amendment (Working Holiday Maker Reform) Bill 2016 (No. 2)
Superannuation (Departing Australia Superannuation Payments Tax) Amendment Bill (No. 2) 2016; and
(b) the question for the adjournment of the Senate shall not be proposed until a motion for the adjournment is moved by a minister.
The Senate divided. [18:47]
(The President—Senator Parry)
Income Tax Rates Amendment (Working Holiday Maker Reform) Bill 2016 (No. 2)
That the message be considered in Committee of the Whole immediately.
The Senate divided. [18:54]
(The President—Senator Parry)
That the committee does not press its request for amendments not made by the House of Representatives.
That the question now be put.
The committee divided. [20:25]
(The Chair—Senator Lines)
That this bill be now read a third time.
That the question now be put.
[The Senate divided. [20:30]
(The President—Senator Parry)]
The Senate divided. [20:33]
(The President—Senator Parry)
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
This Bill amends the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007 to lower from 95 per cent to 65 per cent the rate of tax on superannuation payments applying to working holiday makers after they leave Australia.
As part of the Government's working holiday maker reform package, Parliament previously agreed to amend the Superannuation (Departing Australia Superannuation Payments Tax) Act 2007 to increase to 95 per cent the rate of tax on superannuation payments to working holiday makers after they leave Australia. That increase helped to ensure that the Government's working holiday maker reform package was fully offset.
As a result of the negotiations with Senate crossbench around the passage of legislation to implement a 15 per cent tax rate on working holiday makers' income, the Government has agreed to lower the rate of tax on working holiday makers' Departing Australia Superannuation Payment from 95 per cent to 65 per cent.
The new rate of tax introduced by this Bill will apply from 1 July 2017. The decision to lower the rate of tax on Departing Australia Superannuation Payments to working holiday makers from 95 to 65 per cent is estimated to have a cost to revenue of $55 million over the forward estimates.
This change will lower the overall level of taxation that applies to working holiday makers. It is part of the Government's package to lower to 15 per cent the rate of tax applying to working holiday makers' income. This is a good outcome for working holiday makers and the employers that rely on them as a valued source of seasonal labour.
Full details of the measure are contained in the explanatory memorandum.
That the question be now put.
The Senate divided. [20:38]
(The President—Senator Parry)
That this bill be now read a third time.
That the question be now put.
The Senate divided. [20:42]
(The President—Senator Parry)