by leave—I move:
That the Finance and Public Administration References Committee be authorised to hold a private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate today, from 1.50 pm to 2 pm.
Question agreed to.
Debate resumed from 17 September, on motion by Senator Wong:
That this bill be now read a second time.
Question agreed to.
Bill read a second time.
Bill—by leave—taken as a whole.
by leave—I move opposition amendments (1) to (3) on sheet 5920 together:
(1) Schedule 1, item 1, page 3 (lines 4 to 7), omit the item, substitute:
1 Section 9
Insert:
total remuneration has the meaning specified in regulations made for the purposes of this definition.
(2) Schedule 1, item 31, page 9 (line 13), to page 10 (line 25), omit the item, substitute:
31 Subsections 200F(3) and (4)
Repeal the subsections, substitute:
(3) This subsection applies if the relevant period for the person is less than 1 year. The amount worked out under this subsection is:
Estimated annual total remuneration | x | Number of days in relevant period |
365 |
where:
estimated annual total remuneration is a reasonable estimate of the total remuneration that the person would have received from the company and related bodies corporate during the relevant period if the relevant period had been 1 year.
Note: The relevant period for the person is defined in subsection (5).
(4) This subsection applies in every other case. The amount worked out under this subsection is:
(a) if the relevant period is 1 year—the total remuneration that the person received from the company and related bodies corporate during the relevant period; or
(b) if the relevant period is more than 1 year but less than 2 years—the average annual total remuneration that the person received from the company and related bodies corporate during the relevant period, worked out as if:
(i) the relevant period were 2 years; and
(ii) the person’s annual total remuneration for the second year were a reasonable estimate of what the person would have received as total remuneration after the first year of the relevant period had the relevant period been 2 years; or
(c) if the relevant period is 2 years—the average annual total remuneration that the person received from the company and related bodies corporate during the relevant period; or
(d) if the relevant period is more than 2 years but less than 3 years—the average annual total remuneration that the person received from the company and related bodies corporate during the relevant period, worked out as if:
(i) the relevant period were 3 years; and
(ii) the person’s annual total remuneration for the third year were a reasonable estimate of what the person would have received as total remuneration after the second year of the relevant period had the relevant period been 3 years; or
(e) if the relevant period is 3 years or more—the average annual total remuneration that the person received from the company and related bodies corporate during the last 3 years of the relevant period.
(3) Schedule 1, item 37, page 11 (line 4), to page 12 (line 11), omit the item, substitute:
37 Subsections 200G(2) and (3)
Repeal the subsections, substitute:
(2) This subsection applies if the relevant period for the person is less than 1 year. The amount worked out under this subsection is:
Estimated annual total remuneration | x | Number of days in relevant period |
365 |
where:
estimated annual total remuneration is a reasonable estimate of the total remuneration that the person would have received from the company and related bodies corporate during the relevant period if the relevant period had been 1 year.
Note: The relevant period for the person is defined in subsection (6).
(3) This subsection applies in every other case. The amount worked out under this subsection is:
(a) if the relevant period is 1 year—the total remuneration that the person received from the company and related bodies corporate during the relevant period; or
(b) if the relevant period is more than 1 year but less than 2 years—the average annual total remuneration that the person received from the company and related bodies corporate during the relevant period, worked out as if:
(i) the relevant period were 2 years; and
(ii) the person’s annual total remuneration for the second year were a reasonable estimate of what the person would have received as total remuneration after the first year of the relevant period had the relevant period been 2 years; or
(c) if the relevant period is 2 years—the average annual total remuneration that the person received from the company and related bodies corporate during the relevant period; or
(d) if the relevant period is more than 2 years but less than 3 years—the average annual total remuneration that the person received from the company and related bodies corporate during the relevant period, worked out as if:
(i) the relevant period were 3 years; and
(ii) the person’s annual total remuneration for the third year were a reasonable estimate of what the person would have received as total remuneration after the second year of the relevant period had the relevant period been 3 years; or
(e) if the relevant period is 3 years or more—the average annual total remuneration that the person received from the company and related bodies corporate during the last 3 years of the relevant period.
These amendments, which I foreshadowed in my contribution on the second reading, seek to change the threshold trigger for a shareholder vote on an executive’s termination payment from one year’s base salary to one year’s total salary. The coalition believes that this amendment will encourage executive pay and performance to be linked and will maintain alignment of shareholder and executive interests. In our view, such an amendment empowers shareholders and improves governance and disclosure, but not at shareholders’ expense.
Concerns around the dangers of a creeping base pay have been highlighted since this bill was introduced. In fact, they were highlighted throughout the inquiry by the Senate Economics Legislation Committee into this bill. Concerns were expressed from a broad range of industry groups: the Business Council of Australia, the Australian Institute of Company Directors, the Australian Bankers Association and Guerdon Associates, who are remuneration consultants.
As we see it, the failure within this bill is in failing to link remuneration with performance. It goes against the principles espoused in the Financial Stability Board of the G20, which, of course, this government is very keen to champion. In addition, the one year’s base pay threshold puts Australian in a position where it has the lowest base pay thresholds of comparable corporate law in any country. We believe such a change would threaten our nation’s ability to attract and retain talented executives and managers from overseas.
Remuneration experts say executives are already using the present uncertainty generated by this bill about the regulatory environment—including the new cap on termination payments, changes to employee share schemes and APRA’s draft guidelines on pay in the financial services sector—to increase their demands for an increase in fixed pay. Pay has traditionally been made up of one-third pay, one-third short-term bonuses and one-third long-term bonuses. The effect of the changes will be some executives seeking higher base pay at a time when any increase will be particularly unpalatable to the majority of shareholders in the broader market. This trend has emerged despite the draft guidelines released by APRA, which is leading the push to have financial service institutions pay more long-term incentives to their executives. The productivity review has not provided much more certainty at the moment.
In the United States, financial companies that received government bailouts, such as the Bank of America and Citigroup, recently resumed offering a great deal in guaranteed bonuses to retain their top executives. Stronger banks, such as Goldman Sachs, Morgan Chase and Morgan Stanley, have repaid their bailout money and are not subject to pay restrictions and have begun offering guarantees to some new employees. In our view, Australia needs to avoid creating a financial system and regulated structure that deters foreign entrants.
Having said that, we have in these amendments attempted to write out one of the major unintended consequences of this bill, which I addressed in my speech on the second reading. They go towards ensuring that performance and pay are linked, as executive and shareholder interests should be. The bill’s unintended consequence of causing base pay to rise will make the original intent of this legislation much harder to achieve, the adverse consequences of which will be borne by all shareholders—the very ones this bill has sought to help. We do appreciate the sensitivities associated with this matter, and we feel that in all the circumstances the bill will be improved should it be amended, as proposed by the opposition, to ensure that its objectives will actually be achieved.
I indicate that the government will not be supporting these amendments by the opposition. The current threshold allows up to seven years total remuneration to be paid before shareholder approval is required. This is a very high threshold and there is a clear need for reform to address this and other deficiencies in the regulatory framework. The Productivity Commission considered this issue as part of its review of Australia’s remuneration framework. In its draft report, the commission noted that the majority of contracts currently use base salary, rather than total remuneration, to determine the amount of a termination benefit. As such, the commission concluded that a threshold determined by reference to base salary, rather than total remuneration, is unlikely to cause difficulties.
However, it is no surprise to see the Liberal Party out there opposing, once again, a sensible reform to corporate excess—opposing a sensible reform to executive remuneration abuse. They have a track record that stretches over the 11½ years they were in government of being dragged, screaming and kicking, to every single reform of the executive remuneration abuses that have gone on. They may and try and tell you that, in fact, they introduced in CLERP 9 the non-binding shareholder vote. But let me be very clear, having been the shadow minister at the time: when I first called for the executive remuneration non-binding shareholder vote, it was roundly opposed. I was roundly criticised by the then Parliamentary Secretary for Financial Services, Senator Ian Campbell, who criticised me for plagiarising this from the UK. After a period of some six months of my being attacked for plagiarism and not having my own policy framework, the then government finally relented and agreed to introduce the non-binding vote.
But it took six months of campaigning to end this sort of executive remuneration abuse, and we are just starting to see some of the benefits coming from this now, with votes that have taken place just in the last two weeks over Qantas’s remuneration and over a string of other companies’ remuneration. Large votes have taken place against these sorts of packages. Even Telstra, a very popular company in today’s chamber debate, received a resounding no vote over Mr Trujillo’s remuneration package. So it is not surprising to see once again—when sensible, modest reform of executive remuneration abuses is put forward in this chamber—those on the other side, who protect and champion privilege and executive remuneration abuses, up to their same old tricks. The chamber should absolutely reject the opposition’s amendments.
My understanding is that the amendments that the coalition are putting forward would allow executives to get higher termination payments, not lower ones. We are actually trying to bring a bit of reality in and to put a halt to excessive, obscene packages, and I think the coalition are going in the wrong direction with their particular amendments. I will not be supporting the opposition’s moved amendments. There are far better ways to bring transparency and to make sure that any termination payment above $1 million sets a trigger for shareholders to have a vote on it; that is where I will be going with my amendment.
From what I can see in going through the coalition’s amendments, they would allow executives to get even higher termination payments, and I do not think that is the message that we should be sending. It is not responsible. There is huge community concern about the excessive packages and termination payments, and if the community really knew what the coalition is trying to do here, it would be given all the wrong signals. No matter how you dress it up, the effect of the coalition’s amendments would allow executives to get higher termination payments, and I will not be supporting it.
I indicate that I do not support the amendments. They would water down the intent of the legislation, which I support in broad terms.
Question negatived.
I move Australian Greens amendment (1) on sheet 5858 revised:
(1) Schedule 1, item 7, page 5 (after line 14), after section 200AB, insert:
(1) Despite any other provision of this Act, an entity must not give, or propose to give, a benefit in connection with a person holding a managerial or executive office which exceeds, or is capable of exceeding, $5,000,000 in any financial year.
Note 1: The recipient of the benefit need not be the manager or executive.
Note 2: Managerial or executive office has the meaning given by section 200AA.
(2) If the benefit is given, or is proposed to be given, in connection with a person holding a managerial or executive office for a period of less than 12 months in a financial year, the figure in subsection (1) is taken to be reduced proportionately to reflect the number of days during which the office is held in that year.
(3) In this section:
benefit includes the amount of the benefit or the money value of the benefit (if it is not, or not solely, a payment).
entity includes related entities, so that the total or all benefits given by related entities in relation to the holding of a particular managerial or executive office may not exceed the relevant figure.
This amendment puts a direct and very simply understood limit on executive remuneration of $5 million. I will not delay the committee, because I have argued this amendment in this place before. The question I will put to the committee and to senators generally, however, is: can there be a person in office in a public or private entity who is worth $5 million for their endeavours in any given year, let alone for some position of office being held by them?
I ask that seriously. There has been argument that the Prime Minister’s wage of between $300,000 and $400,000 be lifted, but here we are talking about a proposal to limit CEOs’ packages to a figure that is more than 10 times the prime ministerial income in this country and far more than anybody is paid for a public position. Do the CEOs of big corporations—who, like us, are privileged by high office—warrant more than $5 million in a pay packet of one sort or another? The only argument that I have had back on this is, ‘If they advance the return to shareholders in any year through their activities’—and how you track that down is always quite difficult to know—‘then they ought to be rewarded.’ But we have to remember that, like people in public office, those in positions of private office, including CEOs, get their money from the public. It either comes from the resource base of the nation or the planet or from the purchasing power of the public. The very simple thing is that the more the CEO gets the less the shareholder gets or the higher the price the purchaser of the goods of that corporation pays.
The ongoing obscenity—to use the Prime Minister’s word—of CEOs in this country getting much more than $5 million in packages even during the financial crisis ought to be stopped, and there is no one going to stop it except us, the democratically elected representatives of the people of Australia. I am embarrassed by this figure of $5 million. I submit that it ought to be more constricted than that, but I ask if there is anybody here who is not going to be embarrassed by it being higher than that. Who in here is going to endorse $9.2 million for a representative of the Commonwealth Bank? Who, indeed, is going to endorse $80-plus million taken in one payment by the representatives of another corporation here in Australia? It also needs to be brought to mind that we have passed through this place legislation to enable the lowest paid in the country to be deprived of any increase on their very lowly income. This year we have seen that happen, with the review tribunal refusing to give them an increase, basically because of the global financial crisis. But that does not stop CEOs getting hundreds and, in some cases, thousands of times more than the lowest paid people in their firms. It simply has to stop, because it is unfair. Some realistic cap needs to be placed on it, and this amendment from the Greens is simply placing a clear, publicly understood cap.
Finally, I answer the argument about the drain of top executives overseas. It is my submission that, if there is anybody so greedy, selfish and un-public-minded—so prepared to take money out of the pockets of fellow citizens—that he or she is not content to be rewarded for their efforts with $5 million in any year, I will go down to the wharf to see them off. If they feel that they can go and rob publics elsewhere for a bigger amount than $5 million in any given year then I think the CEO may gain by going elsewhere but so will this country. I do not hold that argument for one minute. We need CEOs who have more principle, more public-mindedness and a greater sense of fairness, not simply CEOs who measure their own self worth by the pile of dollars in excess of $5 million that they may get at the expense of the wider public or shareholders in any given year.
I say at the outset that I support much of the sentiment of Senator Brown’s contribution. One of the reasons that the Labor Party and I have campaigned for so long on this issue is the corporate excess and greed that has prevailed and that has been protected largely by those on the other side of the chamber, as Senator Brown would well know. But this bill imposes a new threshold of one year’s base salary, before which shareholders have a capacity to reject it. It will increase the opportunity for shareholders to reject excessive termination payments. We are seeking to put this matter into the hands of shareholders. The bill relates to termination payments. The broader issue of remuneration more generally, including caps on remuneration more generally, is currently being considered by the Productivity Commission. We are not attracted at this point to supporting your amendment, but I certainly think many of the arguments you have advanced stand up very substantially. I think the path we are going down—a combination of the one-year salary cap before you get the vote—is an appropriate position at this point, and the Productivity Commission is considering many of the issues you have just raised.
The problem is that the Prime Minister himself used the word ‘obscene’ on the massive, multimillion dollar packages more than a year ago and, if I am not wrong, it was last year that he referred this matter to various arms-length entities for adjudication. But here we are a year down the line giving new powers to shareholders to consider termination payments, the so-called golden parachutes, but nothing at all about the packages boards get together and award to CEOs in any given year. I think the public can be forgiven for being sick and tired of the waiting and the procrastination. I do not accept the embellishment of the argument that we cannot really do anything to cap the salaries of CEOs because things have got better, so we will let them have free reign again.
I ask Senator Conroy, through you, Chair, when the government does expect to put to the public its proposals to rein in the excessive annual packages going to CEOs—for example, CEOs of major banks who have gained enormously from public largesse through legislation going through this place from this government to guarantee the lending capacity of banks during the exigencies of the current financial situation. It is about time the government acted on this and I would like to know from the government what the schedule of action is. I will even be so bold as to ask whether there is any idea at all what sort of action the government intends to take regarding annual packages for CEOs.
I believe the Productivity Commission is reporting in December and the government will then consider that report. When it intends to make a response to that, I am not sure. I could seek some further information on it. I do not know that it will have a finalised position on the date yet, given we have not received the report. But I reject one of Senator Brown’s assertions that we are doing nothing in this area. It is a very substantive change to the law that is being put forward here. I welcome the chance for shareholders to have their say. As I mentioned, just in the last few weeks there has been significant shareholder discontent expressed through those non-binding votes. Where many institutions are not yet prepared to make that a meaningful vote is that they have not been prepared to go to the next step, which is to deal with directors who are on the remuneration committees who have authorised those packages. On the one hand, institutions have finally started to say, ‘No, that is just a little bit over the top,’ but they are not yet prepared to go the next step, which is to discipline the boards for having done it, and then the ultimate sanction that is available to them is to vote against the re-election. So, if a package is rejected or in the high 40 per cent, which a number have been in recent times, institutions must be willing then to take the next step to deal with this sort of excess, and that is at the first available opportunity vote against board members who approved it and particularly vote against board members on the remuneration committee of these large companies. It is no good just having a non-binding vote if you are not then prepared to deal with the people who have created the problem—that is, the directors.
I do not agree with you that this is not a substantive change; this is a very substantive change. Where I do absolutely agree with you is that the first steps have been taken in genuine shareholder activism and democracy in this country. But the next step is just as important, and that is for institutions and those who vote against remuneration reports at annual general meetings then being prepared to—pardon the pun—put their money where their mouth is and vote against the directors who have actually recommended these packages. So we are still evolving, Senator Brown, because your party and my party through constant pressure were able to force this non-binding remuneration vote on the previous government. This is an evolving process, and it is going in the right direction, but we need to continue to make the point that it has not gone far enough yet. A combination of what we are doing here and the consequences that are continuing to flow from that original decision on the non-binding vote are all excellent and we should not knock what we have done and helped to achieve in the past. Yes, I would agree with you, it has not gone as far as you and I would want it to at this stage in terms of disciplining the market by the owners, the shareholders, but it is starting to get to that point when major corporations are getting 42 per cent votes and, in Telstra’s case previously, overturning decisions by rejecting them. But we need to get to a situation where directors know that if they are going to be faced with that sort of shareholder revolt—more than or close to 50 per cent—then their time to face the shareholders is coming as well.
We are now moving into an epoch of sanctioned obscenity through the inaction of the government. The Productivity Commission has been given this reference. It is a pity it was not an independent tribunal looking at it. We are going to get a response in December after parliament has stopped sitting, so off we go from the Prime Minister’s lament about these big salary packages in 2008 to no result until some time in 2010 minimum, and you watch it waft out long after that. We have studied inaction, if you ask me. The Greens welcome this legislation but it is nowhere near far enough. It highlights the inaction on the obscenity of the pay and the pay packages, the likes of which we have seen even during the financial crisis, and it puts across to average shareholders their responsibility to be organised and pit themselves up against the power of the big investors. There is no reason why the government in the public interest and the shareholder interest ought not be setting the limits within which CEO salaries, including these golden parachutes, should be set. However, it is a debate we will keep pitching up to the government because it is reasonable and responsible to do so, even if we do not get a result on it here today.
Question put:
That the amendment (Senator Bob Brown’s) be agreed to.
by leave—I move amendments (1) and (2) in my name on sheet 5890:
(1) Schedule 1, page 6 (after line 32), after item 14, insert:
14A After section 200B
Insert:
Other benefits in connection with managerial or executive office
(1) An entity mentioned in subsection (2) must not give a person a benefit in connection with a person’s (the manager’s or executive’s) office, or position of employment, in a company or a related body corporate if:
(a) the office or position is a managerial or executive office; and
(b) the benefit is of a kind specified in subsection (3);
unless there is member approval under section 200E for the giving of the benefit.
Note : The recipient of the benefit need not be the manager or executive.
(2) The entities are as follows:
(a) the company;
(b) an associate of the company (other than a body corporate that is related to the company and is itself a company);
(c) a prescribed superannuation fund in relation to the company.
(3) The benefits are:
(a) benefits relating to performance or bonuses, however described; and
(b) benefits connected to appointment or engagement of a person, however described;
where the sum of those benefits in any year exceeds, or is capable of exceeding, the amount of the manager’s or executive’s annual base salary.
(4) In this section:
give a person a benefit includes propose to give a person a benefit contingent on a condition or conditions being met.
superannuation fund means a provident, benefit, superannuation or retirement fund.
Note 1: The heading to Part 2D.2 is altered by omitting “termination payments” and substituting “termination and other payments”.
Note 2: The heading to Division 2 is altered by omitting “termination payments” and substituting “termination and other payments”.
(2) Schedule 1, item 19, page 7 (after line 17), after subsection 200E(1), insert:
(1AA) For the purposes of section 200BA, the conditions set out in subsections (1B) and (2) must be satisfied for there to be member approval under this section for the giving of the benefit.
These amendments deal with approval for benefits other than retirement benefits, specifically performance bonus and sign-on payments which exceed or might exceed one year’s annual base salary. This is aimed at ensuring corporations are not able to find loopholes by which to grant golden hellos to escape the restrictions this bill will place on golden handshakes. The thrust of these particular amendments is that there is a concern amongst some commentators that the legislation in its current form could allow for corporations to find a creative way around the intent of this legislation by loading up benefits when they sign someone on. Those contractual arrangements for instance may say, ‘You will get a termination payment or a payment on your leaving the company of a significant amount well in excess of one year’s base salary.’ But because it is structured in such a way contractually, it could be a loophole in this legislation. These amendments are intended to deal with that potential loophole in the legislation. I know the minister, Senator Conroy, is no doubt riveted by what I am saying and I would like to hear from him in terms of what safeguards there are, in the absence of this amendment, to ensure that corporations will not find a creative way around the intent of this legislation.
Thank you, Senator Xenophon, I am always captivated by your contributions. The proposed amendments would have the effect of introducing a binding shareholder vote for sign-on payments and performance bonuses whereas, currently, such payments are subject to a non-binding shareholder vote. This would represent a fundamental change to the director’s role and the capacity to manage the company. There would also be significant practical difficulties and costs associated with requiring a shareholder to vote prior to each executive or director being appointed to the company.
Termination benefits, however, are a unique component of remuneration which warrant greater shareholder scrutiny and approval, particularly as the company and shareholders generally derive little or no value from such payments. In addition, I note that the effectiveness of the non-binding vote on the broader components of executive remuneration is currently being considered by the Productivity Commission, which as I mentioned earlier, has a report due in December. In its draft report the commission noted some of the difficulties associated with making this vote binding. I think there is some commentary there. The government will await the Productivity Commission’s final report before deciding how to proceed on the issue. On balance, the government therefore does not intend to support these amendments though I certainly commend you on the sentiment of your contribution.
Following on from Senator Conroy’s statement of not supporting these amendments, can Senator Conroy indicate what advice the government has been given about the potential for companies to try to circumvent the intent of this legislation in the context of using a golden hello, so to speak, rather than a golden handshake? Has that been considered by the government? If not, why not? If it has been considered, does the government concede that there is a potential for companies to try to circumvent the spirit and the form of this legislation?
Can I say that we are guided by the question of practicalities more than the substance of what you are suggesting. I think, as I mentioned in my last contribution, there is a growing scrutiny by shareholders, the owners of companies, to actually express their view about corporate excess. As I said, we are guided by the practicality issue. The point you are making I am not actually necessarily disagreeing with—
Did you get advice about loopholes?
The advice that I believe we received is that there is no loophole. In terms of the sentiment of what you are expressing, could I say that the point I made in my last contribution to Senator Brown is that the non-binding vote and the issue of directors who agree to excess not being dealt with by their shareholders is something that still falls short in this country. Directors who agree to bonuses whether they are currently in the non-binding parts of this or in golden hellos equally are also up for election. Shareholders and commentators that you describe who object to golden hellos have a very simple remedy. I agree with you that they are not yet showing the courage to follow up.
It is the same point I made to Senator Brown. Once a remuneration committee of a corporate in this country demonstrates it has lost touch with reality by agreeing to massive payouts or massive golden hello sign-on bonuses then it is time for the shareholders to express their views by voting against the re-election of said directors. It is only at that point, when the first director is actually voted down because of their role in a remuneration package, that the real message will go out to corporate Australia about corporate excess. I am all for that day coming fast. You might, if you wanted to be unkind, say that the chair of the remuneration committee of Telstra is not seeking re-election in the forthcoming Telstra annual general meeting. You may say the informal process of easing that individual off the board for having had a massive vote against it is working and some might say that that was how it should work in the corporate world. Personally, I think shareholders should have indicated upfront that they were not willing to support a board member who proposed that package and put shareholders in that sort of position. But until we get the clear and unambiguous statement from institutional investors that they are prepared to vote against directors who engage in handing out excessive, obscene salary packages, we will not have fully reached shareholder participation and shareholder democracy in this country.
So I think a lot is happening in this field. Has it gone far enough? I say the same thing I said to Senator Brown: no, but we are going in the right direction. We need debates like this. We need to understand that, while Australia has come out of the global financial crisis significantly ahead of all other countries in the world, it is because our governance of our financial institutions has been better. Our ASICs, APRAs and other corporate governance structures in this country have been better. Are they perfect? No, but that is why we need to take steps like this and that is why we need the Productivity Commission report to come.
There is no question that there is still much more to be done. But for those who want to oppose Senator Xenophon’s sentiments in the future, which includes every person on the other side of this chamber, the way for this to be resolved is for the corporate community to take the matters in hand themselves and for institutional investors to stand up to the club and stand up to the directors, sending a message: if you do not want greater, tighter, more onerous regulation—which they all say they do not want—start acting with some self-restraint. Start exercising the powers available to you in the re-election of directors in boards. If you want to avoid the parliament introducing more and more regulation in this area, start behaving responsibly and exercise your fiducial duties by knocking over directors involved in these sorts of obscene handouts.
I support Senator Xenophon’s amendment.
The coalition opposition will not be supporting the amendments. We have, of course, previously expressed concerns that eliminating golden handshakes will only result in golden hellos, as Senator Xenophon has alluded to, whereby executives will access—
You voted for them. You voted for golden—
Excuse me. Can I just finish my submission? Thank you. The committee did refer to that. In respect of these amendments, which are amendments (1) and (2), which provide for approvals for sign-on agreements and so on, we simply do not see this as a practical way in which the issue identified by Senator Xenophon can be addressed. For those reasons, we will not be supporting them.
Question negatived.
I seek leave to move Australian Greens amendments (3), (4) and (5) on sheet 5858 revised together.
Leave granted.
My advice is that you can certainly put those three amendments together and talk about those three amendments, but we will put (3) and (4) in one question and amendment (5) in a separate question.
That is very logical, in case we get ‘yes’ mixed up with ‘no’. Thank you. I move Greens amendments (3) and (4) on sheet 5858 revised:
(3) Schedule 1, item 19, page 7 (line 23), omit “a resolution”, substitute “a separate resolution”.
(4) Schedule 1, item 20, page 8 (lines 1 and 2), after “details of the benefit”, insert “(including the maximum dollar value of the benefit)”.
The Greens oppose item 22 in schedule 1 in the following terms:
(5) Schedule 1, item 22, page 8 (lines 19 and 20), subsection 200E(2C) to be opposed.
The first of these will ensure that shareholders vote on a resolution that deals only with the matter of termination pay. The Greens are moving that amendment because otherwise it will be possible for companies to combine a vote on an unsavoury termination package with another, more popular issue and therefore, in total, obtain the support they need from shareholders, who will have to play off very different matters within the one motion from the directors.
Amendment (4) is to ensure that shareholders will vote on the maximum dollar cap of the termination payment if the decision is made to provide more than one year’s base pay rather than just give approval for termination pay above 12 months base salary, as is currently required in the bill. This was a recommendation in the economics committee report, and so I am bringing that forward. This amendment will ensure that shareholders know exactly how much termination pay they are being asked to vote for. One would have thought that would be a very important, informative and empowering thing to ensure shareholders had.
The third, somewhat different provision here is the removal of the provision that would allow regulation to override proposed section 200E(2A), which provides executives who are also shareholders in their companies from participating in voting on their termination payment. I am not sure why the government wants to retain the regulatory power. Regulations, as you will know, have a parliamentary override, but nevertheless there would be the regulatory power to override the provision that retiring executives cannot vote for their own termination package, a provision that obviously ensures that executives who are major shareholders cannot manipulate the vote in their favour. On this occasion, the Greens amendment will ensure that senior executives are not given an overriding power by a future government or parliament. Although understanding that a future parliament can do what it wishes, we should lay down at this stage that it is very clear that there is no intention to reverse the legislation as it stands, which does not give that option to executives.
Family First has similar amendments coming up that mirror what has been put forward by the Greens here, so we will be supporting these amendments because, in essence, they are the same as the ones that Family First has as well. To make it really clear, it makes sense to ensure that, if you are going to have a resolution put forward on termination payments, it does not get clouded or influenced by other issues. For example, a company may be seeking shareholder approval for a merger or something, and there may be something else in there hidden somewhere. The shareholders may be happy with the merger but not with the termination payments, but wedge politics are being played with shareholders.
So, just to make sure that shareholders can make a decision on a termination payment on its own merits and rights, this would make sure that there is a separate resolution put forward to shareholders on termination payments. This is a logical amendment and it does make sense. I do not believe it is going to frustrate anyone. I think shareholders would like to vote separately on termination payments rather than having it clouded with other issues. It could be that there is a vote on a merger. The shareholders might be quite happy to have a merger but not happy with the termination payments. If the two things are lumped in together, it makes it very difficult for them to be taken apart.
The other amendment being put forward is about payments above the amount of 12 months base salary. I think shareholders would like to know the amount by which the payment will go above that amount rather than just giving an open chequebook to the executives of the company to do as they please. Termination payments are an important issue, so I think shareholders would like to know how much they are going to go above the limit of 12 months base salary. The other amendment is about regulation and the overriding possibility down the track, and I think that needs to be closed off as well. Family First supports these three amendments. As I said, they mirror, or are very similar to, the Family First amendments.
I indicate my support for the Greens amendments and for the thrust of the Family First amendments in relation to having separate resolutions.
The opposition will not be supporting these amendments. We are wary of any unintended consequences of the amendments. We do appreciate some of the good intentions in relation to this legislation, but there are some questions on the practical application—that is, how it would work. Indeed, as I understand it, some of these provisions were excised from the government’s exposure draft. In any event, rather than take up the chamber’s time, I indicate that the coalition will not be supporting the amendments.
With respect to the disclosure of the maximum dollar value of the benefit to shareholders prior to the vote, there are existing legislative provisions which will provide an appropriate framework for shareholders to decide whether or not to approve a termination payment above the threshold. Section 200E of the Corporations Act requires the details of the termination benefit to be set out in, or accompany, the notice of the meeting that is sent to shareholders prior to the shareholder vote. The details of the benefit must include the amounts of the termination benefit or, if the amount cannot be ascertained by the time of disclosure, the manner in which that amount is to be calculated and any matter, event or circumstances that will, or is likely to, affect the calculation of that amount.
In terms of the Family First amendment, any requirement to hold a separate resolution is likely to increase compliance costs for companies while providing shareholders with little or no additional benefit. Senator Fielding and Senator Brown, I think both of you are drawing a spotlight to the potential for abuse. If companies started to behave in this way, I think they would be asking for further intervention from the parliament. So I think you are shining a light on a possibility which, were it to actually rise, would be reprehensible. I think companies that behave that way should be dealt with by their shareholders. But, more importantly, they would invite the sort of amendment that you are talking about here. Let us hope common sense prevails. But, if it does not, I would expect you and perhaps others to come forward and say: ‘It’s time to act. They have shown their willingness to behave badly. They haven’t taken a commonsense approach.’ That said, I indicate that we will not support either of these amendments.
The government are saying: ‘We’ll leave open the potential for bad behaviour, but woe betide company directors who take it because there could be action somewhere down the line. That action is available here, it is being brought forward by the crossbench, but we are not going to take it.’ What a message that gives to the corporate sector! It says: ‘We’re going to waffle, we’re going to prevaricate. We’ll think about it. Maybe we’ll send something else to the Productivity Commission.’ Company directors must be trembling in their boots!
The question is that amendments (3) and (4) on sheet 5858 revised be agreed to.
Question negatived.
The question is that item 22 in schedule 1 stand as printed.
Question agreed to.
Family First amendments (1), (2) and (3) on sheet 5926 are no longer required. I will come back to amendments (4) and (5) on sheet 5926 later on.
by leave—I move amendments (3) and (6) on sheet 5890:
(3) Schedule 1, item 20, page 8 (line 2), before “must”, insert “and the circumstances of the separation”.
(6) Schedule 1, page 8 (after line 6), after item 21, insert:
21B After paragraph 200E(2)(b)
Insert:
; and (c) the circumstances of the separation, including:
(i) whether the person has resigned, retired or been terminated, etc.; and
(ii) the reason for the resignation, retirement, termination, etc.
These amendments require the disclosure of the reasons for an executive’s departure. Too often shareholders are told that an executive is ‘retiring’, only to discover in the remuneration report later that year that they were in fact terminated, more likely than not as a result of poor performance, and their payout therefore was effectively a golden handshake. Shareholders deserve to know what the company they are investing their family savings in is doing with their funds, and when multi-million dollar amounts are being payed out they deserve to know why. This will strengthen the government’s legislation because shareholders ought to have a right to know the basis upon which an executive is departing.
I would like to quickly say I support these amendments. They are practical; it does make sense to give reasons, and therefore Family First supports these amendments.
I indicate that we oppose these amendments. On the face of it, yes, the reason for departure often does relate to performance. It also has the potential to be incredibly intrusive, and there must be some vestige of privacy left for people who leave for perfectly legitimate reasons not to have those paraded before the world. We think in all the circumstances, and on balance, it is not something that we feel comfortable supporting.
There are some practical difficulties with distinguishing between the reasons for a person’s departure as part of the regulatory framework, as it will often be very difficult to ascertain the real underlying reason for the termination. Telstra is a case in point. Did Sol really retire early or was he really pushed out the door and sacked? Who knows? He still had three months to go.
You tell me.
I cannot speculate, and I am not sure any amount of investigation to try and determine that issue will ever get to the truth. I can guess, but I am just not sure that we would ever get to the truth. As the Australian Council of Superannuation Investors has noted in its submission to the recent Senate committee inquiry on this bill, there is some difficulty in distinguishing whether executives retired or were terminated. I do not think the intent of what you are trying to achieve is a bad thing at all, in fact I think it is very worthwhile. But I do not know whether in practice we are ever going to actually be able to get to the truth. So we will not be supporting the amendments. But, as I said, I can only admire your motives.
I thank the minister for his comments. I put this to the minister: does he concede that there are circumstances in which a company fundamentally misleads shareholders by making an announcement a few months earlier, saying that the person is retiring for some particular reason and then a few months later the truth comes out—whether it is at the AGM—that in fact it was a termination due to poor performance? Does the minister concede, firstly, that there can be circumstances where shareholders are misled or the public at large is misled? Secondly, if you concede the potential for that, will the government be looking further at this to actually try and ensure that companies have an onus not to mislead the shareholders and the public at large?
I doubt your example, mainly because I doubt that the truth would ever come out at an AGM. That would be a first. I think that perhaps there is a continuous disclosure obligation on the company and if they have been misleading their shareholders that is actually a serious issue. If they have misled and misinformed the market, that is actually a serious issue. There is always rumour, innuendo or speculation. Was Sol pushed? I have had plenty of people tell me he was pushed. Should he then have received his retirement benefits by going early? As I said, I have had many people speculate.
What do you think?
I have had many people speculate, Senator Xenophon, but the truth is I do not think I will ever find out the truth. In the sort of circumstance you are describing, in the Telstra-Sol case we can all smile and laugh, as three months was probably not going to change the world. But in more substantive circumstances I think there is a Corporate Law existing obligation for the market to be kept fully informed and the truth to be told, not a corporate cover-up. So I think there are existing mechanisms in the law to deal with this. It is just that no-one has chosen to want to lift the corporate veil and take on this sort of debate. But, as I said, I admire your sentiment.
It seems we are having the dance of the seven corporate veils on this one. I cannot seem to get a straight answer. I want to make it clear that I think the minister is doing his best, given the constraints of the current legislative framework. But can I put it on notice for the minister to undertake to advise whether the current continuous disclosure provisions would actually apply in circumstances such as this? If I could have a considered response in due course or in due season, by the end of the year, I would be quite pleased to get that.
I myself will also be interested in the answer to those questions, so I am happy to take those on notice and see what further information the Treasurer can supply. I think they are very worthwhile questions.
Question negatived.
Senator Xenophon, I assume in light of this that you are not going to move amendments (4) and (5), or do you still wish to move them?
These amendments deal with a maximum money value specified in the benefit details to be approved by shareholders.
It has been canvassed.
It has been canvassed but it is a separate issue.
Do you still wish to move those amendments?
by leave—I move amendments (4) and (5) on sheet 5890:
(4) Schedule 1, page 8 (after line 4), after item 20, insert:
20A Subparagraph 200E(2)(a)(ii)
After “calculated”, insert “, the maximum amount which may be calculated,”.
(5) Schedule 1, page 8 (after line 6), after item 21, insert:
21A Subparagraph 200E(2)(b)(ii)
After “calculated”, insert “, the maximum money value of the benefit which may be calculated,”.
These amendments will simply require a maximum money value to be specified in the benefit details to be approved by shareholders. This will, in effect, provide that a maximum cap of the total package, including the payout, bonuses and shares, given to an executive on their departure cannot exceed the amount as voted on by shareholders where it might exceed one year’s base salary. So it is a different concept—it is related—but it is a separate concept.
We have canvassed these issues and the government was not prepared to support similar Family First and Greens amendments. The issues were largely covered in that last debate and I indicate that the government will not be supporting them.
We are of the view that the arrangements in the Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009 on resolutions of general meetings are sufficient to determine what a termination payment is for and what it is not for. The level of transparency regarding such payments to executives and directors is appropriate. Companies will be required to disclose that a termination payment has triggered a shareholder vote and will therefore require a decision. Once again, we think that the bill’s provisions provide a good level of transparency and guidance for shareholders when making those sorts of determinations.
Question negatived.
The Greens supported those last four amendments moved by Senator Xenophon. I seek leave to now move Greens amendments (2) and (6) together on sheet 5858 revised.
Leave granted.
I move:
(2) Schedule 1, item 19, page 7 (line 14), omit “and (2A)”, substitute “, (2A), (2D) and (2E)”.
(6) Schedule 1, item 22, page 8 (after line 20), after subsection 200E(2C), insert:
Fourth condition
(2D) The fourth condition is that a general meeting that considers such a resolution must not have been called for the sole or dominant purpose of passing the resolution.
Fifth condition
(2E) The fifth condition is that approval of such a resolution at a general meeting must not occur until the retiree has ceased to hold the relevant offices or positions.
These amendments, if passed, would mean that a shareholder meeting cannot be called for the sole purpose of voting on termination payments. Secondly, the final decision on the payment of a termination package is made after the relevant executive has left the company, so the payment would be based on actual performance, not anticipated performance. The two provisions, by the way, were originally contained in the exposure draft of the Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009 released by the minister last May. They seemed sensible in that the approval for termination pay after the departure of the executive ensures that decisions are based on actual performance. The provision regarding shareholder meetings ensures that companies cannot manipulate their shareholders by calling inconvenient and expensive meetings. The question to the government is: how come these excellent proposals from government suddenly disappeared from this legislation? What was the consultation process with business that has led to them being kiboshed? We are seeking to amend them and I would like to have that explanation at least from the government before it votes down what were its own proposals back in May.
Currently, a shareholder vote may be held at any time before the benefit is paid. The Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009 was originally drafted to change the timing of a shareholder vote to post termination. However, during the consultation process stakeholders identified several practical difficulties with holding the vote after termination. The government was responsive to stakeholder concerns and retained the status quo. In particular, feedback from stakeholders suggest that this amendment would create uncertainty and affect the negotiation of new contracts as any termination benefits in excess of one year’s base salary would be dependent on shareholder approval, that is, adequately designed termination benefits that would have been agreed in advance could not be offered with certainty unless they were below the threshold of one year’s base salary; have the effect of prohibiting termination benefits in excess of one year’s base salary as shareholders would be unlikely to approve the termination benefits, no matter how legitimate, some time after employment has ceased and reasonably delay access to retirement benefits, redundancy payments and compensation for the loss of income and employment by up to 12 months; delay shareholders’ decisions which may cloud their judgment with issues beyond the control of the departing officer, particularly where market conditions or shareholdings have changed; and increase the need for former directors or executives to obtain an order of a court to receive a termination benefit in excess of one year’s base salary. Therefore, the government considers it appropriate to retain the status quo which allows the vote to be held at any point prior to the termination benefit being given. Retaining the current voting requirements will maintain the primary objective of the legislative amendments, which is to provide shareholders with a greater ability to vote on termination benefits given to company directors and executives. As such, the government does not support the amendments.
Will the minister tell the committee which stakeholders consulted the government to have it change its mind?
We do not have that information readily at hand, Senator Brown. I am happy to gather as much information as I can and pass it on to you.
It would be good if the minister took it on notice and gave it back to the committee or to the Senate.
I would be happy to.
I was interested in the comment about clouding the judgment of shareholders. I am interested to know which shareholders thought their judgment would be clouded by removing the provisions, as the government did. Obfuscating the intended outcome that CEOs or directors may be having may be wanting and, therefore, the deliberate clouding of the judgment of the shareholders is what is at play here in removing these draft exposure amendments which the Greens are now putting forward. They are excellent amendments and I have heard no argument coming from the government that it did not have before 5 May for removing them. I would be interested to hear who the stakeholders were that had this ability to alter the government’s intention in the way that we are now seeing.
Minister?
I took that more as a commentary rather than a question. I think Senator Brown is pleading guilty to that.
Question negatived.
I move Family First amendment (4) on sheet 5926:
(4) Schedule 1, item 31, page 10 (after line 25), after subsection 200F(4), insert:
(4A) Despite subsections (2), (3) and (4), subsection 200B(1) applies to a benefit given in connection with a person’s retirement from offices or positions in the company and related bodies corporate if the value the benefit, or the value of all such benefits, given in connection with the person’s retirement exceeds $1 million.
This amendment puts forward a trigger point to make sure that shareholders have to vote on a proposed termination payment above $1 million. It is not a cap; it is a trigger point. It does not mean that there cannot be payouts above the $1 million mark, but it is a trigger that says that any payment above $1 million needs shareholder approval. This allows more scrutiny. It allows shareholders to have a say on termination payments above the $1 million trigger. It does not say that they cannot pay more—we do not want to get confused; this is a trigger point. That means that shareholders have to have their say. If you ask the mum-and-dad shareholders most would prefer to have a trigger point of $1 million, which at least allows more scrutiny, more pressure, to make sure that excessive termination payments will have more focus put on them.
We believe it is fair and reasonable to expect any termination payment over $1 million to be put to a shareholder vote. This means companies will have to specify what the payment will be so they cannot simply write a blank cheque. I think it is only fair, given the amount of public concern about excessive termination payments. You have to realise that if this legislation goes through without this $1 million trigger you are basically giving approval to multi-million-dollar payouts without shareholder approval. Such payments still may be within the 12-month base salary. This amendment is to make sure that shareholders have a say on payments above the $1 million trigger. I think the current legislation gives shareholders only some say in termination payments, but $1 million is surely a good level for a trigger to invoke shareholder approval for termination payments. I do not want to hear any talk in the chamber about it being a cap: it is a $1 million trigger to ensure that shareholder approval is needed for any termination payment above this mark. I recommend this amendment to the chamber as being more than reasonable. I think most would find that it makes sense to have a $1 million as a trigger point, not a cap, for a shareholder vote.
We canvassed a similar amendment from the Greens a little earlier. I appreciate there is bit of competition in that corner of the chamber.
It is not the same item—it is a trigger, not a cap.
Yes, it is probably more onerous. I am talking about the general, overwhelming competition in your corner, Senator Fielding. There is nothing wrong with competition, as you well know. We have massively reduced the cap, massively reduced the trigger point—I do not mind which word you want to use to describe it—from seven years to one year’s salary. We think that is a good balance. We appreciate your sentiment, in the same way we appreciate the genuineness of Senator Brown’s and the Greens’s comments. Family First and the Greens would like slightly different thresholds. We have gone through a process, we have consulted and we are comfortable we have landed in an appropriate spot. We would like to see how that goes: people could feel it is still excessive, depending on what evolves from it. We still need shareholders to stand up. Many institutional investors have been caught up in conflicts of interest, are doing business with the banks, other companies, and have the same sort of interrelationships that blighted Australia in the 1970s and 1980s, when all the corporates were on each other’s boards protecting each other. That web of interconnections and business relations still exists in a slightly modified form. As I said, what we need in this country is shareholder activism to stamp out corporate excess. This is a significant, major improvement. We accept the legitimateness of your arguments, from both points of view, and that we could go further, but we think that this is the appropriate balance. We will not be supporting this amendment.
I briefly indicate my support for Senator Fielding’s amendment. I think the trigger is appropriate. I note that Senator Conroy talked about competition here on the crossbenches, but I can assure Senator Conroy that we are already structurally separated: as long as that it is understood. Competition is a good thing.
And we are all in favour of competition. I support Senator Fielding’s amendment and note—
I’m not sure if I can cope with this outbreak of bonhomie between the Greens and Family First! It’s more than I can cope with.
I usually have a friendly attitude towards the creations of Labor, Senator! That having been said, this is a sensible amendment. The problem here is that the government concedes it is a sensible amendment but keeps knocking them down. Senator Fielding’s amendment empowers shareholders and enlightens the public generally, but it appears that the government and opposition are not going to entertain that sort of expansion of the good intention of this legislation today.
I should just indicate that the coalition does not subscribe to a trigger or a threshold such as that proposed, of $1 million. We prefer a proportional approach which is principles based. Notwithstanding the exuberant self-congratulation on the part of the government, we will not be supporting the amendment.
It is a pity that the government and the coalition are not separated on this particular amendment, either functionally or structurally! But it is a very important issue. I will get back to the crux of it. Let us say an executive has a $3 million 12-month base. The government’s legislation will mean that the executive can get paid a termination payment of $3 million as well, or $2½ million, before the trigger sets in. Family First are saying, ‘Let’s amend the legislation so that, if an executive is going to be getting a termination payment above the $1 million trigger, then shareholders will have to have a say on it.’ I will make it quite clear: under the government’s legislation at the moment, if it gets through without this $1 million trigger, multimillion-dollar termination payments will continue unabated.
There is public outcry on this issue of multimillion-dollar termination payments without shareholders having a say. Such payments will continue under this legislation unless this $1 million trigger proposed by Family First is put into the legislation. I think it is more than reasonable that, when you get a termination payment of $1 million and above, shareholders should have their say. This is about empowering shareholders, giving them a greater say. I am trying to work out why the government still wants to allow multimillion-dollar termination payments. I ask the minister: will the government’s legislation still allow multimillion-dollar termination payments? Can he respond to that? Under the current legislation, unamended so far, will multimillion-dollar termination payments still be allowed to proceed without any shareholder vote?
The government’s threshold, not capped, is to allow payments of one-year’s salary. So, if there are salaries that are greater than the amount you are describing, then I am assuming the answer is yes. But this is a massive increase—and I am not going to let you get away with pretending this is not a massive increase—in shareholder empowerment and shareholder democracy. That is exactly what this is. I accept your in-principle argument: ‘Why isn’t it this way?’ Well, the government has chosen to move to the one-year salary position. But, let me be clear, this is a massive and undeniable increase in shareholder participation and empowerment. To borrow a phrase from a former Prime Minister: as much as you might want to run to the top of the Empire State Building, put a brick on top and say, ‘I built the Empire State Building’—because that is really what you are doing here—this is a massive increase in shareholder participation and empowerment. I am not going to stand by and let you try and suggest that that is not what this government is doing in the chamber today.
I will not hold up the chamber any longer on this issue. I just want to say that multimillion-dollar payments will still continue under this legislation.
Question put:
That the amendment (Senator Fielding’s) be agreed to.
Progress reported.
by leave—I want to confirm advice I provided to the leaders of the parties in the Senate regarding changed representative arrangements given the absence of three ministers at various times this week. Senator John Faulkner, Minister for Defence, will be absent today from question time. I will handle his Foreign Affairs responsibilities and Senator Ludwig will be responsible for his portfolio of Defence and Veterans’ Affairs. Senator Sherry will be away for the whole week in his role helping to chair the Pacific Islands Forum. During his absence, Senator Conroy will represent him in all his economic portfolios and Senator Carr will represent him in relation to the Agriculture, Fisheries and Forestry portfolio. On Thursday, Senator Wong will be absent. I will represent her Climate Change, Water and Status of Women responsibilities. Senator Ludwig will represent her on Attorney-General’s and Home Affairs, Senator Faulkner on Environment, Heritage and the Arts and Senator Carr on Tourism. As I say, it has been circulated to party leaders and I formally table the document.
My question is to Senator Ludwig, the Minister representing the Minister for Health and Ageing. On average, every day in Australia 35 women are diagnosed with breast cancer and seven women die from the disease. The Australian Institute of Health and Welfare predicts more than 15,000 Australian women will be diagnosed with breast cancer in 2015. In light of the statistics released today, national breast cancer day, will the national breast cancer screening program be expanded to include the recommended age groups of 45 to 49 and 70 to 74 and invite them to participate in the program?
I thank Senator Adams for her question. If you look at the statistics, BreastScreen Australia is one of the best breast cancer screening programs in the world. The program reduced the mortality rate in the 50 to 69 age group by between 21 and 28 per cent. In addition, participation rates increased from 51.4 per cent in 1996-97 to 56.2 per cent in 2004-05. Estimated spending on breast cancer screening by all governments was $133.9 million. It is an important program and BreastScreen Australia is one of the best breast cancer screening programs in the world. Since 1991, the Commonwealth has been working with the states and territories to provide free biennial mammograms to women aged between 50 and 69, with women aged from 40 to 49 years and over 70 also eligible to attend.
Going to the issues raised in the question, an important study led by Dr Helen Zorbas from the National Breast and Ovarian Cancer Centre demonstrates the effectiveness and value of BreastScreen Australia. Dr Zorbas and her team of local and international experts conducted the first comprehensive evaluation in the world of a population based breast screening program. The report found that the program was well accepted by women, was broadly accessible and was cost effective. On the issue of participation, the report found that the program was well accepted by women and that participation by women in the target group increased from 51.4 per cent in 1996-97 to 56.2 per cent in 2004-05. (Time expired)
Mr President, I ask a supplementary question. What is the government doing to attract more people to the radiography profession to fix the problem of a shortage of radiographers, which is now impacting on the national breast screening program?
I thank Senator Adams for the supplementary question. The Rudd government have moved to address some of these capacity issues highlighted by the report and areas where the program can be improved, such as increasing the participation of Indigenous women. It is not only about ensuring that we get more participation. On radiographers and capacity issues, there is the $120 million investment in this year’s budget to replace BreastScreen’s outdated equipment with state-of-the-art mammography equipment. We are about ensuring that we have up-to-date equipment for use by BreastScreen Australia and to that extent $120 million has been invested. The expert committee provided us with 19 recommendations to improve, better target and expand the program. (Time expired)
Mr President, I ask a further supplementary question. The first $10 million of the $120 million that has been allocated for new digital mammography machines is due to be expended this financial year. Has any of this money yet been spent on new machines? If not, when is this going to start?
As I indicated, the expert committee provided us with 19 recommendations to improve, better target and expand the program. On the broader issue of how much has been spent to date, this is a question I will need to take on notice to refer to the Minister for Health and Ageing.
From February of this year, the government introduced Medicare rebates for MRI scans for women under 50 at risk of breast cancer with no symptoms. The federal, state and territory governments are jointly considering the options presented in the report that I mentioned earlier. Of course, the recommendations will be discussed further at the Australian Health Ministers Conference in November. BreastScreen is an important program and I can assure all senators it will continue—
Mr President, I rise on a point of order going to relevance. The $120 million was a budget measure, and I ask the minister: has any of this money been spent on the new machines and, if not, when is it going to start?
I draw the minister’s attention to the question.
As indicated at the outset of the question, I will take that part of the question on notice. As there is a new part to the question asked in the supplementary question— (Time expired)
My question is to the Minister for Innovation, Industry, Science and Research, Senator Carr. Can the minister inform the Senate about the research projects to be funded by the Australian Research Council, the ARC, beginning in 2010? How many projects will be funded and what is the total value of the funding? What is the breakdown by ARC scheme and what is the particular focus of the schemes involved? How are the projects chosen, and what are the selection criteria? What problems will the research address and what specific benefits is it expected to deliver for Australian families, communities and industries?
I thank Senator Carol Brown for that question. This morning I had the pleasure of announcing the latest round of projects to be funded under the Australian Research Council’s National Competitive Grants Program. One thousand, one hundred and forty-five outstanding projects will receive funding totalling $394 million. This breaks down into $325.5 million for 925 fundamental research projects under the Discovery Projects scheme, $66.8 million for 211 cross-sectoral research collaborations under the Linkage Projects scheme and $1.8 million to support the work of nine Indigenous scholars under the Discovery Indigenous Researchers Development scheme.
Competition for this funding has been fierce. The successful projects have been tested in the crucible of peer review and have been judged to be the very best. Each addresses a significant challenge in an innovative way. Each will yield new knowledge to the world and lasting benefits to the nation. Many of the projects to begin next year will address the biggest challenge of our time—namely, that of climate change. Others will focus on improving life at work, improving the way Australians learn, making communities safer, improving our environment, improving our health and closing the gap in knowledge and understanding between Indigenous and non-Indigenous Australians. Hundreds of the projects that we have announced today will improve the performance of today’s industries and lead to the development of new technologies that will underpin the industries of tomorrow. These are great projects and a great part of the Australian tradition of invention and discovery. I trust the opposition supports them.
Mr President, my first supplementary question to the minister is: can the minister inform the Senate how the funding announced today under the Australian Research Council’s National Competitive Grants Program will promote Australian research in the humanities, arts and social sciences, bearing in mind that the Council for the Humanities, Arts and Social Sciences is staging its annual HASS on the Hill event in and around Parliament House this week? What kinds of HASS research are being supported? Has the overall level of support for these disciplines increased? If so, by how much? What are the success rates for applications in these disciplines, and why is the research so important?
The Australian Research Council is supporting a host of projects in the humanities, arts and social sciences—from a study of the emotional responses to music that improve music teaching methods to a study of how we can improve the wellbeing of emergency service workers. Compared to the same Discovery Projects round last year, funding for the humanities and the creative arts has increased by 10 per cent and funding for the social sciences and the behavioural and economic sciences has increased by 17 per cent. Success rates have also risen from 19.5 per cent to 24.9 per cent for the humanities and from 21.7 per cent to 22 per cent for the social sciences. The humanities, arts and social sciences have a critical part to play in solving the great challenges we face as a nation as well as enriching the lives of all Australians.
Mr President, I ask a further supplementary question. Can the minister explain to the Senate what action the government is taking to ensure that the economic benefits of research funded by the Australian Research Council and other research undertaken in Australia flow through to the Australian community? What progress has been made on implementation of the Commercialisation Australia initiative announced in the 2009-10 budget as part of the government’s Powering Ideas innovation agenda? What specific forms of support will Commercialisation Australia provide, how widely did the government consult on the design of this support, and what will it achieve?
It is essential that we turn more great Australian ideas into jobs. Commercialisation Australia will take a radically new approach to bringing local ideas to global markets. Starting in early 2010, it will accelerate the translation of research results into moneymaking goods and services by leveraging private sector capital and expertise. It will give innovators access to case managers, specialist advice and services to build skills, knowledge and connections and grants of up to $250,000 for proof-of-concept activities. It will also provide repayable funding of up to $2 million for early stage commercialisation activities.
The support to be provided by Commercialisation Australia was decided in consultation with more than 250 stakeholders across sectors and across the country. It will ensure the economic benefits of Australian— (Time expired)
My question is to the Minister representing the Attorney-General, Senator Wong. I refer the minister to the evidence of Australian Federal Police Commissioner Negus in Senate estimates on 19 October, in which he confirmed that the Australian Federal Police periodically compiles a report entitled Strategic intelligence forecast: transnational criminal trends and threats to Australia, the most recent edition of which was finalised on 27 March 2009. Is the Attorney-General aware of the contents of that report and in particular the warning within the report that: ‘Reporting indicates that people smugglers will market recent changes in Australia’s immigration policy to entice potential illegal immigrants. This may cause a rise in the number of attempted arrivals’?
I note, Senator Brandis, that this was an issue traversed in estimates in some detail. I think it was after—
So you will be full bottle on it?
More than you will be.
You were full bottle on a lot of things recently, weren’t you? You were full bottle. Godwin gave you the full bottling. Don’t you ‘full bottle’ us.
Honourable senators interjecting—
Order! When there is full order, we will proceed. Senator Wong, continue.
This is an issue, as I was saying, that was traversed in estimates when Senator Ludwig was representing the Attorney-General and the Minister for Home Affairs. This is also an issue which has been the subject of a question in the House. As Senator Brandis would know because he was in the estimates hearing and also because I assume he does—
Are you going to give us an answer or are you just going to—
Are you going to listen?
I assume that Senator Brandis is aware of what occurs in the other place. The Minister for Home Affairs was asked almost exactly this question or a question in very similar terms in the other place. As the commissioner confirmed in Senate estimates while being questioned by Senator Brandis, the intelligence report had never been provided to ministers. Indeed, he stated that the report was an operationally focused document and it would be inappropriate to provide it to ministers. Given that, I find it somewhat unusual that Senator Brandis asks a question to which he has already received the answer both in estimates and in the context of answers provided in the other place.
Mr President, I ask a supplementary question. Did the government make any assessment of the likelihood of increased boat arrivals in response to proposed changes to immigration policy? If this result was obvious to the AFP, why was it not obvious to the government?
As Senator Brandis well knows, government does not comment on intelligence as a matter of policy, and that was the case when those opposite were in government. In relation to the specific issue, that question has been asked and answered both in estimates and in the other place. In relation to the broader issue of border protection, I would remind Senator Brandis that the government has taken measures both in the previous budget and subsequently to combat people smuggling. Some $654 million was announced in the budget, and since September of last year there have been, for example, some 85 disruptions of planned smuggling ventures to Australia by the Indonesian national police. I also make the point that, according to the UNHCR, there were an estimated 42 million forcibly displaced persons worldwide at the end of 2008. (Time expired)
Mr President, I ask a further supplementary question. Will the government now admit that it failed to assess the threat to Australia’s border security and wider humanitarian migration program when it weakened its policy last year? Why did the government fail to make itself aware of the evidence touching on this matter available from its own agency?
Again, there is a lot assumed in that question, Senator Brandis, in order to make a political point. We are dealing with a policy challenge that has faced and continues to face governments around the world. We have a policy that is tough but also humane. We have invested, as a government, record amounts in both surveillance and interception. As I said, this is a challenge that not just Australia but also many countries around the world are facing. I again remind those opposite—I know they might want to make political points on this issue—that there were some 42 million forcibly displaced persons worldwide at the end of 2008, including 15.2 million refugees. In 2008 there was an 85 per cent increase, for example, in the number of Afghan asylum seekers claiming protection in industrialised countries worldwide. This is a global problem. The government is serious about tackling this problem. We have invested significant amounts both in the previous budget and subsequently. (Time expired)
My question is to the Minister for Broadband, Communications and the Digital Economy and consumer champion, Senator Conroy. Can the minister inform the Senate of the statistics that were released by the Telecommunications Industry Ombudsman last week which show a 54 per cent increase in consumer complaints in the telecommunications sector?
I thank Senator Farrell for that excellent question. As I said yesterday morning when asked about these latest consumer complaints statistics, they are a shocker. Increasing consumer complaints in the telecommunications sector is an issue that has been worsening for some time. The TIO reports that in the 2008-09 financial year complaints increased by 54 per cent. This follows annual increases in complaint statistics over a number of recent years. The most recent statistics show that, while the highest increase in complaints was among mobile phone users, which reflects the variety of services offered through mobile phones, traditional landline services are still the basis for a large proportion of complaints. There was also a 57 per cent increase in internet related complaints and a 40 per cent increase in landline related complaints. This is simply not good enough.
There are, of course, a number of contributing reasons for these worsening trends, including technology upgrades and the inadequacy of existing regulatory arrangements. But the government is not sitting on its hands while the telco industry continues to treat its consumers with contempt; rather, the government is putting pressure on the industry to lift its performance. I have put the industry on clear public notice. The government will have little choice but to regulate if the situation does not improve. A number of initiatives have either been implemented— (Time expired)
Mr President, I ask a supplementary question. Can the minister advise the Senate of the actions the government is preparing to take to correct these rising consumer complaint issues? Also, how will the recently announced reforms to the existing telecommunications regulatory regime improve competition in the sector and strengthen consumer safeguards, therefore addressing some of the very issues we see worsening in the latest consumer complaint statistics?
At present, the state of competition in the telecommunications sector is just ineffective. In its most recent analysis of this issue, in a report to parliament, the ACCC has said:
While the process of competition, new entry and investment has, to a limited extent, eroded the dominance of Telstra Corporation (Telstra), the incumbent still retains enduring and substantial market power, restricting the extent to which end users of telecommunications services can fully reap the benefits of the dynamic process of competition and innovation.
A number of initiatives to address these very concerns have been either implemented or are underway to address the high level of complaints. One includes the government’s regulatory reform package, which will see competition in the telecommunications sector improved and consumers and businesses will benefit through lower prices. (Time expired)
Mr President, I thank the minister for his answer and have a further supplementary question. Can the minister indicate to the Senate the impact that the delay of these regulatory reforms until after the implementation study will have on the performance in the telecommunications sector, including outcomes for consumers and businesses?
I note that those opposite argue that we should delay debate and consideration of the regulatory reform package. Each day we delay reforms is a day of higher prices and less choice for consumers and businesses, including those in rural and regional Australia. Every day we delay these reforms is a day we fail to start to claw back the poor customer service levels and service quality performance in telecommunications across Australia. As an alternative, we could enjoy the 163rd press release from Senator Minchin, without a single policy alternative, not one—in 163 and counting. Alternatively, we could rely on those opposite to continue to let Telstra write the rules, because that is exactly what happens with the USO right now—Telstra writes the rules. (Time expired)
My question is to the Minister for Immigration and Citizenship, Senator Evans. Given that there have now been 45 illegal boat arrivals—yes, one a couple of hours ago—since Labor substantially eroded our border protection policies, and given Ms Gillard’s own words, ‘One more boat, one more policy failure,’ I ask: does Labor admit that they have had 45 policy failures since eroding our strong border protection policies? How many boats will it take to get Labor to finally acknowledge their policy failure?
I thank Senator Fierravanti-Wells for her question. What I would say firstly is that we have had boat arrivals in Australia for 25 of the last 33 years. The only sustained period when we did not have boat arrivals was a period during the Hawke government. When people were fleeing Vietnam after the fall of the regime there, we had boat arrivals. When people were fleeing Indochina, we had boat arrivals. Around the 1990 to 2001-02 period, when people were fleeing Afghanistan, we had boat arrivals. When people were fleeing Saddam Hussein, we had boat arrivals.
This is an ongoing international problem that this government is treating seriously and attacking methodically with strong border security measures and a range of international initiatives designed to stabilise populations, prevent people moving through the region and provide appropriate outcomes for them in transit countries, in their home country or in destination countries. We are working very closely with our international neighbours. We reinvigorated the Bali process—quite rightly initiated by the Howard government. They realised how important that cooperation was and they jointly chaired with Indonesia the Bali process. We reinvigorated that following the failure to have any ministerial engagement in that process from 2003 onwards.
So, yes, there is the challenge of unauthorised boat arrivals at the moment. That activity has increased, in line with the sort of activity we have seen in Europe and other Western democracies, and we are working cooperatively with our neighbours to try to meet this challenge.
Mr President, I ask a supplementary question. The International Organization for Migration, the Office of the United Nations High Commissioner for Refugees and the asylum seekers themselves have all said publicly that Labor’s policy changes have contributed to the increase in people smuggling. When will Labor stop the rhetoric and admit that they got it wrong?
Those opposite like to have a very insular view of the world, but it is interesting to look at the charts of irregular people flows throughout the world and to see the similarity you find across nations. What you will see if you analyse the movement of Afghan people across the world is that the trend line of those arriving in Europe and the trend line of those arriving in Australia are almost mirror images of each other. They peaked at the time of the Taliban government and began to fall after the fall of the Taliban government. They were not actually considering domestic policies in Australia when the Taliban were setting out to murder them. It was not their biggest consideration. There are much bigger factors at play in the irregular movement of people around the world than minor policy changes in Australia.
Mr President, I ask a further supplementary question. At estimates last week, the Ambassador for People Smuggling Issues said:
We haven’t actually sat down with the Indonesians yet to negotiate what this framework will look like and what forms our support will take.
Doesn’t this just show Labor has no solution to the border protection chaos it has created and is now clutching at straws?
I do not quite understand the question. What the Prime Minister announced last week was an extension of people-smuggling cooperation between Indonesia and Australia. Under the Lombok Treaty, we will extend the framework of cooperation that has existed for many years, that was in place under the Howard government and that we have continued and expanded previously. What we are looking at is broadening the range of areas in which we cooperate. We will encourage Indonesia to deal with irregular movement through its borders but we will provide support to them in dealing with the costs of housing those people and providing access to asylum seeker processing by the UNHCR. It is an extension of a long, ongoing relationship that provides proper processing in safety for people seeking asylum in our region.
My question is to the Minister representing the Prime Minister, Senator Evans. Once the Oceanic Viking reaches the Indonesian port today, what processes have been agreed to for escorting the 78 asylum seekers off board? If they refuse to leave, will Australian officials allow the Indonesian police to come on board and forcibly removed them?
I thank the senator for her question. The overwhelming focus of the Australian government is the safety and wellbeing of the passengers on board the Oceanic Viking. We are doing everything we can to support them and their health while looking to disembark them in Indonesia. As I understand it, at the moment the Oceanic Viking is anchored off the coast of the island of Bintan and final arrangements are being made in negotiation with Indonesia for the disembarkation.
The government is working closely with those passengers to try to ensure that the disembarkation occurs in an orderly manner and in a manner which encourages them to then be taken to temporary accommodation and, if they wish, to seek access to international organisations. It is clearly the preference of everybody involved that the passengers will disembark and will, as I say, go to temporary accommodation and then be supported by international organisations. We are confident that those arrangements will be put in place shortly and that we will see safe passage of these people, who were rescued by Australian authorities in the Indonesian search and rescue zone in order to make sure that they were safe. We have entered into arrangements with Indonesia to bring them ashore in Indonesia. That process is current. I do not have any more details about the current organisational matters because it is an ongoing operation, but we are trying to ensure that they are disembarked safely and with their cooperation. I can report that the hunger strike has ended. (Time expired)
Mr President, I ask a supplementary question. I thank the minister for his answer, but could he please provide a more sufficient and direct answer to the question relating to whether ‘encouragement’ of people disembarking from the boat means that Australian officials will allow Indonesian police to board and forcibly removed them?
I indicated to the senator that we are attempting to have the Australian Customs vessel dock and safely offload the passengers into the care of Indonesian authorities and make sure that they then go to temporary accommodation and have access to international organisations that will provide support. I obviously cannot run a commentary on what possible scenarios may or might not occur during disembarkation. There is no doubt that we have seen via the action of some of the men on board who staged a hunger strike that they may well not be happy with the idea of disembarking in Indonesia, but it is our intention to have them disembarked there. Obviously between us and the Indonesian authorities we seek to manage that while having their safety and wellbeing as our major priority.
Mr President, I ask a further supplementary question. What agreement does Australia have with Indonesia about future interceptions of boats in international or Australian waters? Where will these people be taken? Is it now government policy that all boats found in international waters will be taken to Indonesia?
I think I need to first of all correct the assumptions in the senator’s question. This boat was not intercepted. It sent a safety-at-sea distress call—a call for help. The Indonesian authorities received that call and asked us if we could send a naval vessel to provide assistance because we could get there first. We went and provided that support to that safety-at-sea call and we arranged with the Indonesians for them to be disembarked in Indonesia. The boat was in international waters but in Indonesia’s search and rescue zone. So this was not a question of an interception and a return to Indonesia; it was a question of taking on board people whose lives were at risk while in international waters. It is the case that we are encouraging Indonesia to disrupt people-smuggling activities on land and sea in their zone— (Time expired)
My question is to Senator Ludwig, representing the Minister for Defence. More than a week ago, 78 suspected illegal immigrants were transferred from their vessel to the Australian Customs vessel Oceanic Viking with the assistance of personnel from HMAS Armidale. Were any members of HMAS Armidale or any other Australian Defence Force personnel also transferred to the Oceanic Viking to assist in maintaining the safety and security of the civilian crew, a P&O crew, the Border Protection Command personnel and the suspected illegal immigrants on board the Oceanic Viking?
I thank Senator Johnston for his question. The information I can provide is that on 16 October 2009 Border Protection Command advised the Australian Maritime Safety Authority of an unidentified vessel, with approximately 70 to 80 people on board, in distress and taking on water. Border Protection Command was initially notified of a potentially distressed vessel by Headquarters Northern Command, following an anonymous call to a Defence telephone switchboard. The vessel was reported in a position of about 440 kilometres south-east of Padang, Indonesia, and this position is within the Indonesian search and rescue area.
Some of the detail of your question goes across three or four different areas. With regard to dealing with individuals, I can add that the HMAS Armidale’s boarding party noted that the integrity of the vessel had been compromised, but I will need to take on notice issues surrounding some of the detail in the question, which seems to go to operational matters, to ensure that Senator Faulkner can provide an appropriate response.
In respect of the obligations around search and rescue regions, as I indicated, they are essentially a convenient way of dividing the world’s ocean space to make one state responsible for coordinating rescue efforts within a particular search and rescue region. Of course, dealing with the area of obligations, it is a clear duty of the assisting vessel in this instance to proceed with all possible speed to render assistance, unless unable to do so due to special circumstances.
Senator Abetz interjecting—
I hear some interjections from the other side, but I indicated earlier—
Mr President, I rise on a point of order. Twice in his question, Senator Johnston used the term ‘suspected illegal immigrants’. I ask you to look at that in conjunction with standing order No. 73, which says that questions shall not contain arguments, inferences or imputations, and to either make a ruling now or report back to the Senate.
I will make the ruling now, Senator Brown. The question was not out of order.
Mr President, I ask a supplementary question. I thank the minister for his answer. Where are these suspected asylum seekers to be landed and why were they not landed at the first available and nearest port of opportunity, as the international protocols on asylum seekers decree?
I thank Senator Johnston for his question. As I understand the nub of the question, it goes to the role of the Department of Defence and the HMAS Armidale. The potential unlawful noncitizens were transferred to the ACV Oceanic Viking on 19 October 2009 for processing and transportation. As I understand it, it is a matter for, and it is currently being negotiated between, this government and Indonesia. It is intended that they be transported to a port in Indonesia and it is expected that that transfer will take place in the short term. In terms of the detail of the Oceanic Viking’s role, it now appears to be—at least from this brief—outside the Defence portfolio. If there is any part of that question that I can add to, I will seek— (Time expired)
Mr President, I ask a further supplementary question. Will Defence and border protection marine personnel on board the Oceanic Viking assist the Indonesian police or authorities in removing any of the 78 illegal immigrants from the Oceanic Viking and will they assist with the use of force if necessary?
Mr President, I rise on a point of order. I again take umbrage at the terminology ‘illegal immigrants’ and I again ask you to rule on whether that is consistent with standing order No. 73.
Consistent with what I have ruled previously, Senator Brown, the question is in order.
The Australian government is of course looking for the orderly and safe removal of those persons on board the Oceanic Viking. In my first answer, I indicated that I would take that on notice because I was unaware of the composition of people on board the Oceanic Viking. Therefore, that will also fall to the third question, your second supplementary question. I am unaware of what role the Department of Defence plays and whether it has a role in relation to the Oceanic Viking. I will take that part of the question on notice.
My question is to Senator Wong, the Minister representing the Minister for the Status of Women. Minister, as I am sure you are aware, today is Pink Ribbon Day, which is designed to improve awareness of breast cancer in our community. I notice that many people here are wearing pink ribbons today and I think that is great. Minister, can you outline to the Senate the serious impact that breast cancer is having on Australian women and on our community in general?
As I think all senators are aware, today is Pink Ribbon Day. Every year, during Breast Cancer Awareness Month, Pink Ribbon Day provides a significant opportunity to promote key awareness messages about breast cancer in Australia. There are a great many functions, in particular the popular annual Pink Ribbon Day breakfasts, which have been held across Australia this morning, to raise both funds for and awareness of breast cancer, which, regrettably, takes the lives of more than 2½ thousand Australian women each year.
As we all know, cancer can strike anyone, and Pink Ribbon Day is a way in which we can help raise awareness of breast cancer. Breast cancer is the most common cancer diagnosed in Australian women. More than one quarter of all cancer diagnosed in women is breast cancer and over the next 12 months, I am advised, approximately 12,000 women will be diagnosed with the disease. I note that Senator Adams, who asked a question earlier today in part in reference to this issue, cited figures which were higher—I think that was a figure of some 15,000. This indicates that this is a very significant problem in Australia and one that we need to remain vigilant on and need to continue to raise awareness of. Regrettably, breast cancer is exacting a heavy toll on our community.
Australia as a nation does have a strong track record of managing breast cancer. We now have a five-year survival rate of 87.8 per cent, compared to a survival rate of 71.8 per cent in the mid-1980s. That is a significant improvement but we still have further to go. Internationally Australia rates as having one of the best cancer care systems in the world. The government has been a strong supporter of breast cancer initiatives and is working hard to provide both patients and their families with the support that is needed during the extremely difficult time associated with any diagnosis of breast cancer and the subsequent treatment. (Time expired)
Mr President, I ask a supplementary question. I ask the minister: what is the Rudd Labor government doing to support breast cancer initiatives?
My colleague Senator Ludwig, on behalf of the Minister for Health and Ageing, in response to Senator Adams’s earlier question, has outlined some of the responses; and I might go through some further examples. The government has committed some $12 million to the McGrath Foundation for the recruitment, training and placement of 44 breast care nurses across Australia, and, I understand, some 43 have already commenced employment. We have introduced a program to reimburse for external breast prostheses for women who have had a mastectomy as a result of breast cancer, with $31 million in funding, and in February we announced a new Medicare rebate for a MRI scan for women under the age of 50 who are asymptomatic and at high risk of breast cancer. I think my colleague Senator Ludwig also referred to the $168 million for the breast cancer drug Herceptin. The government is also supporting special initiatives and programs with the National Breast Cancer Foundation, the National Breast and Ovarian Cancer Centre and the Breast Cancer Network Australia.
Mr President, I ask a further supplementary question. In addition to the support that the minister has outlined, has the Rudd Labor government committed to support any projects, programs or initiatives targeted at supporting Australian women in rural areas?
Amongst the government’s support for breast cancer initiatives is a $2.7 million program between the NBOCC—that is, the National Breast and Ovarian Cancer Centre—and the BCNA, the Breast Cancer Network Australia, to improve support and care for women in rural areas diagnosed with breast cancer. This is the first time the two peak breast cancer bodies have worked together in such an arrangement. Improving access to care and treatment for rural and regional Australians is a key priority for the government, which is why we are investing some $560 million to establish a network of regional cancer centres across the country. Public consultation on the draft guiding principles for these regional cancer centres has recently been concluded, and the tender documentation is currently being finalised by the Department of Health and Ageing. The government will announce the opening of applications by the end of November. We all know there is still much more work to be done to help beat breast cancer. The government is working hard with clinicians, researchers and key stakeholders as well patients to provide world-class treatment and services. (Time expired)
My question is to Senator Carr, the Minister representing the Minister for Agriculture, Fisheries and Forestry. By what stroke of negotiating genius did the Australian government manage to negotiate a 30 per cent reduction in Australian tuna quotas when the rest of the world—including Japan, which has admitted to overfishing by 100,000 tonnes—have decided on a 20 per cent cut in their quotas?
I thank the senator for his question. The advice that I have from the Minister for Agriculture, Fisheries and Forestry is that Australia is working closely and cooperatively with other members of the Commission for the Conservation of Southern Bluefin Tuna to ensure there is a concerted international effort to balance the rebuilding of southern bluefin tuna stock with continuing to secure economic benefits to Australia from its harvest. Southern bluefin tuna is highly migratory and much of the catch is taken by distance-water fishing fleets operating on the high seas and in waters outside Australia’s direct control. Rebuilding the southern bluefin tuna stock is the shared responsibility of all the members of the Commission for the Conservation of Southern Bluefin Tuna. The Australian government, in consultation with stakeholders, is of course prepared to meet its obligations. Claims of a 30 per cent reduction in the Australian take are incorrect. That is a figure that some in the industry are using. It is not a figure that in fact accurately reflects Australia’s share of the reductions in the quotas required to meet the international targets.
Mr President, I ask a supplementary question, after that quite extraordinary response. Does the government’s complete lack of support for the southern bluefin tuna industry based in Port Lincoln indicate that the government supports the previously stated position of Mr Peter Garrett, the Minister for the Environment, Heritage and the Arts, when, as Chairman of the Australian Conservation Foundation, he said he ‘does not support the ongoing commercial targeting of southern bluefin tuna’?
The government will carefully consider any employment issues associated with the outcomes of the Commission for the Conservation of Southern Bluefin Tuna.
Mr President, I rise on a point of order. This is simply embarrassing. My question was about the government’s support for the industry; he has simply raised the issue of employment, which has nothing to do with my supplementary question.
On the point of order, Mr President: Senator Carr has been answering the question. Senator Carr has been dealing with this issue. This is an important issue. He has been responding to the question asked. What we now have is a frivolous point of order raised by Senator Bernardi because it seems to be an issue that he wants to get in the media. Unfortunately for him, Senator Carr is answering the question accurately and directly.
Honourable senators interjecting—
Order! When there is silence on both sides I will proceed. Senator Carr, you have been going 11 seconds in your answer to the first supplementary question. I draw your attention to the question.
I was specifically asked about Port Lincoln and I have indicated the government is carefully considering any of the employment issues associated with the outcome of the decisions of the Commission for the Conservation of Southern Bluefin Tuna. The government wants to see a profitable southern bluefin tuna industry continue in Australia for the long term. It is important for jobs and it is important for regional economies. Australia’s national allocation for the 2010-11 fishing season will be an average of 4,015 tonnes per year. This represents a 25 per cent reduction from our catch in the 2009 fishing season of 5,265 tonnes. The catch reduction will see Australia’s national allocation remain the largest actual share of global— (Time expired)
Mr President, I ask a further supplementary question. Will the minister please tell us exactly how many jobs will be lost in Port Lincoln as a result of the 25 per cent reduction in southern bluefin tuna quotas announced at last week’s meeting of the Commission for the Conservation of Southern Bluefin Tuna in South Korea? Further, what assistance measures does the government propose to help the Port Lincoln community adjust to the drastically lower quotas, given that Australia was proposing a cut in its submission to the commission?
I remind the senator that, if international action is not taken now, the entire southern bluefin tuna industry could collapse, which would have a devastating impact on the Port Lincoln economy. The government will now work with the industry to determine how the reductions would be spread over two years. The government, I repeat, will also carefully consider any employment issues associated with the outcomes of the international conference decision. The government wants to see—and I repeat this, Senator, and I trust the opposition wants to see this as well—a profitable southern bluefin tuna industry continue for years to come. It is important for jobs in South Australia. It is important for regional economies. You cannot simply put your head in the sand on this issue and pretend there is not a major difficulty for the supply— (Time expired)
My question is to the Minister for Employment Participation, Senator Arbib. Can the minister inform the Senate of the findings of the final Keep Australia working report? In particular, can the minister provide details of how the global recession is impacting on the Australian labour market and details of government action to date? In doing so, can the minister also explain recent changes to the Jobs Fund to support young people entering an apprenticeship?
Thank you, Senator Furner, for that question and also for your support of employment. Can I confirm to the Senate that the government’s main focus continues to be keeping people employed during the global recession. We know that over the past 12 months 150,000 Australians have lost their jobs, which is a tragic shame. Unfortunately, at the same time, a third of those people who have lost their jobs are young people, under the age of 25, which is also a tragic result of the global recession. The Senate will note that the economy needs to create 18,000 jobs—
Honourable senators interjecting—
Order! Resume your seat, Senator Arbib. When we have silence on both sides we will proceed.
We know that for those on the other side of the chamber, the Liberal Party, jobs are not a priority. The only jobs they are worried about are their own jobs, so when you talk about the jobs of Australians they are totally ignorant of what is going on out there in the community. The Parliamentary Secretary for Employment, Jason Clare, and I have travelled around the countryside talking to communities at risk from the global recession. We have provided a report to the Deputy Prime Minister, the Minister for Employment and Workplace Relations, outlining our recommendations and also our findings.
One of the very, very worrying aspects of the global recession has been the effect on trade apprenticeships. Commencements of apprenticeships have collapsed by 23 per cent, and the government has decided to take action. The Jobs Fund was created as part of the stimulus in this chamber, and I want to thank again the Greens and also Senator Fielding for the work they did. After discussions with Senator Fielding and the Greens, it was decided that $100 million in the Jobs Fund should be redirected to supporting apprentices—a tripling of the commencement bonus to employers to assist them with supporting apprentices during the summer period.
Mr President, I ask a first supplementary question and I thank the minister for that positive response. Can the minister provide further details to the Senate regarding Apprentice Kickstart Bonus? In particular, can the minister explain how employers are able to access the increased bonus for taking on school leavers in traditional trades over summer this year? Why has the government decided to implement this new measure?
As I was saying, there is a tripling of the commencement bonus, which will support 21,000 apprenticeships during these difficult days. I know that employers hate red tape, so here is some good news: there will be no new paperwork for employers to get Apprenticeship Kickstart Bonus. Employers will receive the extra payments without any additional red tape. Can I say there has been a great deal of support within the sector and within industry. Wal King, the President of the Australian Constructors Association, said:
The measures … are thoughtful, well-timed and well-directed and the Government should be congratulated.
Shane Goodwin from the Housing Industry Association welcomed the apprenticeship kickstart:
… the time to be investing in apprenticeships is precisely now so that we might soften the impact of skill shortages when the industry moves into recovery.
Wilhelm Harnisch from the Master Builders Association said that the kickstart would fill the skills shortage in the industry and that the MBA would ‘strongly encourage’ it to members. (Time expired)
Mr President, I ask a further supplementary question. Can the minister inform the Senate of what industries have said regarding the announcement of Apprenticeship Kickstart? Is the minister aware of any comment from members of the opposition regarding Apprenticeship Kickstart?
Thank you again for the question. As I was saying, Heather Ridout, from AiG, said that Apprenticeship Kickstart is ‘a well targeted and timely measure which will boost apprenticeship commencements’. As usual, though, the Liberal Party do not really care about jobs and do not really care about training. True to form, their employment participation spokesperson went straight out and said on ABC Radio: ‘The problem here is that the government is not creating jobs. They are putting people on a training treadmill—training for training’s sake.’ That is what he said. How out of touch the Liberals are!
Senator Bernardi interjecting—
These are apprenticeships and yes, Senator Bernardi, these are jobs. An apprenticeship is a job. That is the Liberal Party—they could not care less about jobs. (Time expired)
My question is to the Minister for Broadband, Communications and the Digital Economy, Senator Conroy. I refer to the Business Council of Australia’s infrastructure report, released today, which raises serious concerns about the government’s NBN proposal and again calls for a detailed cost-benefit analysis to be conducted as part of the NBN implementation study. I ask the minister: how can the government possibly justify its refusal to conduct a cost-benefit analysis of its $43 billion spending proposal despite its own election promise to submit all federally funded infrastructure projects to a full cost-benefit analysis?
The Rudd Labor government understands that we need to invest in high-speed broadband infrastructure now—not in 11½ years time, but now. We need the benefit for the Australian economy in the short and the long term. We believe that all Australians, no matter where they live or work, deserve to have access to high-speed broadband. This need will only become more critical for people over time.
I note reports today about comments made by the Business Council of Australia, which Senator Minchin is basing his question around, in relation to Australia’s infrastructure priorities. We welcome the BCA’s report as an important contribution to the debate on infrastructure in this country—an issue which was almost completely ignored during the previous government’s 11½ years in office. It was not completely ignored by some members of the National Party, who did some hard work and policy analysis which was completely ignored by Senator Minchin and Senator Coonan.
Order! Shouting across the chamber is disorderly on both sides. When we have silence, we will proceed.
I remember the Senate estimates where I questioned Senator Coonan about whether the government of the day had even asked the department—her department of the day—to examine the Page Research Centre’s report. Do you know what the answer was? ‘No.’ There was no interest. But back on April 7, when the government announced the way forward for the NBN, the Business Council of Australia said:
Investment that raises the speed, quality—
(Time expired)
Mr President, I ask a supplementary question. I ask the minister: who is correct—the minister for finance, Mr Tanner, who claims that there are too many unknowables about the NBN to bother with conducting a cost-benefit analysis, or the Business Council of Australia, which properly criticises the government for announcing a $43 billion major project without any supporting analysis?
As I was mentioning, back on April 7 the Business Council were quoted as saying:
Investment that raises the speed, quality and coverage of high-speed broadband provision in Australia has the potential to contribute to productivity and economic growth in the coming decades.
How did they know that? Did they have a cost-benefit analysis to make that assessment? No, they did not. The BCA describe the NBN decision as:
… one which provides leadership and a road ahead—
for the telco sector.
Mr President, on a point of order: Senator Conroy’s microphone is not on and I was wondering if we could leave it that way.
That is not a point of order.
They said:
… which provides leadership and a road ahead for the telecommunications sector and for users of broadband services.
On what did they base that assessment? Did they do a cost-benefit analysis? No. I also note that, in the BCA’s report today, it recommends that the government use the NBN implementation study to assess and settle the way forward with the NBN. (Time expired)
Mr President, I ask a further supplementary question. Will the government commit to the public release of the NBN implementation study, as urged by the Business Council?
The Business Council went on to say:
The way forward is to use the implementation study currently underway to determine the right approach to broadband investment by the government and others.
That is exactly what we are going to do. The NBN is undoubtedly a detailed and complex project. The government is conducting a detailed implementation study to work through the issues such as, amongst other things, the operating arrangements, ownership and structure, and ways to attract private sector investment. As my colleague Mr Tanner said, there are many long-term unknowables—
Mr President, on a point of order: the minister has now taken forty-something seconds not to answer the very specific question: will he publicly release the implementation study report. Could he answer that question in the 16 seconds remaining?
There are 16 seconds remaining. I draw your attention to the question, Minister.
The NBN will not just provide high-speed broadband internet services. Let me be clear. The implementation study examining a variety of issues— (Time expired)
Mr President, I ask that further questions be placed on the Notice Paper.
In response to Senator Johnston’s question that was asked today, I am advised that there were no Defence personnel on the Oceanic Viking.
Are you tabling something?
No, I am just providing that advice.
Pursuant to standing order 74(5), I ask Senator Ludwig, the Minister representing the Minister for Health and Ageing, for an explanation as to why answers have not been provided to questions on notice Nos 2043 and 2044 asked on 28 and 29 July this year.
I note Senator Cormann’s request under order 74(5)(a). I have received a letter from Senator Cormann to that effect. I am not sure what time it came in but I can advise the senator that Minister Roxon’s office have advised me that they have not as yet finalised the answer. It should be done very shortly. We do take the period very seriously and we will ensure that in future we will endeavour to meet the deadline of three months. In this instance, as I understand it, it was an explanation as to why question Nos 2043 and 2044, in relation to the use of Avastin and Lucentis medication for the treatment of macular degeneration, remain unanswered. In that respect, I have indicated that that has been brought to the attention of Minister Roxon and we look forward to providing an answer to that shortly.
I move:
That—
The questions I asked are directly relevant to one of the budget cuts which the Senate will have to deal with this week, specifically in relation to the Rudd government’s announce-ment on budget night that the government would cut the rebate for cataract surgery by 50 per cent. It is a very ill considered and short sighted budget cut. It is one which will hurt patients and will force those in need of access to this particular surgery into the public system. It is a budget cut that will lead to terrible health outcomes.
We went through this issue in some detail during Senate estimates last week. I asked questions of the health department officials as to whether the department had consulted any ophthalmologists and whether there had been any attempts to work through how this MBS rebate cut would work through the system. Mr Kingdom, from the Department of Health and Ageing, took the question and said:
I will take this. It was a budget decision, Senator. But since then the minister invited the ophthalmologists to put alternative views up if they felt that this was an incorrect approach—
Which of course they have. But Mr Kingdom told the Senate estimates committee—
… and they have failed to really negotiate or discuss any alternative—which is really in contrast to what happened with assisted reproductive technology, where we did have a very productive negotiation with the people there …
A lot of the ophthalmologists took serious offence at this particular statement. The Minister for Health and Ageing, Nicola Roxon, has tried, in her usual way, to demonise a group of Australians while trying to sell a particular agenda of the Rudd government. She has been out there pointing at the ‘rich’ ophthalmologists who, in her view, are making too much money and saying that that is the reason to cut this particular rebate. We have an official of the Department of Health and Ageing who says nobody came forward with any suggestions as to how we could achieve savings in a particular, more sensible, way. But the reality is that those ophthalmologists who have contacted me over the last few days have pointed out that they actually made three very specific and very constructive suggestions. One of them relates to a proposal to save, in their view, about $100 million a year through allowing Avastin to be covered under the 42740 item number on the MBS schedule to allow patients to get a reimbursement for treatment of macular degeneration, and I understand that this proposal was discussed both with the Treasurer, Wayne Swan, and the Minister for Health and Ageing.
As it turns out, I actually asked a whole series of questions in relation to exactly that particular proposition, all the way back on 28 and 29 July. That is nearly 90 days ago. This is an issue which has serious implications for a vulnerable, mostly elderly, group of Australians who need access to this sort of treatment to help prevent falls, hip breakings and a whole series of other negative health consequences that could be prevented with access to proper treatment. All the minister can do is pursue this cold hearted budget cut. While the Rudd government are increasing spending everywhere else, they are cutting spend-ing in the health portfolio. In particular they are cutting spending in relation to healthcare services accessed by those Australians who take additional responsibility for their own healthcare needs through the private system. Seventy per cent of this cataract surgery across Australia is provided through the private system, which is of course why this ideologically driven government is so enthusiastic about pursuing this particular budget cut.
I asked a series of questions that deserve some answers before we have to deal with this and I will just take the Senate through them. Bear in mind that this cataract rebate cut is due to take effect this weekend on 1 November. At this point those regulations have not been tabled in the Senate. They were tabled in the House of Representatives last week, but here we are talking about a 50 per cent cut in the rebate that is payable to Austudy-ralians in need of access to this particular treatment. We are four days from when that particular budget cut is due to take effect and still the government has not tabled those regulations here in the Senate. That is a disgrace. The government still has not answered questions which go directly to an alternative proposal on how some savings could perhaps be made and which it seems the gov-ernment does not appear to have pursued at all. Some of the questions that I asked included whether the minister could confirm that her:
… department received a Royal Australian and New Zealand College of Ophthalmologists working party recommendation that it is clinically appropriate to use medications such as Avastin and Triamcinolene to treat blinding conditions as part of an intravitreal injection 42740...
That is the MBS item number. Then I asked what the government minister is doing about it. Why does it take the minister more than the 30 days allocated under our standing orders to provide an answer to a very simple question like that? Can somebody explain to me why the minister cannot answer a very specific question such as, ‘Have you received that advice; if you have received that advice, what are you doing about it?’ That is pretty straightforward.
The next day, on the 29 July, I put in a series of further more detailed questions. I was interested to know whether it was true that the government had allocated $200 million per year for Lucentis in the 2009-10 budget and that each injection for treating macular degeneration using that particular drug costs around $2,000 per vial. How hard is it to answer that question? Either it is allocated in the budget or it is not allocated in the budget. Either it does cost $2,000 per vial or it does not cost $2,000 per vial. I asked:
Is the Minister aware of research and international clinical practice that indicates Lucentis and Avastin provide an equivalent clinical outcome for patients with macular degeneration.
I suspect the minister is aware. Why doesn’t she just say yes. Why does it take 90 days to provide a yes—full stop—answer? I asked:
Has the department, the Therapeutic Goods Administration or the Pharmaceutical Benefits Advisory Committee (PBAC) considered this international experience and research, or done any other investigation as to whether Avastin would deliver an equivalent clinical outcome for patients with macular degeneration as Lucentis at a lower cost; if not, why not.
I suspect that this is where it is starting to get more complicated for this minister because she is quite happy to go for the easy, lazy budget cut—reducing an MBS rebate item by 50 per cent and accusing doctors of earning too much money, even though she is not proposing to do anything about doctors’ fees. All she is proposing is to reduce the rebate for the patient while doctors’ fees will continue to do whatever they do—increasing the out-of-pocket expenses for patients in need of access to this particular service, making it harder for them to get access to this and pushing them into the public system that is already overburdened. She is pushing them into the public system where this particular procedure costs more than $3,500 to provide. Here we have a Rudd Labor government which is happy to save $313 by cutting a particular rebate in half, pushing it into the state and territory run public system where the same procedure costs taxpayers $3,500-plus to provide free of charge. What is the logic in that? The minister is not even prepared to answer questions on an alternative savings approach which has been put forward in good faith by the ophthalmologist profession. I will go through some more questions:
Is the Minister aware that Avastin was recommended by New Zealand’s Pharmaceutical Management Agency (PHARMAC) for use in patients with macular degeneration.
That is an easy one again. I am sure the minister could just say yes—full stop. Why does it take 90 days to answer that question? The next part of the question is:
Has the department examined the experience in the United States of America (US), and specifically, is it correct that in the US Avastin is now used twice as often as Lucentis to treat macular degeneration.
The minister should know these sorts of things, and if she does not know these sorts of things she should give her job away. She should go to the Prime Minister and say: ‘I am not up to it. Every time a budget cut is pushed through by the big boys—you, the Prime Minister; the Minister for Finance and Deregulation; and the Treasurer—and I am sent out there to sell the line, I am hung out there to dry. I am not able to stand up for the patients across Australia in their need to get timely and affordable access to quality health care. I am not up to it and I cannot answer very simple and specific questions, so please give somebody else my job’. The next question is:
What would be the cost (per vial) for an injection of Avastin for the treatment of macular degeneration in Australia.
All somebody in the department would have to do is pick up the phone and they will be told that it is about $20. I can get that answer now, but I would like to know what the minister knows. Here we have one drug which costs about $2,000 and another drug which on the face of it—according to practice and research in other parts of the world—delivers the same clinical outcome and costs $20. This is the basis on which ophthalmologists have argued that there is scope here to save about $100 million per annum.
Instead of responding to these questions, we had officers of the department as late as last Wednesday telling a Senate estimates committee, ‘Oh well, sadly those ophthalmologists did not come forward with any constructive suggestions on how we could achieve savings in a more responsible way’. It seems to me that they did, but it seems as if the minister is sitting on her hands yet again and not doing anything to achieve efficiencies in a way that does not hurt patients. Of course, she has form on that. The next question which remains unanswered is:
Has the department or the PBAC considered the savings that could be made through the use of Avastin to treat macular degeneration; if not, why not.
That is again a simple yes or no answer. If it is yes and they have considered it, that is great. If it is no, then clearly we would like a one-sentence explanation as to why that is. Next:
These are questions that were legitimately put forward on 28 and 29 July. It is nearly 90 days later and still, to this day, the minister has not come back with a proper response to these questions.
We are four days away from a savage budget cut which will hurt elderly Australians in need of access to cataract surgery—four days from it coming into effect—and the Senate is about to make a decision as to what should happen with that particular cut, yet the minister still has not provided us with an answer in relation to these questions. I think that that is just not good enough.
What do we have instead? Instead, the government is pressing ahead with the 50 per cent cut in rebates for cataract surgery. As I have already mentioned, that cut does nothing to reduce doctors’ fees. The government actually conceded in Senate estimates last week that the government does not have the power to direct doctors in terms of their fees. It does not. All the minister is proposing to do is to push up the cost for patients, many of whom, of course, will no longer be able to afford access to this life-changing procedure through the private system.
The Managing Director of Medibank Private, last week at Senate estimates, told us, ‘Oh, well, as a result of these cuts to these MBS items, our rebate will reduce by $290 as well.’ That is because health funds link their rebate arrangements to the MBS schedule. Here we have a $313 reduction in the government’s rebate and a $290 reduction in the health fund rebate—by the government-owned private health fund, mind you—so here we have a $600 additional out-of-pocket expense for a procedure which right now does not cost 85 per cent of privately insured Australians anything and which will be more expensive to deliver through the public system.
It does not make sense from a health economics point of view. It does not make sense from a patient outcome point of view. It only makes sense if you consider that this is a government that pursues its health policy with a serious ideological bent, if you consider that this is a government that pursues a longstanding ideological crusade against private health and does not really care what the implications for patients are. That is the only circumstance in which you can understand the purpose of this particular budget cut.
While I am at it, here are some of the things to consider in this whole context. Seventy per cent of nearly 200,000 cataract surgery procedures are performed in the private system—70 per cent. In the public system, as it turns out, ophthalmology procedures have some of the longest waiting periods of any specialty group. I suspect that the government thinks: ‘If we make it unaffordable for Australians to get access to this service, they just won’t use it. They just won’t seek access to it.’ We will have an increase in falls and hip fractures. We will have an increase in depression, an increase in social isolation, an increase in the loss of independence, an increase in the loss of driving licences, an increase in early institutionalisation and an increase in the general loss of quality of life for our senior Australians.
Why would the minister not be prepared to proactively and positively engage and pursue a proposition that has been put forward, at least to assess whether Avastin can be used in a similar way as it has been in some other jurisdictions? I am told that it has been used in the Brisbane public hospital system for the last two years for exactly that purpose. Here we are, probably 24 hours away from having to make a decision about the Rudd government’s misguided budget cut to cataract rebates.
Senator Ludwig interjecting—
This is an important issue.
Yes, this is a very important issue, Senator Parry, absolutely. I think that last week during Senate estimates Senator Ludwig was treating this very serious issue with the same sort of level of contempt and lack of seriousness as he is doing now, quite frankly. We should have had an answer to these questions from the minister. We should have an answer to these questions a long time ago.
I will just talk about a few other issues that came up last week. The government has made decisions on cataract surgery rebates without having any idea how much time that surgery actually takes in Australia. The minister has gone out there with a whole heap of assertions, but we have asked specific questions: ‘Okay, you say that this surgery now takes 15 to 20 minutes, so how many of those 200,000 surgery procedures performed across Australia took between 15 and 20 minutes? How many took more than 20 minutes? How many took more than 25 minutes?’ Do you know what the answer was from the official? It was: ‘We don’t know. We don’t have access to that information. We don’t collect that data.’ This is the evidence based decision making of the Rudd government—yes, sure!
What we did have, though, was the AMA survey of ophthalmologists. Three hundred and thirty-four ophthalmologists participated in the survey. What did it find? Seventy per cent of them take between 25 and 40 minutes for this cataract surgery. I asked the department to comment. I asked the department to point out the flaws. I said, ‘Tell me: what are your thoughts about it?’ The department, the government, refused to make any comment whatsoever. They certainly did not dispute the findings of the AMA survey. The invitation still stands. Tell us if you think it is flawed. Tell us if you think that the AMA survey is not an accurate reflection of what actually happens with cataract surgery, and tell us on what basis you make that assertion. I certainly gave the health department official the opportunity last week, and she declined to criticise the outcomes of that survey.
This issue is another demonstration of the absolute failure of the Rudd government in the health portfolio. They came in, they promised the world and they have delivered next to nothing. They said they had a plan to fix public hospitals by the middle of 2009 and said that, if they had not, they would move for Canberra to take over the running of public hospitals. We have not heard much of that lately.
Instead, we have had a 20-month review followed by a review into the review and a whole series of photo opportunities across Australia, but no actions and no decisions. On the other hand, we have budget cut after budget cut, targeted at those Australians who access their health care through the private health system or those Australians who take additional responsibility for their own health care needs by taking out private health insurance.
Before the last election, this government promised that they had learned from their inglorious past, that they would not make the same mistake of pursuing an ideological crusade against Australians with private health insurance or those who access services through the private health system. Here they are, back at it, and it is worse than it has ever been. Before any cut to the health portfolio, the impact of the cut on Australians accessing health care through the private system should be looked at. Invariably, they are the targets of the cuts. It is not just rich people who access those services in the private system. Invariably, working families access those services through the private system. The reason they go into the private system is that they can access it when they need it and they do not have to join the lengthy waiting queues.
I indicate at the outset that I will not be taking the 20 minutes that Senator Cormann took in his contribution, which can only be described as an incoherent rant. Let me outline some of the facts. First, in relation to the question on notice, I did indicate that it is an important question and that we would be providing an answer to that question shortly. Second, in relation to the facts, as outlined by Senator Cormann in respect of Minister Roxon not answering the question, I did indicate that the question would be answered shortly. Third, in relation to the facts, if you could loosely call what Senator Cormann went through ‘facts’, they are: savings of $98 million over four years—the cataract MBS rebate issue. It is an area where the MBS fee for the most commonly performed cataract service, item No. 42702, has reduced from $831.60 to $416. What we are also doing, something Senator Cormann failed to indicate, is that we are introducing a new complex item for $850. The ophthalmology MBS spend is $317 million in this area. This proposal will save $7.7 million from the total. The average ophthalmologist receives $585,000 from Medicare each year. They earn an average of $154,000 from cataract procedures alone. After this measure comes into effect, they will continue to earn $508,000 through Medicare alone. On average, ophthalmologists conduct 243 cataract operations per year per full-time equivalent—100 per cent of the MBS schedule fee, 75 per cent fee through MBS rebate and 25 per cent covered by PHI.
Can I also say that back at budget time—and I did not hear this in Senator Cormann’s response during his incoherent dissertation—the shadow Treasurer made clear the opposition would support our responsible and sensible reforms in health with the exception of PHI rebate changes—all of them with the exception of PHI. The regulations that introduce this new fee structure will be tabled shortly today. It is time for the opposition to stop siding with the specialists and start supporting cataract patients who are being slugged with unreasonable fees.
We are saving patients.
I listened to you in silence, Senator Cormann. I ask that you respect that. In refusing to support the savings measure, the opposition are stepping away from a clear undertaking to support all budget measures, except the PHI. When you look at the issue in detail, the campaign by the ophthalmologists centres on the fee for one common procedure that takes 15 or 20 minutes. Currently, the fee is $831.60 and in the future it will be $416. Fees for cataracts are being adjusted to better reflect the time and complexity of the procedure. The government have negotiated with the profession to set a new higher fee for complex cataract procedures to fairly reflect when the procedure is more complex. This new item will be set at $850. This fee, which is more than double the fee for normal cataract procedures, appropriately rewards specialists for the additional time they invest in longer procedures. The revised fees will be introduced from 1 November. We do expect that (1) we will provide an answer to the question taken on notice shortly and (2) the opposition live up to their commitment to support these measures.
Question agreed to.
I move:
That the Senate take note of the answers given by the Minister for Immigration and Citizenship (Senator Evans) and the Special Minister of State (Senator Ludwig) to questions without notice asked by Senators Fierravanti-Wells and Johnston today relating to border protection.
I note there are quite a few Western Australian senators in the chamber. I noticed in Senator Evans’s answers that he appeared to be in complete denial about the pull factors in terms of the changes in the policies. I reflected on what he was saying and recalled this. I had a drink in a pub about 30 years ago called the Broad Arrow pub, just outside of Kalgoorlie. A great characteristic of the pub was that it would always be raining inside. There were bowls of water everywhere to catch the drips. We were all impressed one day when the proprietor decided he was going to get the roof fixed. The roof was fixed, but it did not rain for a fair while. They had an extension put on as well. I remember the first night it rained, and there was a fair bit of rain, and they realised that the guttering had actually been redesigned so it flowed into the back of the Broad Arrow pub. I am not sure which senators from Western Australia have enjoyed a beer there. I can tell you the difference between the government and the proprietor of the pub: the proprietor was absolutely in no doubt that it was the reengineering of the building that ensured that far more water got in—not just the fact that it was raining. I can assure you, Mr Deputy President Ferguson, that everybody around Australia now understand that the changes in policies by those opposite have caused much of the people movement.
If we look back to October 2007—we are coming up to the second anniversary of this government—we see that there were around 15 million refugees looking for a refugee outcome and around 150,000 places available. In two years, not much has changed. The principal circumstances have not changed. With regard to pull factors, if we look at the circumstances of an individual who, through the UNHCR process, quite tragically has to wait nine years to get a refugee outcome, we can understand that when a country says, ‘If you come to our country the new rules are that you have to wait for 90 days and then you can be guaranteed permanent residence,’ that individual would decide that is a comprehensive and very tempting option. It is the option that is being touted by those people who traffic in human misery—of course, they would put their spin on it—and I have absolutely no doubt that that is the principal reason people are now coming to this country in far greater numbers than we have seen before.
Unfortunately, the government have not been too transparent about releasing details, in general terms, about the circumstances of these individuals. Anecdotally, and I have seen it reported in the media, it appears that some of these individuals have already been living in areas that you would say are relatively safe havens—certainly not in the country in which they were being persecuted and in which they were afraid.
We need to understand that we have two types of families. We have the families who arrive in these vessels quite legitimately seeking an asylum outcome in Australia because of the changes in this government’s policy. They have been able to afford up to $15,000 per member to contribute to this international criminal activity in seeking a better outcome for their lives. You do not blame them for that. Then we have the other type of family, who are currently living in camps that are characterised by hunger, fear, rape, murder and the most abhorrent life you could possibly imagine. The UNHCR, in which we proudly participate, makes it very clear that we absolutely need to ensure that we prioritise those issues. On the one hand we have somebody who is obviously doing relatively well, but those opposite are not only placing in danger that type of family; they are also no longer taking into consideration the families most in need, who are in the most horrific circumstances. Those on the other side stand condemned because they remain in denial and, whilst they remain in denial, the boats will continue to come and the people on those boats will continue to put their lives in danger.
I think it is quite sad that this important area of public policy is being used by the coalition to whip up fear of and ill will towards people who are genuine asylum seekers and who often turn out to be genuine refugees living in our country. I thought the analogy that the senator opposite used—that this is somehow comparable to fixing the leaky roof of a pub that he visited—was pretty abhorrent.
I would like to put to rest once and for all the notion that, under the Rudd Labor government’s humane approach to asylum seekers and refugees who come here by boat, numbers have increased. We know full well—it has been mentioned time and time again—that during the period of the Howard government nearly 250 boats arrived on our shores, bringing almost 15,000 people. But I do not particularly want to get into a war of statistics, because I think that is a cheap way to deal with a very important humanitarian program.
I am proud to say that one of the first things the Rudd Labor government did when it came to office was to reverse some of the appalling attitudes to genuine asylum seekers and refugees that we saw from the opposition. We got rid of the dreaded temporary protection visas; we stopped locking women and children up behind barbed wire; in my own state we got rid of the abomination that was Baxter; and we got rid of the so-called Pacific solution, which saw people interned on Manus Island and Nauru, in many cases for inordinately long periods.
I think it is really important in this debate to remember the people that we are talking about. An asylum seeker is someone who has come to another country because they are looking for a better life for themselves and, more importantly, for their children. Not all asylum seekers are found to be genuine refugees, as we know, but it is the case in the history of Australia that the vast majority of people who have come here as asylum seekers have been found to be genuine refugees. That is the case under this government and it was the case under the former government.
A person can be found to have refugee status if: they are found to have a well-founded fear of persecution if they return to their homeland; they fear persecution because of their race, religion, nationality or membership of a social group or because they hold a particular political opinion; they have fled their homeland and sought sanctuary elsewhere; and they are unwilling or unable to seek protection in their own country. The people who come here by boat, of course, are risking much, but what they risk by staying in their own country, if they are genuine refugees, is something much, much worse.
As I said, the people who do come here by boat are, in the main, found to be genuine refugees, and the kind of rhetoric we are getting from the opposition in this debate makes it even more difficult for those people who are found to be genuine refugees to finally settle in Australia. Those of us who work closely with refugee organisations in our own states know the difficulties that those people face in settling into Australia—in finding accommodation and, in particular, in finding jobs—because unfortunately there are persistent attitudes in the community, fostered by the kind of rhetoric that we have heard from the opposition, that make it very difficult for those people to settle in our country. There is no reason for that. Australia, as we know, is a very wealthy nation, well able to take the refugees that we do. We accept, I think, about 13½ thousand refugees under the UNHCR program. Personally, I wish we could take a lot more. I wish we would stop demonising the people who come to this country seeking a better life for their children and I wish the opposition would get out of the gutter in this debate about legitimate asylum seekers and refugees, whom we should be welcoming.
I also rise to take note of answers given by Senator Evans. In commenting on the previous speaker, I ask the Senate to reflect on the fact that Australia, on a per capita basis, is the second most generous country in the world when it comes to accepting refugees and migrants, and because of that we should not be demonised. We have learnt this afternoon of a sad, long litany of failure, as acknowledged by the Minister for Immigration and Citizenship. We learnt that the government is not across information available to its agencies on those who are due to come, those who are there now and those who are preparing to come. If the government is not aware of what the ADF and others know, how can it be formulating policy?
I draw attention to some of the media releases of the past, and mustn’t the government be regretting them now! There is the media release by the Minister for Foreign Affairs, Stephen Smith, on the third consecutive failure to detect people smugglers, when fifteen people arrived. We were asked to pay attention to its assertions about smuggling of all kinds, including guns, drugs and people, through our northern maritime borders and about what Labor would do in government. Well, they have not done it. Then we have another media release from the then shadow minister for population and immigration Julia Gillard telling us that there was another boat on the way and another policy failure. She told us about the fact that, for asylum seekers on their way to Australia, policy was not working. She went on to talk about why the Christmas Island centre had not been opened on time. Fortunately for this government, the last government did supply a solution for Christmas Island. If it had not, where would we be now?
The tragedy of this whole issue is that, because of the policies of this government, people smugglers are now encouraged again to put people’s lives at risk. They have absolutely no concern for the asylum seekers. They are only concerned to earn the one, three or four million dollars that they get for this. They are encouraging people to put to sea, and we know very well that the losses are severe. I agree with the previous speaker that we should be doing far more to protect the lives of those people, and the best way of protecting the lives of people at sea on rickety and failing vessels is for them not to go to sea in the first place.
We heard this afternoon from the minister that not all levels of government and its agencies are yet engaged with the Indonesians when it comes to the apparent solution which they are seeking. We also learnt from the response to the question from Senator Hanson-Young that not all options have been examined in relation to the Oceanic Viking. If, in fact, the Sri Lankans on board decide that they do not want to leave or the Indonesians do not have the power or the will to make them leave, what is going to happen? We all, in this chamber and in the wider community, have the right to know what the government is planning in this area.
I draw attention to the apparent solution in the Timor Sea, when a vessel was burnt earlier this year. Thank the Lord that the Front Puffin, an FPSO, was there in the Timor Sea and able to assist in the process. At this time, we do not even have a coronial report, yet this government has made a decision to grant refugee status to all of those people on board. We do not even know the causes; we do not know who was responsible; we do not know what the outcomes are going to be. But yet another signal has gone through people smugglers to refugees: if you render your vessel unsafe at sea, you are going to have an accelerated course.
This is not the way that the Australian community has a right to be treated; this is not the way that our neighbours Indonesia ought to be treated; this is not the way that would-be refugees ought to be treated—there is no way in the wide world. All we saw was a Labor Party person attacking the Western Australian Premier when he simply read from a situation report that was available to him and to the Labor government that day. What did the government do? It criticised Colin Barnett, but Barnett added not a single word.
Then, of course, we have the ultimate—that is, when you have no policy and nowhere to go, you attack. Sure enough, the other day we heard the Prime Minister attacking the member for O’Connor because he was raising the possibility that there might be terrorists on board. What attention did the Prime Minister pay to the statement of Michael Danby, the member for Melbourne Ports, on 18 June, when he very responsibly drew attention to the following facts?
Any loophole in our law can be exploited by criminal elements to evade or subvert our border protection system. They include … people smugglers, potential terrorists, drug runners …
What response did we see from the Prime Minister to this gentleman, Michael Danby, when he simply drew attention to this? (Time expired)
I rise this afternoon to take note of answers, and I do so on the basis of putting into perspective where this argument really sits: it is really about the situation the world is currently in. There are a large number of displaced people that are looking for a home to come to and settlement in a more stable, democratic nation, such as Australia. You cannot blame them for that. Unfortunately, they are being targeted by people smugglers who choose to use them and who take advantage of people that are in unfortunate situations. The reasons behind the surge in numbers are no doubt things like natural disasters in our region, war and conflict in our neighbouring countries, and climate change. No doubt we will see an increase as climate change bites into the world and people lose their homes and their land as a result of tidal surges.
But people smuggling is not just an issue for Australia; it is a global and regional problem. The commitment of our neighbours through bilateral cooperation and the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime is critical to addressing this most serious issue. Since September 2008 there have been 19 arrests of facilitators and organisers of people-smuggling ventures in Indonesia alone. Since September 2008, the Australian Federal Police has also charged 55 people with offences under the Migration Act 1958, including 51 illegal crew members and four alleged Australian based organisers. These offences attract a maximum penalty of 20 years imprisonment.
The Australian government remains vigilant and committed to protecting Australian borders. Trafficking in persons is a modern-day form of slavery that involves the recruitment, transportation, transfer, harbouring or receipt of people in order to exploit them through forced labour or servitude. The report that the Australian Institute of Criminology released recently indicates that most people who are being smuggled or trafficked into Australia come from southern Asia and about 95 per cent of them are women who are put to work in the sex industries. Two cases were also brought with regard to alleged forced labour, an area of increasing regional concern.
Australia has adopted a whole-of-government response to people trafficking which includes a national policing strategy and specialist police investigation teams, enhanced visa arrangements, a victim support program and regional cooperation efforts. But what is the alternative when it comes to the opposition? We heard recently from the other chamber that Liberal backbencher and MP Philip Ruddock has made some claims on asylum seekers based on nothing more than his own opinion. I note that he has called for the reintroduction of the disgraced Pacific solution and temporary protection visas. The Liberal Party was silent when these measures were scrapped last year. It is now Liberal Party policy—though there is some division within the Liberal Party. The Liberal Party wants to debate immigration policy but has no policy of its own to put forward.
The reality is that we have had irregular boat arrivals to Australia in 25 of the past 33 years. From 1999 to 2001, under the Howard government, there were 12,176 boat arrivals. That tells you a bit about the policies that the opposition wanted to retain and wanted to rely upon in the past. In 2008 and 2009 we have seen a resurgence of mainly Afghan and Sri Lankan asylum seekers who have fled their own countries and are seeking safe haven in Europe, North America and Australia. So it is a global problem; it is not a problem that is associated with Australia alone. Therefore, we need to address this issue globally.
This government’s message to people who are thinking about illegally entering Australia is: ‘Think again. If you are not a genuine refugee, you will be quickly sent home.’ We have invested a record amount in surveillance and interception, and in the budget we announced an additional $654 million— (Time expired)
As has been said, this is a very difficult problem. There are massive numbers of refugees in the world—something like 42 million was mentioned earlier by one speaker—and it is an enormous problem. But we in Australia have to be realistic about what we can do in terms of assisting with a resolution regarding the problem of the number of refugees around the world. We are in fact a very small country, of just some 21 million people. Even so, we have had a very fine record in assisting in resettling refugees, beginning of course after World War II, when we took huge numbers of displaced people, and continuing on through the years with the boat people from Vietnam and Cambodia.
Today we have a system for the orderly processing of people who want to come to Australia under the United Nations convention on refugees and have a quota within our migration system of some 15,000 people a year who come into Australia from UNHCR camps, where important checks are carried out before they get to this country. In particular, their identity is checked and verified—because, as has been said, very often people who claim to be refugees are not necessarily who they claim to be and they are not necessarily quite as innocent as they would like us to think they are. It is very important not only that their identity is checked but also that their security records and criminal records are checked. The policy that the Australian government has followed for a long time now is to accept a quota of refugees through the United Nations High Commissioner for Refugees process, and we have very much made our contribution to alleviating this problem around the world.
The recent flood of boat people from Indonesia and Sri Lanka reflects pull factors in Australia. Most important of all the pull factors is the change in the Rudd government’s policy in dealing with refugees. There can be no doubt whatsoever that there is a view out there that, under this government, Australia will not just confine itself to taking refugees from the UNHCR sources but will take anyone who turns up on the doorstep and claims refugee status. So there is a very different kind of view out there about how the Australian government will react to anyone coming to this country. It is disgraceful that people smugglers are putting at risk the lives of asylum seekers, and there is absolutely nothing humane about border protection policies that increase the likelihood of vulnerable men, women and children getting into leaky boats and risking their lives on the high seas.
The coalition believe the government must urgently set up an independent inquiry into the reasons for the surge of arrivals on our north-west coastline and seek to identify possible solutions to this problem. The government, we believe, must be prepared to accept responsibility for the consequences of the mixed messages it has sent. The question before the Senate today then becomes: why is the Rudd government running away from an inquiry into its border protection policies which the coalition believe should be carried out?
The situation is now becoming quite urgent, with ever-increasing numbers of boats appearing on our coastline. The facts are clear: the Labor Party policy has failed. They have lost control of our borders. What we need is a full and independent inquiry to consider all policy options. That is the question we must ask in the Senate today: why are the Rudd government running away from such an inquiry?
Question agreed to.
It is with deep regret that I inform the Senate of the death, on 2 October 2009, of John (Jack) Gordon Evans, a senator for Western Australia from 1983 to 1985. I call the Leader of the Government in the Senate.
by leave—I move:
That the Senate records its deep regret at the death, on 2 October 2009, of John (Jack) Gordon Evans, former Australian Democrat and senator for Western Australia, and places on record its appreciation of his long and meritorious public service and tenders its profound sympathy to his family in their bereavement.
Jack Evans was born in 1928 in Southern Cross, Western Australia, and educated at Northam High School and Perth Technical College. Before entering parliament, Jack was a management consultant and company director focusing on corporate mergers and acquisitions. He had a lifelong passion for politics, but it really was not until the events of the constitutional crisis in 1975 that he was mobilised into action. In 1977 I guess it was a real turning point for him when he invited Don Chipp to Perth to address a public meeting. Don recounted that it was at this meeting at the Perth town hall that the Australian Democrats were born. I am not sure if former Liberal senator Ian Campbell was there at the time but he was certainly active around that period and he rightly described Jack Evans as a great Western Australian.
Jack ran for the Senate on the Democrats ticket twice before he was elected. He missed out in 1977, the first federal election the Democrats participated in, despite gaining around 12.6 per cent of the vote, which I think is the highest Democrat vote ever in Western Australia. He missed out again in 1980 before he was eventually elected to the Senate in the March 1983 double dissolution election, making him Western Australia’s first Australian Democrats senator. Unfortunately he was the victim of the impact of double dissolutions on those given the shorter term. As he had the shorter term, he was up for election again in the 1984 election and so his term in the Senate lasted only until June 1985. He had only about two years in the Senate, making him the second shortest serving senator in the party’s history.
Nonetheless, his contribution was substantial—both in parliament and outside parliament. I will come to his extraparliamentary contributions shortly. During his time in the parliament he participated on the Senate Legislative and General Purpose Standing Committee on Finance and Government Operations and the Senate Select Committee on Animal Welfare. He also introduced one of only 12 private senators’ bills to be passed into law since Federation. Senator Bob Brown will be pleased with this. He had a bill carried by the parliament aimed at preventing a certain type of tax evasion that was a hot issue at the time. He was able to succeed in this as a parliamentarian even though he came from a minor party.
Jack was a tough negotiator as well as a passionate spokesperson for the Australian Democrats on a range of issues, including: treasury, industrial relations, trade, industry and commerce, finance, small business, transport, aviation, sport, recreation and tourism. He really was someone of the centre with a business background, which was representative of some of the constituency of the Democrats in those early days. He made a contribution in a range of those economic areas.
Despite his rather short parliamentary career, Jack was in fact a really significant figure in the development of the Australian Democrats, particularly in my own state of Western Australia. After co-founding the WA branch of the party, he was its founding president from 1977 to 1981. He was also a member of the Australian Democrats national executive from the formation of the party, Deputy National President from 1979 to 1981 and National President from 1981 to 1983. He was a significant contributor to the formation of the Democrats and its establishment as an effective third force in Australian politics. Senators may recall how difficult it is to form a third party and how many have failed, but the Democrats, in its early days especially, was a real success story in finding a position in Australian politics.
As I say, Jack’s time in the Senate was cut short at the 1984 election and his seat was captured by Jo Vallentine from the Nuclear Disarmament Party. He narrowly lost to her in that election. I have some sympathy for him; I narrowly lost to her in the following election in 1987. So we shared stories about the injustice of it all. His dedication to the party he helped establish continued long after he left the Senate. He was very much a party man, he very much worked for the success of the party behind the scenes and he was a unifying force in the Democrats, despite having very strong views of his own.
Jack Evans played a particularly important role in rebuilding the Western Australian arm of the party during what was a very difficult time for the branch in the mid-1990s. He effectively came back in and rescued the Western Australian Democrats. They were having trouble with a particular chap who was a former candidate for the ALP at the 1983 federal election. He almost won the seat of Forrest late on election night. We were so glad he did not win. Unfortunately, he then joined the Democrats and set about destroying them from within.
Jack was responsible for rescuing the Democrats in what was a terribly difficult period for them, wracked by divisions and by alternative executives claiming authority of the party. It was a nightmare. Jack went back in and cleaned up all that and made the Democrats in Western Australia electable again in the mid-nineties. That culminated in the election of Senator Andrew Murray in 1996, as well as the election of Brian Greig in 1998. That was the first time the Australian Democrats in Western Australia had actually gained a second spot in the Senate. So Jack very much turned around the fortunes of the party.
It is also the case that he was widely respected by the Labor Party in Western Australia because of his forthright and honest dealings. He was someone you could negotiate with in a very frank way. You knew that if you had a deal with Jack then the deal stuck. He was a very good political operator, a very principled man. He was well regarded by others in the political sphere, not just by his own party. I am sure that Liberal Party state secretaries and others would have the same views that I had of him—that you dealt with him in a very open, honest and fair manner and that you respected him. For many years he was very much a dominant political figure in Western Australia, given the role he played in the Democrats, even though his Senate career was short.
Unfortunately, Jack passed away on 2 October this year, at age 80. He will be fondly remembered for his great passion for politics and as a determined and committed advocate for a wide range of social justice issues, as well as for his very significant contribution to the establishment and development of the Australian Democrats. On behalf of the government I offer condolences to his wife, Margaret; his children, Suzanne and John; his family and friends; and of course to his many colleagues from the Australian Democrats and from politics more widely. He will be missed.
I rise to support the motion moved by Senator Chris Evans in relation to the death of Jack Evans on 2 October. On behalf of the opposition I extend our sympathies to the family of Jack Evans. The Leader of the Government in the Senate has quite comprehensively and very fulsomely described Jack’s great contribution to the Senate, to the Australian Democrats and to Australian politics generally. I, on behalf of the opposition, endorse all his remarks. It was not my privilege to know Jack personally, but I have been well aware of his existence for many years and well aware of his great reputation, one that Senator Evans has properly reflected upon.
It is true that Jack’s very short Senate career belies the extent of his considerable contribution to Australian democracy. He gave extraordinarily long and devoted service to what was for many years the third force in Australian politics: the Australian Democrats. Having followed for several decades the travails of that particular party, its comings and goings, its ups and downs, I believe it must have been a tortuous experience for Jack Evans, but it is a great mark of the man that he survived that and hung on. We all know those who just pass through politics, give it a few years and move on. Jack clearly gave much of his life to ensuring that Australia had a middle-ground party of the kind that the Australian Democrats represented. I guess for that reason it must have been extraordinarily painful for Jack to have witnessed the complete collapse of the party that he devoted so much of his life to and which he helped to create with none other than our former Liberal colleague Don Chipp and, indeed, with some assistance from another great Liberal friend of ours, Steele Hall. I think Jack was actually a member of Steele’s Liberal Movement at one stage. The political process never ceases to amaze me. Steele is one of my best friends.
We can all say that Jack’s family can be extraordinarily proud of his great contribution to public life. We honour him here today. To his wife, Margaret, the children and grandchildren, the opposition also place on record our appreciation of Jack’s great service. We tender our profound sympathy at this time of their bereavement.
I would like to add a few words to those fine eulogies to Jack Evans. I am happy to say that my political origins, like his, owe something to the mountains of Tasmania, as I will explain. I am very much indebted to former Senator Andrew Murray of the Democrats for allowing me to read to the Senate words that he delivered at Jack’s funeral service, on 13 October, at the chapel, Pinnaroo Valley Memorial Park in Padbury, Perth. Andrew had this to say:
I’m honoured that the family asked me to speak today.
A eulogy is an expression of praise. Jack’s immense political achievements extended over thirty five years. He was indeed worthy of praise, a man not only of great significance to Western Australia, but of real significance to Australia itself.
Jack Evans was of great significance to Australia because he was the Founding Father of a political party that has had a great and enduring impact on national life; on the nation’s political life, governance and institutions; on electoral reform; and on social, economic and environmental policy.
I will eschew statistics and chronology and try to give you something of the flavour and meaning of Jack’s politics.
The words that summarise Jack Evans and politics are ‘constant effort’ and ‘tenacity’. That and his character won him the admiration and respect shown him in life and death.
He was a progressive, optimistic, passionate and determined campaigner for a better Australia. Strongly anti-nuclear and pro-environment; strong on participatory democracy; intent on freeing up business with better market systems; strong on tax reform; committed to education, to human rights and social justice; and intent on better political checks and balances. He was an intensely value-driven policy modernist.
He was a warm, caring and enduring friend. In politics he was persistent to exhaustion but not stubborn; he was pragmatic but principled, knew when to say no and when to compromise; he was compassionate but not maudlin, hard-headed but soft-hearted.
There were times when he and his party were assailed in WA and nationally. He survived some hideous pressures, awful moments and terrible disappointments with his hopes, ideals and humour intact.
I only met Jack in 1994 when he was already 66, but a more energetic and upbeat personality would be hard to find. Politically he was well-informed and well-connected, wise and able. I valued his advice so much that he was on my part-time staff from my first to my last day as a Senator.
That means Jack finally left the workforce aged 79.
Jack was impelled into politics by the events of 1975.
I will interrupt my reading of Andrew Murray’s speech here to read his footnote on this. It says:
… In Jack’s own words: ‘On 11 November 1975 Margaret and I were holidaying in Hobart, Tasmania and drove to the top of Mount Wellington to enjoy the vista. En route we tuned into the ABC radio station and listened to proceedings in the Federal Parliament. We were stunned to hear … Malcolm Fraser and the Governor General [had] effected a peaceful coup of the Australian Government. I shan’t dwell on the analysis of the events of the day only to say that we feared a violent eruption from the left of politics as the day proceeded. We were scheduled to fly back to Perth the following day and on our plane was Senator Steele Hall who was going to Perth to form a WA branch of his New Liberal Movement Party. He invited us to a planned meeting of interested people and from that meeting the new LM was formed in WA.’
I will return now to reading the eulogy. Andrew Murray says:
His representative political life as a Senator from 1983-1985 was cruelly short but busy and impactful.
Andrew Murray also has a footnote here in his speech. It says:
5 March 1983 - 30 June 1985. Jack first stood for the Senate as a candidate for the Liberal Movement in 1975. When the Liberal Movement and the Australia Party merged to become the Australian Democrats he stood unsuccessfully twice more in 1977 and 1980, at considerable personal financial cost. His running mate was his great friend the renowned Shirley de la Hunty; who later also supported Andrew Murray on his 1996 Senate ticket.
Andrew Murray’s eulogy for Jack continues:
His organisational political life was long, distinguished and dedicated, ranging from the heights of National President and National Campaign Director to the grinding work of countless grass-roots meetings and committees, often accompanied by the eternally supportive Margaret.
His last speech in the Senate extolled the considerable virtues of Margaret and family, and his last words to me did the same.
When Margaret first hooked up with Jack as a teenage sweetheart, she could not have imagined what she was in for. Insiders know what great strains such political commitment puts on family life. The Evans did not just expend time, their political campaigns were self-funded and their business suffered.
His family will tell you Jack was always interested in politics, galvanised by ideas and current events, a great reader, always on for a debate. Be was a born organiser, persuasive (it helped to have that mellifluous voice), careful in keeping notes and records, diligent, methodical, hard-working, available at all hours, and blessed with a good memory. But never too busy to pass the time of day.
One highly-ranked former Democrats staffer told me:
Jack was always courteous, thoughtful, respectful. In a party with many waverers and as many, if not more, disorganisers - Jack stood apart.
The Australian Democrats nationally could not have been established and later revived in WA after near-collapse without Jack.
As to his national impact; in Don Chipp’s own words—
and this is from Hansard on 31 May 1985 at page 2,949:
… had it not been for Jack Evans there would be no Australian Democrats …Contrary to popular belief, when I resigned from the Liberal Party in 1977, my whole intention was to get out of politics. The last thing in my mind was to help to form a new political party. It was Jack Evans, whom I had not met then, who pleaded with me to come and address a meeting in Perth. It was in Perth, with Jack Evans chairing an overflowing meeting in the Perth Town Hall—
and that was on 29 April 1977—
that the Australian Democrats were born.
The wonderful Stephen Swift, National Campaign Director for the Democrats for 15 years wrote to Jack before he died:
To have kick-started a national political party once in the ‘70s is impressive enough. To kick-start it twice, and get four WA Democrats elected within eighteen months in the 90s, was truly miraculous. Without your steady hand on the tiller, your experience and your steadfast belief that it could be done, it would not have been. You had belief enough for us all (and the best radio voice in the business!).
Sam Hudson, that amazing two-decades Democrats National Secretary, should have the last word:
Jack was Jack, he was always there. I can’t remember a time when Jack was not there - for the Party, for the members. Sort of like the Democrats security blanket. Whilst ever Jack was there, everything was OK. In his quiet way, in his lovely dulcet tones, he soothed, inspired, negotiated, led, mentored and sometimes persuaded. He was admired and respected by everyone from every party. He was our light on the hill. To me Jack was the light that bathed us in his warm glow and I am grateful to have spent over 30 years of my life knowing him.
Andrew Murray concludes in his eulogy:
For Pam and I he was our friend, from the first day we met to the day of his passing. We owe him a great deal. We will remember him with pride and gratitude.
Question agreed to, honourable senators standing in their places.
Petitions have been lodged for presentation as follows:
Senator Crossin to move on the next day of sitting:
Senator Eggleston to move on the next day of sitting:
Senator Lundy to move on the next day of sitting:
Senator Lundy to move on the next day of sitting:
Senator Forshaw to move on the next day of sitting:
Senator Mason to move on the next day of sitting:
Senator Nash to move on the next day of sitting:
Senator Bob Brown to move on the next day of sitting:
The Reserve Bank of Australia’s subsidiaries, Note Printing Australia and Securency, with particular reference to:
Senator Fielding to move on the next day of sitting:
The practices and procedures of Australia Post over the past 3 years in relation to the treatment of injured and ill workers, including but not limited to:
Senator Fielding to move on the next day of sitting:
Senator Bob Brown to move on the next day of sitting:
Senator Xenophon to move on the next day of sitting:
Senator Abetz to move four days after today:
Senator Minchin to move (contingent on any order of the day being read for the consideration of the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009):
Senator Conroy to move on the next day of sitting:
Senator Xenophon to move on the next day of sitting:
Senator Birmingham to move on the next day of sitting:
Senator Stephens to move on the next day of sitting:
Autumn sittings:
Tuesday, 2 February to Thursday, 4 February
Monday, 22 February to Thursday, 25 February
Tuesday, 9 March to Thursday, 11 March
Monday, 15 March to Thursday, 18 March
Budget sittings:
Tuesday, 11 May to Thursday, 13 May
Winter sittings:
Tuesday, 15 June to Thursday, 17 June
Monday, 21 June to Thursday, 24 June
Spring sittings:
Tuesday, 24 August to Thursday, 26 August
Monday, 30 August to Thursday, 2 September
Monday, 20 September to Thursday, 23 September
Tuesday, 28 September to Thursday, 30 September
Spring sittings (2):
Monday, 25 October to Thursday, 28 October
Monday, 15 November to Thursday, 18 November
Monday, 22 November to Thursday, 25 November.
Senator Stephens to move on the next day of sitting:
Senator Milne to move on the next day of sitting:
The possible impacts and consequences for public health, trade and agriculture of the Government’s decision to relax import restrictions on beef, especially relating to the import of beef from countries previously affected by bovine spongiform encephalopathy, otherwise known as mad cow disease, and any related matters.
Senator Hanson-Young to move on the next day of sitting:
Senator Ludlam and Senator Milne to move on the next day of sitting:
On behalf of the Standing Committee on Regulations and Ordinances, I give notice that 15 sitting days after today I shall move:
I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.
Leave granted.
The document read as follows—
National Health Security (SSBA Standards) Amendment Determination 2009 (No. 1)
This instrument removes the requirement for persons handling Tier 1 (highest level biosecurity risk) security-sensitive biological agents (SSBAs) to undergo background checking. The Explanatory Statement notes that this is because the necessary supporting legislation has not been enacted and when that legislation is enacted, the Standards will be amended again to require background checks.
The Committee wrote to the Minister seeking advice as to when the required legislation would be enacted and the impact that the delay in introducing the supporting legislation will have on persons who are employed to handle SSBAs.
The SSBA Regulatory Scheme commenced on 31 January 2009. The Minister noted the importance of background checks to the operation of the new scheme, and the intention that amendments will be introduced to provide a comprehensive background checking scheme in the principal Act. The effect of this Determination is to defer the commencement of background checking until that amending legislation is enacted.
The Committee has written to the Minister seeking further advice about the implementation of an apparently incomplete scheme.
I give notice that, on Wednesday, 28 October 2009, I shall move––
I also table the Health Insurance (Extended Medicare Safety Net) Determination 2009.
by leave—I move:
That leave of absence be granted to the following senators on account of parliamentary business overseas:
Question agreed to.
by leave—I move:
That leave of absence be granted to Senator Barnett for 26 October and 27 October, for personal reasons.
Question agreed to.
by leave—At the request of Senator Birmingham, I move:
That the time for the presentation of reports of the Environment, Communications and the Arts References Committee be extended as follows:
Question agreed to.
by leave—At the request of Senator Nash, I move:
That the time for the presentation of the reports of the Rural and Regional Affairs and Transport References Committee be extended as follows:
Question agreed to.
by leave—On behalf of the Chair of the Senate Legal and Constitutional Affairs References Committee, Senator Barnett, I move:
That the Legal and Constitutional Affairs References Committee be authorised to hold a public meeting during the sitting of the Senate on Tuesday, 27 October 2009, from 3.30 pm, to take evidence for the committee’s inquiry into access to justice.
Question agreed to.
The following items of business were postponed:
Business of the Senate notice of motion no. 1 standing in the names of Senators Boswell and Macdonald for today, proposing the disallowance of the Proclamation dated 14 May 2009 [Coral Sea Conservation Zone], postponed till 28 October 2009.
Business of the Senate order of the day no. 5, proposing the disallowance of the Threat Abatement Plan for disease in natural ecosystems caused by Phytophthora cinnamomi (2009), postponed till 28 October 2009.
General business notice of motion no. 508 standing in the name of Senator Humphries for today, relating to former child migrants and children harmed by institutional care, postponed till 16 November 2009.
General business notice of motion no. 527 standing in the name of Senator Xenophon for today, proposing the introduction of the Water Licence Moratorium Bill 2009, postponed till 16 November 2009.
I move:
Question agreed to.
I move:
That the following bill be introduced: A Bill for an Act to protect jobs in Australia by preventing the transfer of personal information to other countries without consent, and for related purposes.
Question agreed to.
I present the bill and move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
Let’s face it, we all dislike knowing that when you call your local bank or service provider for help, you end up talking to someone in a call centre overseas.
Then you discover your personal information has been booted offshore along with Aussie jobs.
Today, there have been reports that 83% of Australians do not want their personal information booted offshore without their written consent.
Family First’s bill, Keeping Jobs from Going Offshore (Protection of Personal Information) Bill 2009, requires companies to gain customers’ written consent before their personal information can be booted offshore and used abroad.
Australia has pretty good privacy laws and protection for consumers. But once that personal information is taken overseas god only knows what could happen to it.
Identity crime is on the increase so it’s time this Parliament did something to protect Australians personal information to lessen the chance of hard working Australians being scammed just so big business can save a few bucks.
There are two key benefits of companies obtaining customer permission before booting their personal information offshore:
In regards to jobs, each month new figures are released outlining the number of people who have lost their jobs and have been sent to the dole queue as a result of the global financial crisis.
So far this year the ANZ has booted more than 240 jobs overseas and Vodafone more than 400, and that’s just to name two.
Fortunately last month the unemployment rate steadied at 5.8% but despite this short reprieve, the Reserve Bank of Australia has still forecast this figure to increase further in the coming months.
It is a tragic outcome for thousands of Australians, who through no fault of their own, have become victims to the latest recession to hit our shores.
Unfortunately, this same sympathy does not appear to be shared by the country’s major banks. Unlike many other companies who have seen their profits slashed during the last year, the big banks have continued to record massive profits and have actually increased their market share in the home loan market from 80% to an astronomical 92%. This is virtually a complete dominance of the entire market. Whereas the global financial crisis has hit some businesses particularly hard, in many respects, the economic downturn has been a time of enormous opportunity for the banks.
Nevertheless, this has not stopped the banks from slashing hundreds of Australians workers from their workforce and sending them into an abyss of uncertainty. They have shamelessly disguised these job cuts as a consequence of the latest economic crisis instead of calling them for what they really are – a further attempt to boost their profits at the expense of the lives of ordinary Australians.
The banks of course are not the only industry to head down this path. Numerous other companies have made cuts to their workforce despite continuing to enjoy healthy profits and it is call centres that have been some of the biggest culprits.
For those companies that have embarked on this process, the decisions to slash workforce numbers in Australia do not represent job cuts but rather more accurately, a redistribution of the workforce. Instead, what we have seen is hundreds of jobs being sent offshore while Australian workers are being left out in the cold.
It is an appalling situation and one that needs to end immediately. This Bill will remedy this situation.
The Keeping Jobs From Going Offshore (Protection of Personal Information) Bill, will ensure Aussie jobs and call centre jobs stay in Australia rather than being outsourced to countries which have cheaper labour such as in Asia and other parts of the world.
Under this legislation, companies will need to write to every single customer and gain their written consent prior to transferring customer data overseas. In effect, individuals will have to opt-in to allow their private information to be given to an overseas subcontractor in a country without adequate privacy protection.
This measure will make it more difficult to send jobs off-shore and put the choice to off-shore jobs in the hands of Australian consumers and not Australian businesses.
This Bill will also make sure that personal information of Australian consumers - information such as credit card details, home addresses, passport numbers and marital status will remain in a safe and secure location.
Australians do not want their personal details shipped offshore to unknown locations for anyone to see.
We are talking about people’s personal information and any decision to send this information offshore must get that person’s written consent.
Big businesses in Australia make huge profits on the back of job cuts and it is Australian workers and families that pay the price with the loss of local jobs.
This legislation gives the power to outsource these jobs back to ordinary Australians. Now regular Australians will have the ability to force companies to keep people working in Australia and make it more difficult to ship these jobs to places like Bangalore.
We have to put a stop to the ridiculous practice of outsourcing Aussie jobs to other countries and give ordinary Australians a say on who has private information about them and whether jobs are sent off-shore. When Australians call their bank or phone companies they want to speak to an operator who is based in Australia not someone in India or the Philippines.
The US is also considering similar legislation in an effort to protect local jobs. At this time when keeping Australian workers in jobs must be our first priority, it is wrong for companies to ship jobs overseas at the expense of Australian workers and families.
Australians are sick and tired of call centre jobs being given to other countries, especially when we have many Australians in the unemployment queues.
Australians are also sick of annoying phone calls from overseas operators who can’t provide them with the service they require and deserve.
By passing this legislation, it will provide job security to thousands of Australians and ensure we continue to have a vibrant call centre industry on our own shores. It will also provide proper protection of personal information and maintain strict privacy arrangements. I urge all Senators to support this bill.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
The President has received a letter from Senator Parry proposing that a definite matter of public importance be submitted to the Senate for discussion, namely:
The Rudd Labor Government’s failure to adequately manage border protection.
I call upon those senators who approve of the proposed discussion to rise in their places.
More than the number of senators required by the standing orders having risen in their places—
I understand that informal arrangements have been made to allocate specific times to each of the speakers in today’s debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.
I rise to speak on this very important matter of public importance. What do we see today? We see that there have been 45 illegal boat arrivals since Labor softened its immigration framework through a raft of changes across the immigration department—45 policy failures, to use Julia Gillard’s words: ‘Another boat, another policy failure.’ When will Labor finally work out that it has put people smugglers back in business? What we really need is urgent action to restore border security and to give to those people who are most in need—those people who do not have the contacts and who do not have the cash to pay the people smugglers—a chance to enter our refugee and humanitarian program by exercising their right to claim asylum and to come to this country properly. Many of them have been waiting for 10 years—properly waiting, having been assessed by the United Nations High Commissioner for Refugees.
For every person who comes in the back door, who has the money to bribe the people smugglers, one of those poor women who has been sitting there—who has perhaps come out of Africa with six children and who has a fear of returning to her country because she will be raped and mutilated—is being denied the opportunity to come here because she does not have the money to bribe the people smugglers. These women have been waiting in the camps to be resettled.
What we have seen is a government in denial—a government which, notwithstanding the overwhelming evidence that has been presented to them, will not admit that their changes in policy have led to the chaos that we are now in. The Minister for Immigration and Citizenship got upset with me in Senate estimates because I reminded him of about 70 articles on the weekend pointing out the obvious: that it has been Labor’s changes to and softening of border protection and the immigration framework which has led to these circumstances. It is not just the coalition saying this; it is also the International Organisation for Migration, the Office of the United Nations High Commissioner for Refugees, Indonesian officials, the Indonesian ambassador and even the asylum seekers themselves who tell us that Labor’s policy changes have contributed to the increase in people smuggling.
We have seen tragic circumstances occur. We saw it recently with the 78 people who sabotaged their boat. They were taken on board the Australian Customs vessel and have not yet docked. We have seen, in the last week, the high farce of this government scrambling to do something with them. Not long ago, at Easter, we saw the SIEV 36 with its 42 people on board. The Northern Territory police have given us clear evidence of what happened there. It is still subject to a coronial inquiry, but all 42 have now been given permanent residency. The Australian Federal Police have warned the government. It is very interesting that the government have not released the Australian Federal Police report. What are they trying to hide? They are trying to hide that the Australian Federal Police, based on its intelligence, is telling us the obvious: that it has been the government’s change of policy that has resulted in people-smuggling activities being reactivated, placing hundreds of lives at risk as a consequence. Now we see that the price for passage to Australia has doubled. It has gone from $7,000 to $15,000. Why wouldn’t it, when, with less than 90 days detention, people are walking away with permanent residency in Australia, ultimately leading on to citizenship, with all the rights, responsibilities and privileges which that carries?
The system that this government dismantled was a system which looked at a range of measures. When we left power, we left a very strong system; it was a system that took into account our obligations under international law. Let us not forget the obligation Australia has under the 1951 United Nations Convention Relating to the Status of Refugees. The convention does not obligate Australia to give permanent residency. The obligation under the refugee convention is to give temporary haven to people with the objective of ultimately returning them to their country. That is the objective: to help people over that period. Indeed, we have seen the repatriation of Afghanis and a whole range of other people. It is good that they have been able to be repatriated, that they have been able to go back to their country, rather than having to stay in refugee camps.
As the then opposition leader, Kevin Rudd advocated turning boats back. He also advocated an orderly immigration system. But what is so orderly about outsourcing our humanitarian refugee intake to a bunch of people smugglers? That is really what this is about. What is orderly about asylum seekers deliberately sabotaging their own vessels? And what is so orderly about what we are now seeing: this so-called policy on the run? We have seen this sort of plan that the Prime Minister seems to have hatched up with the Indonesians but we do not know how much it cost. We do not actually know what it is going to give the Australian people.
It is important to understand that this government cannot continue to spin the line that they have changed the very fabric of the immigration system of this country. In July last year you told everybody: ‘We are going to radically change detention values. We are going to dismantle the system and make changes in 26 programs across the department of immigration, including abolishing detention debt, the 45-day rule and a whole raft of measures.’ You cannot do this and then expect that it is not going to have some sort of consequence. Of course it is going to have a consequence. Blind Freddy could tell you that as soon as you dismantled your system you would necessarily have consequences.
In my 20 years as a lawyer with the Australian Government Solicitor, I did my fair share of immigration law. So let us not forget that it was the Labor Party that introduced mandatory detention. It is all very well now to seek to rewrite history and pretend it was the Liberals. It was the coalition who changed the laws and regulations to make sure that children and their carers were not in detention, and that was done many, many years ago. We continue to hear hysterical language from the Prime Minister. When you put him and Minister Evans under scrutiny about the changes, what do they do? They retort with hysterical language about the business of detention and children. Let us not rewrite history and be hypocritical about this.
If those on the opposite side want to go back into the deep dark recesses of Labor’s history on detention, we will do that, because that history is not very pleasant. So it is all very well for the Labor Party to come in here, turn around and criticise the Howard government for what we did, but I would like to see what guarantees this government has from the Indonesian authorities about the way they are going to keep people in detention. People may criticise us and, yes, the boats did stop, but we also stopped the unnecessary risks that those people took in coming out here. I would like to conclude my comments, therefore, by saying that even if you have got the cash, that is not the sort of system we should have. We should have a proper humanitarian program that does not reward people for doing— (Time expired)
I rise to refute Senator Parry’s assertions in this MPI this afternoon. I would contend that that is simply an opposition grasping at straws and at some sort of issue in order to become politically relevant in Australia at this point in time. We do need to go back in history, and we particularly need to go back to the last 11 years under the previous federal government, the Howard government, and the way in which this country needed to hang its head in shame at the way in which it treated people seeking to become refugees and seeking asylum in this country. We very proudly sign up to United Nations conventions and we very proudly sign up to protocols, and two of those are to do with the rights of people seeking refugee status when they come to this country. What we do not sign up to, and what we do not accept, is the fact that these people are so desperate that they put their lives in the hands of people who smuggle them to this country on boats and that they risk life and limb to get here.
Since coming to government we have changed the immigration and refugee policy in this country in some respects—those respects where we believe it was inhumane and unfair to people seeking refugee status. As Senator Evans said just last week at estimates:
What we said before the election was that we would retain the excision of offshore islands; we have. What we said before the election was that we would maintain mandatory detention; we have. We said we would maintain offshore processing on Christmas Island; we have. We also said we would treat asylum seekers in this country more humanely, and we have.
So we are very proud of the fact that we have, to a large degree, kept the same thrust in policy issues as previous governments. We do now process refugees on an offshore processing centre. We have maintained mandatory detention—but, of course, it is more humane and fairer—and we retain the excision of offshore islands. But what the people opposite me want to do today is have the general public believe that with our change in policies—our more humane treatment of people seeking refugee status in this country—we are somehow, out of the whole world, an isolated island when it comes to people movement and people trafficking.
That is certainly not the case. I want to go through some of those figures in a minute. The opposition really try to hang their hat on the fact that we have abolished temporary protection visas. They really want to back us into a corner and have us say, ‘All right, perhaps we should reinstate the policies of the Howard government and have temporary protection visas.’ I say this in the context of not ever hearing Senator Fierravanti-Wells or Senator Parry in the Senate or Dr Sharman Stone in the House of Representatives iterate what their policy would be at this time. Nobody standing opposite me this afternoon is going to stand up and say, ‘We blame the Rudd Labor government for what is happening now.’ That will be their line. They will not be able to put an alternative policy before this chamber this afternoon because they do not have one. They cannot even tell us if their policy is to reinvent and reintroduce TPVs.
We announced as part of our 2008-09 budget that we would abolish TPVs—the regime for asylum seekers. As I said, the opposition consistently refuse to confirm whether they will reintroduce TPVs. They claim that the abolition of TPVs has caused these boat arrivals. They say it is one chip in our policy change that is causing this influx of people. They are wrong, of course, because TPVs did not stop the boats arriving. In the four years from December 1997 to November 2001 there were a total of 12,651 unauthorised boat arrivals. So the introduction of the TPV regime in late 1999 did not stop the boats. By October 2000, the rate of UBAs—unauthorised boat arrivals—was clearly trending upwards. There was no correlation between the introduction of TPVs and diminished boat arrivals. In fact, under the Howard regime they increased. From December 1998 to November 1999 there were 3,042 boat arrivals, from December 1999 to November 2000 there were 2,921 boat arrivals and between December 2000 and November 2001 there were 6,540 boat arrivals.
People granted TPVs did not leave Australia either. This is another myth that the opposition want to perpetuate and have you believe. By the time the TPVs were abolished last year, nearly 90 per cent of people initially granted a TPV had been granted a permanent protection visa or another visa to remain in Australia; 11,206 people were granted TPVs and, of these, 9,841 were granted a permanent protection visa. They were genuine refugees and they have stayed in this country. Even the previous government had realised that TPVs were failing and on over 300 occasions they either allowed TPV holders to apply early for a permanent protection visa or lifted the bar on applying for a PPV.
The issue is really, no matter what rhetoric you hear from the other side, that the introduction of the TPVs actually saw a spike in the number of people arriving by boat in this country and seeking refugee status. We never talk about the number of people who have overstayed their visa as a result of World Youth Day last year. We do not hear the opposition talking about the number of people who arrive here by plane on some other form of visa—a business migration visa or tourist visa—and overstaying and seeking to stay here by other means. This is because the politics, rhetoric and headlines are about boat people. The opposition still have not let go of the campaign they ran in 2001 capitalising on the misery and suffering of people trying to seek refugee status in this country.
Let me talk about the global pressures pushing asylum seekers and the increase in their numbers right around the world. We are not alone in having to deal with this issue. We are not an isolated country having to deal with this problem. According to the UNHCR, there are 42 million people worldwide—almost double the population of this country—that are forcibly displaced. Up until the end of 2008, that included 15.2 million refugees. There are hundreds, thousands and millions of people out there in the world who are fleeing from their home countries for a whole range of reasons, mainly because they fear for their lives, and are seeking refuge in a country that will accept them as refugees under the United Nations conventions we have signed. The United Nations High Commissioner for Refugees has reported that the number of asylum seekers in industrialised countries increased by 12 per cent last year. The increases in unauthorised boat arrivals and the increases in applications for asylum in Australia are far lower than any other industrialised country. Yes, we have people seeking to come here, unfortunately by boat, because they are so desperate, frightened and anxious to run away from the horrible and rabid conditions they leave behind in their country, but we are not alone in the world.
We are experiencing a far lower increase than anywhere else. For example, last year 15,300 people tried to enter Greece and 36,000 people tried to enter Italy. The figures for 2007 to 2008 show that in Italy there was a 122 per cent increase, in Canada a 30 per cent increase, in France a 20 per cent increase, in The Netherlands an 89 per cent increase, in Switzerland a 53 per cent increase and in Australia a 19 per cent increase. We are seeing an increase in the number of people seeking to arrive here by boat, but the number of people seeking refugee status around the rest of the world, particularly in the European countries, has dramatically increased. They get there by truck. They are getting there in the back of lorries. They are getting there in boats. We are lucky that the only way you can get here is by sea. We do not share borders with other countries. However, people need to realise that there is a massive movement worldwide and we are part of that worldwide movement of people seeking to flee the countries in which they are feeling oppressed.
Our stance is that we are humane. We have said, and the Prime Minister and Senator Evans have said, that the government has ended arbitrary and indefinite detention for children, and no children are now behind razor wire fences, as we saw under the Howard government. Our processes are compatible now with those of the UNHCR. We know that the UNHCR was incredibly critical of the former government’s treatment of asylum seekers. We have ended the temporary protection visa regime and the Pacific solution.
As Chair of the Senate Standing Committee on Legal and Constitutional and Affairs, and as deputy chair of that committee for many years, I have sat at estimates and heard how dysfunctional the department was, how inhumane the policies of the previous government were and what an absolute waste of money the Pacific solution was. Hundreds of thousands of dollars were thrown away each year on the Pacific solution but, at the end of the day, all of those people were taken into the country as refugees anyway. There was a definite need for us, as a new government, to make a dramatic U-turn when it came to changing our policy on immigration and the treatment of refugees.
But what we will not tolerate is people capitalising on these people and smuggling them here by boat. We have retained the excision of offshore islands and we have maintained mandatory detention and processing on Christmas island for unauthorised arrivals. Our clear message to people thinking of entering Australia by boat and seeking refugee status is: no matter how you get here, if you are not a genuine refugee you will be sent home—and quickly. We have invested a record amount on surveillance and interception. In the budget, we announced an additional $654 million to combat people smuggling.
We have also set aside $44 million to tackle the problem at its core. The previous government shied away from a dialogue with Indonesia, did not actually have any cooperative arrangement with Indonesia, did not work with Indonesia and did not have the confidence of Indonesia to look at it as a partnership. But we have done that. Our Prime Minister flew to Indonesia and had direct talks with the President of Indonesia on a one-on-one basis. We have the confidence of Indonesia. We are going to work at the source. We want to tackle the criminals, the people smugglers, who take money and commit crimes at the expense of the misery of others. We have enhanced Indonesia’s border movement alert system. We have enhanced the capacity of countries in South-East Asia to collect and share information on people smuggling and to cooperate in addressing irregular migration.
We have expanded the transnational crime unit network, which means we are putting additional AFP liaison officers in key strategic locations. Since December 2008 there have been 82 disruptions by Indonesian national police of planned smuggling ventures to Australia involving about 1,494 persons. Since December 2008 the AFP have charged 48 people with people smuggling under the Migration Act 1958. This relates to 26 irregular maritime arrivals involving 44 alleged crew members and four alleged Australian based organisers. What we are trying to do is tackle the problem at its source. It has nothing to do with the change in our policies, despite the rhetoric we hear from the other side. As I said, the introduction of TPVs actually saw a spike in the number of boat people arriving in this country. It is the case at the moment that we are part of global pressures, and what we are trying to do is tackle this at its source.
The opposition is grappling with policies. The Joint Standing Committee on Migration handed down a report this year which was unanimously endorsed by the opposition. In fact, the key recommendations were all signed off, even by Dr Sharman Stone. The opposition has consistently refused to confirm that they will reintroduce temporary protection visas. My challenge to the people on the other side who continue to speak in this debate is this: stand up and, in your first couple of sentences, tell us what you would do, tell us what your policy would be— (Time expired)
I rise to contribute to the debate on this matter of public importance. Sadly, I do not believe this is necessarily the best forum in which to find a better solution for managing the mass movement of people into Australia. We need to see a constructive debate which outlines our responsibilities as signatories to the refugee convention and our responsibility to Australians who are ashamed of the days of the Tampa. I believe Australians have moved past the dark days of the Tampa. Most people understand the need for compassion and rational thinking when dealing with the needs of those who are seeking our help and protection. Attempts to claim political mileage by dog-whistling fear and hatred will not sit well with Australians, who are thankful that the days of locking children behind barbed wire in a remote desert are over. I believe Australians are thankful that we have moved on from those days.
What we need to be doing is not arguing about the pull factors and push factors but discussing what we will do for the people who are seeking protection and calling out to us for help—and we know that there has been an increase, as there was in 2001. We know that the numbers have risen dramatically over the last few years. In 2001 there was a peak in the number of people seeking asylum in Australia and around the rest of the world. Since 2007 the number of people seeking asylum and refuge has grown not just in Australia but in the rest of the world as well. Senator Crossin went through a number of those figures, so I will not take up my time doing that. It is enough to say that, despite the increase in the number of refugees seeking asylum around the world to 42-odd million, Australia takes in and cares for only one per cent of the world’s refugees. It is not an awful number of people. We have a responsibility to find out how we can stop people from jumping on leaky boats and taking that treacherous trip across the high seas. Of course it is not safe, of course we would prefer people not to do that, so let us discuss what we can do to help those people have their claims assessed fairly and humanely in the hope that they will be resettled somewhere within the region—and that includes Australia.
While the Rudd government claim, rightly so, that there has been an increase in people seeking protection around the world, we have not increased our humanitarian intake. In fact, the Rudd government takes fewer people through its humanitarian intake than the Howard government or Paul Keating’s government did. For a man who says that he is tough but humane, he needs to rethink the number of people to whom we are prepared to open our arms and assess their claims for protection. We need to see an increase in our humanitarian intake. We know that we can do that. It is simply about assessing our priorities and responsibilities at a time when people around the globe are calling for our protection.
I want to debunk a number of the myths circulating in this debate of late. The first one I want to tackle is in relation to those people seeking asylum who come by a boat or by a plane, those unauthorised arrivals. They are not illegals. As we know, it is perfectly okay to arrive in Australia and seek protection and to ask for your claim to be assessed. If you are a refugee then we will find somewhere to have you resettled. If you are not a refugee, then you are sent home. Going through that process and asking for us to assess your claim is not illegal. You are actually protected under international law and under our Migration Act. It is not illegal to seek protection in Australia. Those people who come to Australia seeking our protection in that way and those people who are accepted do not eat into the quota that we take in through the UNHCR process. Our budget papers prove that. There are two different categories for how people arrive in Australia and pathways by which they can seek protection. There are those people who are assessed offshore in refugee camps or through the UNHCR process and those people who come to Australia directly seeking our help. The myth that one person is taking the place of another is simply not true. To those senators in this place who continue to repeat that type of rhetoric and use it as a dog whistle to play refugees off against each other, I suggest that they pull out their 2008-09 budget papers and have a look. They will find those two groups are categorised quite differently. We have allowed for the separate intakes.
The other issue I want to tackle concerns the fact that the majority of people who seek asylum in Australia arrive by plane. In fact, 96 per cent of them arrive in Australia by plane and only four per cent of them arrive by boat. Where are the fear campaign and the dog whistling of hatred around Australia’s biggest people smuggling effort, Qantas Airways? There simply is not one, because the same fear is not whipped up about those who arrive by plane as is it through images and the unknown that some in this place would have us believe about boat people. The majority of people who seek asylum in Australia come by plane. They do not come by boat. The vast majority of those who arrive in Australia seeking protection after crossing that treacherous ocean are shown to be genuine refugees, because they are the people who are most desperate. They are prepared to do that because they have no other option than to put themselves and their families on a boat in the vain hope that somebody will help them or that somebody will offer protection. If it was really as easy as people think, why would they not sell everything they own and just jump on a Qantas flight to Australia? Because that is not the situation they are leaving. We need to have a rational debate about this. We need to debunk the myths and get on with providing a real solution.
I would like to address the issues raised by Prime Minister Kevin Rudd and the claims by the government that there are no children detained behind barbed wire. I accept there are some good things in the changes that they have made. Ending the detention debt and ending temporary protection visas are good things that the government have done. These are things that the Australian public wanted to see happen under the Howard government; and in fact they would have kept pushing the Howard government to do them if there had not been a change of government. If we honestly believe that children should not be held behind razor wire and detained then we need to look at the conditions and the treatment of the people we simply handed over to Indonesia in the last few weeks. There are no guarantees that the children on the two boats in Indonesian waters this week will not be detained in dreadful conditions. We need to ensure that, whatever agreement we are able to strike with our regional partners and neighbours, people’s rights are upheld and they are treated humanely. It is not good enough to say that it is not Australia’s problem. We need to be part of the solution, but we need to set the ground rules. We accept that people should be treated humanely and fairly, they have their claims for asylum assessed quickly and, of course, Australia needs to play a role in resettling them.
The government must articulate whether it is now government policy that any boat that reaches Australian waters or international waters and is intercepted by Australia—or, at our beck and call, intercepted by somebody else, as we have seen of late—will be returned to Indonesia. Or will some of them come here? What is the resolution for making sure that their claims are assessed, that they are treated fairly and that we play a role in their resettlement? The Prime Minister must answer this question: is it new government policy that all boats intercepted will be sent to Indonesia? That will be the difference between his policy and the Howard government policy. We need a solution that actually upholds human rights, understands Australia’s obligations and ensures that people and the needs of people are at the centre of the arrangement.
This evening I want to talk about the 45 boats that we have had on the west coast and north-west coast of Australia since August last year. I believe that, potentially, one arrived during question time today—if not during question time then shortly prior to it.
Mr Steve Cook, the chief of mission for the International Organisation for Migration, Indonesia, in December last year said:
People smugglers have clearly noted that there has been a change in policy and they’re testing the envelope. Up until about a year ago there was very little people-smuggling activity. Over the last year there’s been a considerable up-kick … There are rumours of a lot of organising going on.
That was almost 12 months ago. In October this year, UNHCR representative Richard Towle said:
I think perceptions of policy can certainly play a role in people smuggling. They have a product that they need to market, and to show that Australia is a place where refugees can get fair and effective refugee protection is something that is understood.
It is all about the messages that have been sent, and it is crystal clear that the wrong messages have been sent by a government that has completely lost control of this vital and important area of public policy.
The previous government learned through painful experience that clear and unequivocal signals must be sent, particularly to strife-torn regions throughout South-East Asia and the Middle East, in order to dissuade people from getting aboard boats and paying people smugglers. It was a long and painful experience, and after 2001 we got it down to virtually a handful of vessels every year. The fact is that there is such a huge amount of money in this. The trade is lucrative not just to the people smugglers but to the boat builders, to the authorities in some of these countries and to the governments of some of these countries. Massive amounts of money are involved. This foolish Australian government has been totally asleep at the wheel, naive and negligent.
The 45 boats that have been here in many circumstances have not had a crew. What does that say? Obviously, the people aboard these boats have paid for the use of the boat but have not anticipated the return of the vessel. I point out that on 28 June a vessel carrying 194 asylum seekers, intercepted 24 kilometres north of Christmas Island, had no crew. These people were sailing the boat themselves. They obviously had the resources to purchase such a large vessel. On 11 July 2009 a vessel carrying 73 alleged asylum seekers was intercepted north-west of Christmas Island—again, no mention of a crew. On 13 August a boat carrying 77 people was intercepted 21 nautical miles north of Christmas Island—no crew. On 29 August, 52 people on a boat with no crew were intercepted. It is very clear that there are a whole host of commercial issues underlying what is going on with respect to our border protection.
This dozy, lazy government is epitomised by the performance of Mr Bob Debus who, about four hours after SIEV 36 was blown up at 10 o’clock in the morning, was saying, ‘I know nothing more than has been reported in the media.’ Thankfully, the Prime Minister woke up to what a woeful selection of ministerial talent that had been and we got rid of him. Now, I hope, we have people who are better, but it is yet to be seen. There have been 45 boats in one year—one today, one yesterday, one the day before, and so it goes on. Two thousand people apparently are now on Christmas Island.
The government have simply lost control. So what do they do? They want to subcontract our sovereignty to the Indonesians. Do you think they will tell us what it is going to cost us? Do you think they will tell us whether it is by head, by boat, by length of stay in Indonesia? Do you think there will be any transparency? The Prime Minister does one thing to confront every problem: he reaches into the breast pocket of his coat and pulls out the chequebook. Then his hand goes into the other pocket and pulls out a pen and he says: ‘How many noughts should I put on? How many noughts, Mr President of Indonesia, would you like to run our boat people problem for us?’
Where has the government got us so far? There is overcrowding on Christmas Island. We have had to provide bunk beds and portaloos, to the exclusion of Australians on Christmas Island. We are making goodness knows what payments to Indonesia with no explanation to the public. We are now transferring a lot of asylum seekers to Darwin in clear breach of an election promise. Several Navy sailors, I think it was four, were blown up on board one of these vessels. That is what this government has delivered to this argument—the lives of our own personnel are at risk. Of course, the last and most important thing is that women and children are on the high seas. This government has learnt nothing from the several boats that were sinking or had sunk when those aboard were rescued.
Why is it that so many young Afghan men are coming to this country on these boats while our best and finest young men are in their country fighting the Taliban? This government is a disgrace on this issue. It is gutless, it has been suckered and it has done everything conceivably wrong here, yet our young men are over in the countries where these people are coming from trying to protect their best interests. It should stop.
Our policy is our record. We closed the door, and everybody knew we had. We closed it properly and we had great success on this issue. I am absolutely appalled at the huge degree of politics and inaction on this subject. If one of these boats had come through Sydney heads, in public policy terms all hell would have broken loose. If one of them had been seen off Brisbane or had been down to Melbourne, where the Prime Minister’s political future lies, something would have been done. But because it is Western Australia—because it is a vast area of Aboriginals, pastoralists and miners—no-one in Canberra gives a fig. So we will go to Indonesia, pull out the chequebook, put a whole stack of noughts on the cheque and then pretend we have not done that and try to hide it from the Australian public. Those people are going to be dragged off that boat today, they are going to resist, and we will see how good at public policy Indonesia is.
I am pleased to have this opportunity to speak on this very important issue. We have seen here today another illustration—as if we needed one—of the complete and total political bankruptcy of the Liberal-National Party opposition. The opposition would have us believe that Australia is facing some sort of vast crisis of border security and that somehow in the last two years our border security regime has collapsed. This is, of course, complete nonsense. Let us be clear about the politics of what the opposition is doing here today. We all know what is going on: in running this cheap, cynical, populist scare campaign, those opposite are desperately trying to divert the attention of the public away from their own complete failure to get to grips with the great issues confronting Australia today. This is dog whistling to a xenophobic instinct that they hope and pray still exists in the Australian community.
Let us remember what road brought the opposition to this dreadful point. They opposed the government’s prompt and responsible measures in response to the global financial crisis—measures which have now saved Australia from the great recession. The opposition are blocking the government’s Carbon Pollution Reduction Scheme because they cannot agree amongst themselves on a policy for action on climate change or, indeed, on whether climate change even exists. The opposition opposed the government’s investment in Australian schools. They opposed the government’s investment in the National Broadband Network. They cannot agree on a policy on industrial relations and will not rule out bringing back individual workplace contracts.
This is the opposition that has completely failed to come to grips with the great issues of Australian politics. On all of these policy issues—policy issues that the Australian public actually cares about—the opposition have completely and absolutely failed. They either have no policies or they have multiple policies coming from various self-appointed spokespeople. Their only real policy is to use their Senate numbers—their numbers in this place—to frustrate the mandate of the government. It is in these circumstances that a desperate, divided and demoralised opposition, unable to agree on policy, have moved to finally grasp the last straw left to them. As Annabel Crabb wrote about Malcolm Turnbull recently, ‘When your back’s against the wall, often the best policy is to create a diversion.’ Today, we are seeing that diversion. Today’s diversion is the oldest and grubbiest divisionary tactic in the book in Australia politics: a campaign based on the fear of immigrants and immigration.
One senior Liberal recently described the member for O’Connor as the ‘crazy uncle’ who turns up at the wedding. On this occasion, it would appear that the crazy uncle has found many other relatives. They have seized the microphone and they are presently ruining proceedings. Nowhere is that clearer than in this Senate chamber. Here the crazy uncles rule supreme. Not only is this campaign being run by the Liberal Party a cheap, grubby and nasty one but, most importantly, it is nonsensical in a factual sense. The opposition’s repeated assertion that Australia’s border security regime has changed since the Rudd government came to power is just factually false. We have retained the excision of offshore islands and retained mandatory detention and processing on Christmas Island for unauthorised boat arrivals. The Royal Australian Navy continues to work effectively to prevent unauthorised boat arrivals in Australia. The government have invested a record amount in surveillance and interception. This year we announced an additional $654 million to combat people smuggling. Over the past year there have been 82 disruptions of planned smuggling ventures to Australia by the Indonesian National Police, and the Australian Federal Police has charged 48 persons with people-smuggling offences.
Since the opposition are so critical of the government’s policy, it would be reasonable to assume that the crazy uncles opposite have an alternative policy of their own. Alas, we know that is not their form. It is reasonable to assume that if the opposition came to government at the next election they would, as they insist, put in place a more effective policy than the one they are currently so critical of. Presumably, they would want a return to the policies of the Howard government, since they continually extol the success of the Liberal government in those years. But, when we look at the facts, what do we find? Whenever the opposition shadow minister for immigration and citizenship, Sharman Stone, has the opportunity to confirm that a Liberal government would bring back the Howard government policy, she dodges and wriggles and tries not to answer the question. She praises the Howard government’s policies but then will not say whether she favours returning this country to them. When Sharman Stone appeared on Lateline recently, Leigh Sales said to her:
Every time you’re asked that question you don’t answer it. You say what Kevin Rudd is doing is no good, you say that he’s softened the policies and therefore opened the doors to asylum seekers. But you stop short of saying that he should re-embrace the measures you had that you claim are more successful. Why is that?
What was Sharman Stone’s answer to this question? She said:
We are saying that he should look at the whole suite of measures which worked before. Now these are different times, it’s 10 years later. But he must address this problem.
There we have it. This was just one of a series of interviews in which Sharman Stone and senior figures opposite have refused to say what the opposition’s policy is on asylum seekers. She will not say whether she wants a return of the previous policy or whether she wants some new policy. The fact is that the opposition do not have a policy on asylum seekers. The reason they do not have a policy is that they are hopelessly divided on this question, as they are hopelessly divided on every significant question facing this country. It is the same reason that they do not have a policy on climate change or a policy on industrial relations: they are a desperate, divided and demoralised opposition and they have a weak leader whose poor judgement is now notorious.
We on this side are very happy to debate this issue. We are also happy to defend the changes that the Rudd government have made to policy in this area. I also note that, when the changes were made, those opposite voted for them, something they seem to have forgotten in recent days. The fact is that the Howard government’s policy was ineffective, unnecessarily expensive and—most critically—inhumane. The Howard government cynically exploited this issue for cheap political gain. The opposition is now trying to repeat the trick, but, with its usual incompetence and inability to speak with one voice, even this last stunt has fallen flat.
The opposition keep telling us how effective the Howard government’s policies were, although they will not, of course, commit to reintroducing them. The combination of the Pacific solution and temporary protection visas was, in fact, an ineffective policy. Between 1999 and 2007, over 10,000 people who had arrived by boat were given TPVs. By the time TPVs were abolished by this government, nearly 90 per cent of those persons had been granted permanent visas and only three per cent of them had departed Australia. Those are telling statistics. This harsh regime, which those opposite mourn for, is, in fact, a policy that can be shown to have dramatically failed.
During the same period, over 1,600 people were sent to Nauru and Manus Island. Over 70 per cent of these persons were ultimately resettled to Australia and other countries. Sixty-one per cent of them were resettled in Australia. This spectacularly unsuccessful policy cost Australian taxpayers $289 million. The fact is that our policy is more effective, it is cheaper and it is more humane than the failed policies of the Howard government—the failed policies that tried to extol the ‘virtues’ of meanness and viciousness but of course completely failed in their attested mission, which was to prevent asylum seekers seeking permanent homes in this country.
It is a matter of fact that we face increased pressure at our borders—as do all Western countries. According to the UNHCR, the number of asylum seekers in industrialised countries increased by 12 per cent in 2008. But increases in unauthorised boat arrivals in Australia are far lower than in other industrialised countries In 2008 we saw 162 unauthorised boat arrivals. Greece had 15,300 and Italy had 35,000—greatly increased numbers in both cases. Applications for asylum have increased by 19 per cent in Australia compared with 30 per cent in Canada, 90 per cent in the Netherlands and 122 per cent in Italy.
The core proposition that those opposite are trying to make—that is, that changes to our laws have attracted increased unauthorised migration to Australia—is a nonsense. The idea that asylum seekers fleeing conflict and poverty in places like Sri Lanka and Afghanistan have first undertaken a regulatory impact study and carefully thumbed through press releases is of course a nonsense. It is a nonsense that those opposite will try to propagate. It is a nonsense that those opposite will try to push into the living rooms of Australian voters. But it is of course nothing more than a cheap and unsustainable lie.
A government when it is elected has a choice. It can choose to discharge its fundamental responsibility of national security through ensuring effective immigration and border control or, on the other hand, it can send a signal to the global community that on these matters Australia is a soft touch. If a government is actually serious about discharging its fundamental responsibility, about ensuring the security of the nation and its people—as the Rudd government claims it is—then it must be prepared to be judged on the realities and the outcomes that flow as a consequence of its policy decisions. That is what Mr Rudd said in a speech to the parliament on Thursday, 20 June 2002 when he was speaking on the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and reflecting on national security under the Howard government—and I quote:
It depends on concrete measures taken in each of these substantive domains so that this nation is truly secure, not simply projected to be secure through the political rhetoric of this government.
Condemned by his own words. Those fateful words are a stark acknowledgement by the now Prime Minister that the Australian people are entitled to judge his government on their outcomes rather than Mr Rudd’s rhetoric.
In undertaking this judgment it is blatantly clear for all to see that Rudd Labor, despite its media spin and despite its farcical—indeed, nonsensical—tough words, has failed Australia and Australians on border protection. Rudd Labor has failed the first responsibility of the Commonwealth government—to ensure the security of the nation. Based on the encouragement that Mr Rudd has offered the people smugglers through his policies, his words and actions should be seen for what they are: nothing more than cunning rhetoric and media spin—after all, on a day when it suits his purpose, Mr Rudd, with his chameleon-like characteristics, lays out the red carpet to the people smugglers and, in the next breath, when they actually take up the offer of the red carpet, he refers to them as ‘the vilest form of human life’. Clearly, the chameleon’s utterances on illegal immigrants are all about rhetoric and media spin. He changes his words to suit the audience. Then we have the Minister for Immigration and Citizenship’s statement that ‘the Rudd Labor government remains absolutely committed to strong border security measures’—again, nothing more than rhetoric.
These statements alone should demonstrate to the Australian people just how out of touch the minister and Labor are and, what is worse, just how far they will go to mislead the Australian public in relation to the failure of their policy on border security. Which part of ‘Labor’s gone soft on border protection’ don’t they understand? Is it the part where the evidence shows that their soft border protection laws have given the green light to people smugglers? Or maybe it is the fact that, as at 25 October, the 17th unauthorised boat arrived in Australia in the last eight weeks? Add that to the fact that what we now have is the 45th boat arriving in Australian waters—
What?
The 45th boat, Senator Ronaldson—ask me again tomorrow and I have no doubt that it will be 46—since they softened their border protection policies in August 2008. Over 2,030 people have now been guided to Christmas Island. Over 2,030 people have put their lives at risk in an attempt to enter Australia illegally. For a Prime Minister who, in his speech to the parliament, acknowledged that a government must be judged on its actions and not on its rhetoric, this evidence demonstrates that, as the leader of this country, he should stand condemned for his actions, his government’s policies and the betrayal of the Australian people. Mr Rudd has put his head in the sand and refuses to admit that it is his policies that have led to the deadly surge in people smuggling. Mr Rudd has created the problem and Mr Rudd must now find the solution.
This will require more than just the Indonesian solution, which is, ‘Let’s hand out Australian taxpayers’ money to the Indonesians and simply pay for more detention places in that country.’ That is Mr Rudd’s new people-smuggler strategy—pay the Indonesians to intercept boats on Australia’s behalf and then hold the asylum seekers in their detention centres. Remember Mr Rudd squealing about the alleged ill-treatment of the unlawful boat people who were sent to Nauru as part of the so-called Pacific solution? At least on Nauru there were Australian government officials overseeing the management and the treatment of these people. Is Mr Rudd going to insist upon Australian officials overseeing the management and the treatment of the people in Indonesia? I think not. All he is interested in is, as Senator Johnston said earlier, whipping out the chequebook and asking, ‘How many zeros do I write on the cheque?’
But the Australian people are not unintelligent. They know that the money to pay the Indonesians has to come from somewhere. Which part of the budget is going to be plundered to pay for Labor’s dismal policy failure? Which programs are going to be cut to pay for their dismal policy failure? This is a disgraceful policy failure by Rudd Labor, and the Labor Party should stand condemned for their betrayal of the Australian people.
Order! The time for this discussion has concluded.
On behalf of the Attorney-General, Mr McClelland, I table a ministerial statement on the Commonwealth’s preparations for the bushfire season.
by leave—I move:
That the Senate take note of the document.
On behalf of the opposition, I want to thank the minister for this paper. Obviously, as a Victorian, I am acutely aware of the dangers of bushfires. Indeed, I have fought them and I know the damage they can inflict. In fact, in Victoria the greatest threat of natural disaster comes from bushfires. In my speech today I have drawn extensively from an excellent speech given by the Hon. Fran Bailey MP, the federal member for McEwen, to the Combined Emergency Services 31st annual conference on Saturday 24 October entitled ‘Dealing with disaster: Victoria fires 2009’. As I said, I have drawn extensively from that speech for my comments today.
Since 1851, some 815 people Australia-wide have been recorded as having died in bushfires. Significantly, 561 of those deaths—more than two-thirds—have occurred in Victoria. Most recently of course we faced the horrific Black Saturday fire in February this year. I think people like to think that fires of this magnitude will never happen again. I go back to 1851 and the Black Thursday fires. I think people would have been saying that then, and nothing has changed. Put simply, unless we change the way we do things, it will happen again. But it appears, quite frankly, that the attitude of almost every government since 1851 has been to put its head in the sand and hope that things will not be as bad next time. Hope is not a policy option.
After the Canberra bushfires, the then coalition government established a bipartisan parliamentary panel. It was arguably the most comprehensive examination of bushfires ever conducted. The committee’s report made three key recommendations: (1) early warnings save lives; (2) local knowledge matters; and (3) hazard reduction is vital. While these might sound as if they are stating the obvious, time and again these fundamental points have been downplayed or ignored. Only last weekend, my colleague the member for McEwen made exactly those points at the conference I referred to earlier.
In the ministerial statement there was a section on prevention, but it was with some disappointment that I looked through the minister’s statement and found that there was no mention of hazard reduction. Under ‘prevention’ there is great talk about greater penalties for arson. The coalition welcomes and supports those moves as far as they go. But you cannot criminalise a lightning strike. You cannot criminalise a branch falling against a power pole. If you are serious about prevention—and I mean really serious—then you need to have a substantial program of hazard reduction. In McEwen, the seat hardest hit by those Black Saturday fires, some fire access routes were barred with padlocked gates and signposted as conservation zones. We all believe in conservation, but for tens of thousands of years Aboriginal Australians judiciously used fire to clear out dangerous undergrowth. Why are we afraid to do the same? Preventing the build-up of fuel load was the No. 1 submission of all those received by the Black Saturday royal commission.
I will just deviate briefly to indicate that I support the moves by the Victorian state government in relation to allowing landowners to clear around their homes. That is long overdue. But there is already push back from some of the local government councils, who are potentially responsible for this occurring again. Even in the Dandenongs my understanding is that if you did not have trees and bushes up against your walls you were breaching by-laws. That is extraordinary.
I want to go back to the fuel load question. It does not have to be just burning. I am informed—and again this came from Mrs Bailey—that in Portugal volunteers use heavy equipment and hand clearing to clear roadsides to a minimum of 10 metres and—this will interest Senator Brown and his colleagues who are here today—that this happens even in World Heritage areas.
I will go back to preparedness and response. We welcome the government’s promises relating to preparedness and response contained in the minister’s statement. Interaction between all levels of government and the emergency services, both paid and volunteer, is critical as we head into this year’s fire season. People need to know what is happening. One of the great tragedies of the Black Saturday fires is that lives were lost because people had no access to timely information. Stay or go can only work if you know what you are staying to face. A system of uniform and early fire detection is a national challenge which we must all meet. I note, however, that the Commonwealth is providing $15 million for the establishment and operation of a national emergency warning system. This is being trialled in Victoria. It will not reach mobile phones, yet the Western Australian system, State Alert, can already deliver a warning by landline, fax, email and mobile phones and can drill down to a specific address. It has been tested. It works. It has been offered to the Victorian government for free, so why has this offer not been accepted? Why are we spending $15 million reinventing the wheel?
I now want to turn to recovery. Bushfires have occurred and bushfires will come again. Helping communities to recover from the losses is an essential role for governments, but we are concerned about the top-down emphasis in the minister’s paper. We would prefer to see a more bottom-up approach. Around the world, a greater emphasis is being placed on organised community action and control in determining the nature of the response to the disaster in the community. It is their house; it is their street; it is their town; it is their community. It is local people who are best placed to identify their immediate and long-term needs following a bushfire disaster. Metaphorically, local communities are crying out, ‘Give us the tools and we will do the job.’
I will now defer to my colleague Senator Brandis for the remainder of the time available.
Thank you. I join Senator Ronaldson in the remarks that he has just made. I want to add a few words of my own as the shadow Attorney-General, for it is within the Attorney-General’s portfolio that emergency management arises. I begin by expressing my gratitude to the Attorney-General, and his office, for the courtesy of the briefing which he provided to me on 19 October with the senior staff of Emergency Management Australia, in which the details of the ministerial statement were thoroughly canvassed with me and my office.
This is not a party political issue, of course, and, without in any way demurring from some of the observations that have just fallen from Senator Ronaldson, the opposition, so far as it goes, welcomes the measures outlined in the ministerial statement. The prevention, preparation, response and recovery of natural disasters in Australia is a combined effort of local communities and of all levels of government. This is the way it ought to be. During a bushfire emergency, the lead response sits with the state authorities that command and support both professional firefighters and the many thousands of volunteers who are the backbone of our front-line protection of communities across Australia.
The Commonwealth, too, has an important role to play during bushfire emergencies. Within constitutional parameters, Commonwealth governments of both political persuasions have done much to support communities and those who protect them from disaster. The Commonwealth government, for example, can ensure that valuable foreign firefighting resources are integrated into the firefighting effort. With coalition support, the Foreign States Immunities Amendment Act was passed in the previous sitting of this parliament to enable mutual exchange of resources and assets with foreign partners, the United States being the most important. US firefighters played an important role in the most recent Victorian bushfires, and it is in everyone’s interest to see that such exchanges continue without being impeded by liability issues. The Commonwealth also assists with financial support through the National Emergency Management Committee, providing matching funds to state governments for local initiatives.
The coalition is particularly proud to continue its support for aerial firefighting initiatives. The Commonwealth contributes most, however, in coordination and communication. The coordination role is to provide Commonwealth resources and assets as and where the state authorities require them, including, if necessary, defence assets and personnel. Centrelink staff can also be made available to assist with the 000 emergency line, in particular to screen nuisance callers.
The communications role attracted considerable comment in the course of the Victorian Bushfires Royal Commission. The lessons are being learnt from that, but I am pleased to be informed that amendments are being made to the Telecommunications Act to provide the states and territories with access to subscriber information in order to bring the national telephone based emergency warning system into operation. This, I am told, became operational on the first of this month. The Commonwealth, in partnership with the states and territories, is also looking at other information options which would free up the 000 service for genuine emergencies and enable warnings to be better targeted.
In conclusion, the opposition supports the ministerial statement. We welcome the initiatives that have been announced. We have some misgivings, as indicated by Senator Ronaldson, that perhaps it could have gone further in certain areas, but so far as it goes it has the opposition’s wholehearted support. In closing, might I take this opportunity to place on record on behalf of the opposition our thanks to the tireless and courageous work of firefighters and volunteers involved in recent bushfire emergencies in Australia not only in Victoria but also, even more recently, in Central Queensland. They represent the very best of the Australian spirit.
I rise today to also take note of the ministerial statement with regard to bushfire prevention and preparedness. I want to note that in 2001 COAG had before it a report called Natural disasters in Australia: reforming litigation relief and recovery arrangements. That report from 2005 acknowledges that significant limitations existed in national capability to deal with the consequences of a catastrophic event arising from natural, technological or human cause. It was suppressed in 2005 by the coalition, even though it acknowledged there were major gaps in our capability to respond to a major catastrophe and it made several recommendations. Bearing in mind this started in 2001, finally in 2005 we got recommendations. They identified gaps, like the lack of communication. They identified the fact that there was so little coordination around the country.
This report finally came out this year as a result of a FOI request from a TV channel. When asked at estimates why this had been suppressed not only under the coalition but also under the Rudd government since coming to power the answer was, and I find this quite extraordinary, that the reason they did not want it released was the picture that it painted—in other words, it might frighten people in Australia to know that Australia does not have the capability and preparedness to respond to a major catastrophe. I find that an insult to the Australian people, especially as since 2005 we have had a number of major disasters in this country—not least of which of course was the Victorian bushfires. We also had the heatwave in Victoria and South Australia which killed about 400 people last summer. This report asked things like, for example: what capacity have the states got for temporary morgues and what role does a national emergency management authority have in relation to this?
What came out of it all was that there is no capacity for the Commonwealth to intervene unless asked by the states. So it needed someone in Victoria to pick up the phone to Emergency Management Australia and say, ‘What can you do to help us?’ They could not actually intervene without Victoria asking them to. That is a ludicrous situation in Australia, because we know with climate change that there are going to be extreme weather events and they are going to be more frequent and more intense than anything we have ever experienced before. The bushfires in Victoria were a classic case of that. Tragically, it is only a matter of time until we could well have a fire that goes across two or three state borders at any one time—plus we could have a cyclone event in Northern Australia at the same time. So we could have a situation where emergency services in Australia are battling fires in one state, floods in another and a cyclone somewhere else, because of the realities of climate change and the realities of what is going on at the moment.
Yet when Senator Ludlam asked in estimates the other night if there was a proposal or an acceptance that we should have our operation fire chiefs from each state on Emergency Management Australia so that there is a national coordination of capability and planning, the answer was, ‘No, it is not proposed that the operation fire chiefs be on Emergency Management Australia.’ Well, frankly, that is silly. We need to have a situation where the onus is reversed. There has to be a Commonwealth power to enable Emergency Management Australia to take charge of a national catastrophic disaster and coordinate the response. So we need to reverse the onus from having people sitting waiting in Canberra for Victoria, or anywhere else for that matter, to pick up the phone.
I would like to pose a question, and this is rhetorical—the government does not have to answer; but I would like to know—was Emergency Management Australia, the Commonwealth agency from the Attorney-General’s Department responsible for coordinating operational response to all hazards, involved in the events of Saturday 7 February 2009 in Victoria? If not, why not? And did anyone in Emergency Management Australia pick up the phone and contact the Victorian government or any of its three fire services to offer assistance when it was apparent that the state was facing an extreme weather event, before the event happened? We have had media reports in the last week that the Russians offered some major firefighting aviation response. It was too late on this occasion. But if Emergency Management Australia and the Commonwealth had overall responsibility for the coordination of a national disaster plan, and had the operational chiefs from each of the states represented on that, you could be coordinating well before the event all of the services around Australia that may be needed in responding to any one event at any one time—plus looking at the opportunities for overseas assistance in the event of a major catastrophe. As I said, it could be flood, cyclone and fire all at once any time between November and March in Australia. That is our reality.
So, whilst I appreciate that the minister has come out with this statement, the fact is that when the firefighters union spoke to the Deputy Prime Minister she said there would be an audit from each of the states requested by the Commonwealth and presented before this year’s fire season; and that has not happened. The matter is now to go to a ministerial meeting in November and a COAG meeting in December. Frankly, that is too late, because we will already be well into the fire season. I understand that the government says, ‘We’re doing all these things that supersede that undertaking that the Deputy Prime Minister made to the firefighters union that there would be an audit of fire readiness.’ But, for example, have the states done as the Commonwealth asked and actually got this model legislation in place in terms of bushfire arson? I could guarantee that Tasmania will not have done that.
For years we have been calling for Tasmania to have a special arson flying squad at the beginning of the fire season to move around, because frequently the same people light the same fires in the same areas every year—and it is not as if they do not know where this might occur. We have ridiculous scenarios like the one where we had the Tarkine on fire because somebody drove a four-wheel drive in there, went off the road and rolled the car. They lit a fire and then left it and walked away. They went to get medical help. The fire got away and burnt the Tarkine. Have any charges been laid? No, they have not. Why? Because it was decided in Tasmania that the man lost his car—it was burned in the process—and therefore had suffered enough. What about the loss of not only the natural environment but also all the parks and wildlife infrastructure that was lost in the process?
So I am not happy at all that the states are being given so much responsibility here. I heard Senator Ronaldson say it is appropriate that local communities be given responsibility. I do not think that that is actually appropriate, given the potential scale, frequency and combination of a potential disaster in Australia. Certainly, local communities have to be involved and state governments have to be involved, but the onus should shift to the Commonwealth. We need a national disaster plan rolled out. It needs to be coordinated at the national level with representation from the operational chiefs in each of the states, and then it has to be coordinated with local government and local emergency responses.
We have a situation where some of these fire authorities in the various states do not even speak to each other. How ridiculous is that when you have a disaster? So I am glad we have this ministerial statement, but I think Australians need to realise that for several years these recommendations have been sitting here and nothing has been done. It is time for a shift in recognising the scale of the problem and that the response needs to be a national one, in coordination and collaboration with the states and local authorities.
Summer is fast approaching already and the bushfire season will be upon us quickly. The shocking events of 7 February are still vivid in most people’s memories. We cannot erase the terrible memories or the events which have happened. We have all grieved as a nation and felt the pain shared by those who have lost loved ones. We cannot bring back those who perished in this tragedy, and there are those who are scarred from it as well. What we can do, however, is make sure that we are best prepared to avoid such devastating loss of life.
It was horrifying to hear from the minister’s report that up to 50 per cent of all bushfires in Australia are deliberately lit. I cannot comprehend what would cause some people to engage in such destruction. However, what is clear is that we need a better system of tracking potential firebugs and also tougher penalties to discourage individuals from engaging in this kind of behaviour. The Commonwealth has drafted model laws which include prison sentences of up to 25 years, and it is time for us to get a move on and put these laws into place so that anyone who is tempted to deliberately light a fire this bushfire season will know the full consequences of the laws in place.
The government has also announced funding for bushfire prone regions, and this has the full support of Family First. We need to provide funding not only to help bushfire affected zones recover and rebuild but also to prevent these tragedies from occurring again. This includes money for early warning systems and firefighting equipment. These are matters which deserve bipartisan support and a united front by all Australians.
I want to turn to the very important issue of reducing fuel around homes and in the bush generally. I have been out to these fire affected areas, and the majority of people have told me they are angry and annoyed with the lockup mentality of the government, whereby they do not do enough fuel reduction burns. These people also blame the Greens, who are too concerned about locking up vast areas of bush for the safety of the environment, with little regard for humans. That is all well and good, but what about making the environment safe enough to also enjoy and to live in, making it safe enough so fire does not devastate the areas where we live and cause such devastating loss of life?
During the 2009 Victorian Bushfires Royal Commission, 485 submissions were received from fire experts, foresters and residents regarding burning off areas to rob fires of fuel. However, not one of the 51 recommendations in the royal commission’s interim report mentions fuel reduction burns. That means we will go into our next fire season in just a few weeks without any meaningful recommendations on managing the bush to protect human lives in an environmentally friendly way.
I also want to take this opportunity to thank all those firefighters, support staff, emergency services and other people who worked so hard on the day and also in the following weeks and months and right up to now. Thank you to all those people. It is a credit to all those involved.
I also rise to speak this evening on the comments made by the honourable Attorney-General. Others have referred to preparation, response and recovery; I just wish to speak of the first of the cornerstones of emergency response, and that is the question of prevention. I want to pick up, if I may, on a comment made by Senator Fielding, and that relates particularly to fuel reduction. We all know there are three main causes of fire: you have got to have ignition, you have got to have air and you must have fuel. The only comments that the minister actually made about prevention were in relation to arson, which of course is a means of ignition. He is quite right—50 per cent or more of fires in the bush are probably caused by people. But the point I wish to emphasise is that of fuel reduction, because if the fuel is not there in the first place to allow the sort of conflagration we saw in the Victorian fires—and we have seen it in others—then you do not get the severity of the fires themselves.
Prevention is far and away the most cost-effective method of attacking wildfires. It is the most neglected in bushfire management in Australia. As Senator Fielding said a moment ago, it is regrettable that none of the recommendations of the interim report of the 2009 Victorian Bushfires Royal Commission addresses fuel reduction, because it is in that area that we actually have the scope to achieve something. Equally, it is in that area that I believe the scope exists for the Commonwealth government to take a leadership role. To give you some statistics, very briefly, experts in the field—and that is led by CSIRO, departments of conservation and land management, and other land managers—would say for most southern eucalypt forests that you would need somewhere between seven and eight per cent of the forest burnt each year to achieve some sort of protection for communities. In Victoria, that figure is now down to less than a half of one per cent. Therefore, we regret-tably saw almost an inevitability in February of this year.
Prevention is an area that has the most urgent need for government attention. Land management, under our Constitution, is the responsibility of the states and we all know the role that local government, volunteer brigades and others play in protecting communities. But there is a very necessary role for the Commonwealth in developing a national bushfire policy to which all states and local governments can have input but which must be driven by the Com-monwealth. People would say, ‘Where does the role for the Commonwealth come?’ It comes in the enor-mous amount of expenditure. It is a regrettable fact that there is an argument that says that the more the Commonwealth throws into the response and recovery phase, the more it may appear to be rewarding failure, because had the circumstances not developed in the first place of the levels of fuel that we are seeing in the forests and seeing in our rural communities and those at risk we would not actually be suffering the problem. In the few moments I have to conclude, I simply say that Aboriginal communities over 30,000 years have led us in the way to go. Had they not led us that way, we would not actually have the forests that we have today. I fully support the role of the Commonwealth in national bushfire policy.
Debate adjourned.
Pursuant to standing orders 38 and 166, I present documents as listed below which were presented to the President, the Deputy President and temporary chairs of committees since the Senate last sat. In accordance with the terms of the standing orders, the publication of the documents was authorised. In accordance with the usual practice and with the concurrence of the Senate, I ask that the government responses be incorporated in Hansard.
The list read as follows—
Documents certified by the President
Ordered that the report be printed.
Committee reports
Government responses to parliamentary committee reports
The document read as follows—
Government Response to ‘A good house is hard to find: Housing affordability in Australia’
Report by the Senate Select Committee on Housing Affordability in Australia
1. Introduction
The Australian Government acknowledges that housing affordability is a significant issue. The reasons for this are complex and there are no overnight solutions. The Government recognises that there are a number of critical factors, many of which have been identified by the Committee, that are impacting on housing affordability.
One of the fundamental causes of declining housing affordability is that housing supply has not kept pace with demand, causing house prices and rental costs to increase. Industry commentators forecast a gap between the underlying demand and supply is likely to continue over the coming years without intervention.
The impact of the housing shortage, as it reduces affordability for home purchase and private rental, increases demand for social housing.
The ability of the social housing sector to meet an increasing demand for housing assistance is limited. Social housing is predominantly allocated on the basis of need and waiting lists are growing as more and more disadvantaged households find it harder to find appropriate accommodation in the private rental market. Of the 35,101 new allocations to social housing in 2007-08, 19,318 (55 per cent) were to those in greatest need i.e. they were homeless, their life or safety was at risk, their health condition was aggravated by their current housing, their housing was inappropriate to their needs or they had very high rental costs. 1
As well as those already in the social housing system, there are around 177,000 people on the public housing waiting list and around180,000 households in the bottom two income quintiles in private rental paying more than 50 per cent of their income in housing costs (Census 2006 – unpublished data).
An increasing number of people are finding themselves homeless or at risk of becoming homeless with a lack of suitable accommodation and services to support their needs. Around 105,000 Australians are homeless on any given night. On Census night in 2006, 16,357 of these people were sleeping rough – including 3,275 children accompanied by one or both of their parents. The number of rough sleepers increased by 19 per cent between 2001 and 2006 2.
A new approach to homelessness is required that provides people who are homeless with the support they need to access opportunities available to all Australians. This includes having somewhere safe and secure to live, being able to get a job, access services, connect with family, friends, the local community, and get help to deal with personal crises.
The Government has released a White Paper on Homelessness, “The Road Home: A National Approach to Reducing Homelessness, which sets out the agenda for tackling homelessness to 2020.
The White Paper sets a clear direction for reducing homelessness through two headline goals: to halve the number of people experiencing homelessness and to offer accommodation to all rough sleepers who seek it by 2020. These goals will be achieved using three key strategies:
Homelessness is a complex problem, but the Government is confident that by taking action now we can reduce homelessness over the next decade.
Australia’s Indigenous populations in remote areas present greatest level of housing need. One quarter of Australia’s Indigenous people live in remote areas. In 2004-05, 30.8 per cent of Indigenous people aged 15 years and over in remote areas, and 60.4 per cent in very remote areas, lived in overcrowded households. Including children, the proportion in very remote areas was higher still (63.4 per cent). Using data sourced from the Australian Bureau of Statistics, Community Housing and Infrastructure Needs Survey (CHINS) 2006, the average occupancy per dwelling in remote areas is estimated to be 8.8 persons per dwelling.
Overcrowding combined with Indigenous population growth means that more stress is placed on existing Indigenous housing-related infrastructure and stock in remote areas. The average house in remote areas in Australia has a significantly reduced life cycle (seven years) compared to public housing elsewhere in Australia which could have a life cycle of up to 30 years.
The Australian Government is committed to improving housing affordability and is aware that after many years of neglect, there is more to do to address housing affordability issues. Critically, there is a need for all levels of Government to work cooperatively to provide more opportunities for households to secure accommodation that meets their needs. That is why this Government has committed to a new National Affordable Housing Agreement with the States, Territories and local governments.
The new agreement encompasses housing assistance provided at all levels of government. It improves the ability of all governments to deliver affordable housing for low and moderate income earners – and maintains the funding levels of the programs it is replacing. The National Affordable Housing Agreement clearly sets out the roles and responsibilities of each level of Government – the Commonwealth, States and Territories and local government and provides greater accountability for outcomes at each level of government.
The NAHA is complemented by additional Commonwealth funding through National Partnership Agreements of $400m for homelessness, $400m for social housing and $834.6m for remote indigenous housing over 5 years. In addition the Australian Government has committed to investing $5.64 billion in social housing as part of the Government’s $42 billion Nation Building and Economic Stimulus Plan together with the assistance of the not-for-profit housing sector will construct up to 19,200 new public and community housing dwellings. 15,000 of those dwellings will be complete by December 2010. This is the largest single amount ever committed by an Australian government to social housing, and is vital to help us meet our target of halving homelessness by 2020.
Other measures are now being implemented, including:
This is the first significant new investment to improve housing affordability for all Australians in over a decade.
The Government’s responses to the recommendations made by the Committee are set out in Part 3 below. The Government considers that a large number of the recommendations made by the Committee are already being addressed, either directly or indirectly, by the Government’s new housing affordability measures. Some of the recommendations warrant further investigation. Where recommendations are specifically directed at States, Territories and local government, the Government is keen to work with them as appropriate to achieve better outcomes on housing affordability.
2. Background
On 14 February 2008 the Senate established a Select Committee on Housing Affordability to inquire into and report on the barriers to home ownership in Australia, including:
The Committee held 14 public hearings throughout Australia between 1 April and 7 May 2008 and over 100 submissions were received.
The Committee’s report, entitled ‘A good house is hard to find: Housing affordability in Australia’ was tabled and released on 16 June 2008. The report included 32 recommendations covering a wide range of issues which have either a direct or indirect impact on housing affordability or homelessness issues. While some recommendations were specifically directed towards State, Territory and local governments, the majority of the recommendations are issues that require consideration by the Australian Government.
3. Response to the Committee’s recommendations
Recommendation 2.1
The committee recommends that, given the very high levels of housing stress, overcrowding and homelessness experienced by Indigenous Australians, all levels of government should give priority to addressing their high level of unmet need for public and community housing under all existing programmes and the National Rental Affordability Scheme.
AGREE
The Government recognises the severity of the housing issues that face many Indigenous Australians. Through the Council of Australian Governments (COAG), the Commonwealth and State and Territory governments established seven working groups to progress its 2008 work agenda. These working groups included one focussing on housing issues and one focusing on Indigenous reform. Indigenous housing issues were considered by both working groups as part of the reforms to Commonwealth-State financial arrangements, specifically to ensure that Indigenous people have the same housing opportunities as other Australians. The COAG Working Group on Indigenous Reform highlighted Healthy Homes as a building block in its framework to address Closing the Gap in Indigenous Life Outcomes.
Improvements to the current poor standard of housing and infrastructure, and measures to address the high levels of overcrowding and homelessness in remote communities are critical to meeting the COAG endorsed targets addressing Indigenous disadvantage.
The Government has negotiated a new National Affordable Housing Agreement (NAHA) with the State and Territory Governments as part of the COAG reform agenda which came into effect from 1 January 2009. Indigenous housing and addressing the level of overcrowding in remote Indigenous communities is a reform priority within the NAHA framework.
Specifically, the Australian Government has, through COAG provided nearly $1.94 billion in additional funding for Indigenous housing in remote areas over the next ten years.
The Government has placed a high priority on housing outcomes for Indigenous Australians through the Housing Affordability Fund and National Rental Affordability Scheme. Proposals that maximise long term affordable housing outcomes for people with special needs such as people with disabilities, older Australians and Indigenous people are being be considered favourably in the assessment process.
Recommendation 4.1
In the interests of more informed discussion of arrangements to encourage affordable housing, the Treasury be asked to publish current estimates of various taxation and related measures affecting the housing market.
NOTED
The Government notes that estimates of tax and other measures affecting housing are currently being published.
The Tax Expenditure Statement is published annually. Estimates of the capital gains tax concession on owner occupied housing are being developed for the 2008 Tax Expenditure statement. The publication also estimates the tax expenditure from exempting certain regional and remote area employer provided housing from fringe benefits tax.
The Australian Taxation Office publishes Taxation Statistics annually. The detailed tables give estimates of negatively geared rental housing each year.
Recommendation 4.2
The committee recommends that Australia's Future Tax System Review Panel consider the implications for housing affordability, as well as the overall fairness of the tax system, of the:
NOTED
The Government will refer this recommendation to the “Australia’s Future Tax System” Review Panel for consideration. The recommendation falls within the review’s existing Terms of Reference. Paragraph 3.4 states that ‘the review will consider…(3.4) enhancing the taxation arrangements on consumption (including excise taxes), property (including housing), and other forms of taxation collected primarily by the States.’ Paragraph 4.2 of the terms of reference stipulates that ‘the review should make coherent recommendations to enhance overall economic, social and environmental wellbeing, with a particular focus on ensuring there are appropriate incentives for: (4.2) individuals to save and provide for their future, including access to affordable housing:…”.
Recommendation 5.1
The committee recommends that the proposed National Housing Supply Council develop a database of skilled labour in the construction industry across all skill sets and in all states and territories. It should be tasked with assessing the construction industry's future skilled labour needs based on projections of other industries' workforce needs and forecasts of both underlying and effective demand for housing. The Council should also record the contribution of immigration programmes to the construction workforce as well as the industry's retention rates.
NOTED
The National Housing Supply Council has noted that the assessment of labour supply is within its terms of reference and is considering the Committee’s recommendations as part of its future work program. The Council will look at the impacts of immigration and other changing demographic trends as part of its ongoing work.
The Council will provide forecasts on the adequacy of land supply and construction to meet future demand for housing and will publish an annual State of Housing Supply Report analysing supply needs up to 20 years into the future.
The Government is providing an extra 711,000 training places under the Productivity Places Program over the next five years – including in the building and construction sector – to ensure Australia’s workforce has the necessary skills to meet demand as growth strengthens.
The National Housing Supply Council will consider the availability of skilled labour in the construction industry as part of the analysis done for its annual State of Supply Report. The Council will draw from a number of sources, including labour market research already conducted by the Department of Education, Employment and Workplace Relations, the Australian Bureau of Statistics, the Construction and Property Services Industry Skills Council and various other industry groups.
In September and October 2008, and in February 2009 the Government announced the release of additional training places for job seekers as part of the Productivity Places Program. These new places will take the Government’s total commitment to the Productivity Places Program to more than $2 billion with more than 711,000 new training places created over five years.
Recommendation 5.2
The committee recommends the establishment of a working group, chaired by the Development Assessment Forum, to review the need for classes of development to require planning approval. The focus of this working group should be to demarcate those activities that should be performed by fully qualified planners and those that can be undertaken—at least initially—by less qualified 'paraplanners'.
NOTED
The Government acknowledges that effective and timely planning measures are fundamental to ensuring improvement of affordable housing supply.
One of the ways that the $512 million Housing Affordability Fund will increase the supply of affordable housing is by providing funds for reforms to planning processes, thus reducing delays in development approvals and developer ‘holding’ costs. Four of the projects short listed for funding in Round One of the Fund will deliver planning reforms, and a further four projects a mixture of infrastructure provision with reform of planning processes. Subject to business case analysis, the project will receive funding of over $46 million.
A further $30 million from the Fund is being used to roll out electronic development assessment systems and online tracking services to reduce red tape and streamline planning approval processes.
The Government is committed to working closely with all spheres of government, particularly local councils, to reform infrastructure and planning requirements, to make sure that savings are passed on to home buyers.
The Government notes that while the Development Assessment Forum (DAF) has undertaken significant work in the area of streamlining the development assessment process it does not have the regulatory power or the necessary resources to undertake the work being recommended by this Senate Select Committee. The Local Government and Planning Ministers’ Council (LGPMC) is leading the national reform process for development assessment and has carriage of these issues.
Recommendation 6.1
The committee recommends that the state and territory governments introduce enabling legislation for inclusionary zoning to require affordable housing in all new developments, including a proportion of social housing.
NOTED
A number of State and Territory Governments have already introduced zoning requirements on new developments in an effort to increase the supply of affordable housing. The South Australian Government, as part of its planning strategy for metropolitan Adelaide introduced an ‘urban boundary’ in 2002 to promote efficiency in urban management with an emphasis on focusing residential development in established suburbs where there is already significant investment in infrastructure. The ACT, through its Affordable Housing Action Plan has introduced requirements that ensure at least 15 per cent of blocks are priced in the $60,000-$120,000 price range. This is achieved by introducing a range of block sizes, rather than through ‘inclusionary zoning’.
The new National Affordable Housing Agreement supports a range of measures that improve the supply of affordable housing, including policy and reform directions that will increase the supply of “entry level” homes for low and moderate income earners.
Recommendation 6.2
The committee recommends that the state and territory governments encourage and promote the design and construction of adaptable housing which facilitates access improvements for the elderly and disabled and allow a larger house to be converted into smaller, separate units.
NOTED
The Government supports innovation and flexible and universal design concepts that enable residents to ‘age in place’ and that provide opportunities to better utilise larger dwellings as the need to maintain a ‘family home’ environment is diminished.
The Government has invested an additional $400 million over two years for the National Partnership Agreement on Social Housing and $5.64 billion on social housing through the Nation Building and Economic Stimulus Plan. These Agreements enable State and Territory Governments to access funding to build new social housing dwellings. In particular, these initiatives support projects that enhance the ability of persons who are homeless or at risk of homelessness, including Indigenous people and pensioners to move from short term crisis accommodation arrangements to secure, safe and long term housing that meets their needs. The new dwellings funded under these initiatives aim to meet universal design principles, making them suitable for older people and people with a disability.
Innovative building design that allows larger houses to be converted into smaller separate units, and re-aggregated into a larger house, at various stages of the housing lifecycle is one option for increasing accommodation supply and improving housing affordability. Such proposals need to be considered in the context of broader urban development planning.
Recommendation 7.1
The committee recommends that all state and territory governments consider stamp duty exemptions for first home buyers and for retirees who are downsizing their primary residence.
NOTED
Most States and Territories have already undertaken significant reforms in the area of stamp duty on residential conveyances.
Most States and Territories provide exemptions from, or concessions to, stamp duty for first home buyers. These measures include:
Other reforms include:
Additional assistance is provided to new homeowners through the First Home Owner Scheme (FHOS). The scheme was introduced on 1 July 2000 to compensate eligible first-home buyers for the one-off impact of the GST on house prices. It is a national scheme funded by the states and territories and administered under their own legislation. Under the scheme, a one-off grant of $7,000 is payable to first home owners that satisfy all the eligibility criteria.
In addition to the FHOS, on 14 October 2008, the Australian Government announced additional investment of around $1.5 billion in the housing market through the First Home Owners Boost that will enable first home buyers to access grants of up to $21,000. The First Home Owners Boost is part of the Government’s $10.4 billion Economic Security Strategy to strengthen the Australian economy during the global economic crisis.
The Government understands that one of the biggest barriers to becoming a first home owner is saving a deposit. To assist in this regard, the Australian Government is investing $1.2 billion to establish new, low tax, First Home Saver Accounts to help aspiring homebuyers save for their first home.
The new accounts commenced in October 2008 and provide a simple, tax effective way for Australians to save a deposit for their first home through a combination of a Government contribution and low taxes.
The application of stamp duty on housing is a matter for consideration by “Australia’s Future Tax System” Review Panel.
Recommendation 8.1
The committee recommends that the Western Australian Auditor General assess LandCorp's performance in releasing residential land in the Pilbara region over the past five years.
NOTED
The Government considers that this is primarily a matter for the Western Australian Government.
Recommendation 8.2
The committee recommends that the Western Australian government review the Western Australian Land Authority Act 1992 and the governance and goals of LandCorp, in particular the requirement under section 19 that it must 'endeavour to surpass financial targets'.
NOTED
The Government considers that this is a matter for the Western Australian Government.
Recommendation 8.3
The committee recommends that the Western Australian government increase the investment in public and community housing in the Pilbara region as a matter of priority. The merits of the Stamfords / Pilbara Association of Non Government Organisations proposal and/or the development of apartment buildings should be considered as a means of rapidly addressing unmet need for social housing in Karratha.
NOTED
This is a matter primarily for the Western Australian Government. Through the Council of Australian Governments, the Government, States and Territories have reformed Commonwealth-State financial arrangements. A key feature of the new financial framework is increased flexibility for the States and Territories to direct resources to areas of greatest need.
Western Australia is receiving additional funding from the Australian Government under the Nation Building and Economic Stimulus Plan, the Remote Indigenous Housing Partnership Agreement and the Social Housing Partnership Agreement to build new social housing dwellings in areas of need such as the Pilbara region.
Recommendation 8.4
The committee recommends that the Australian and Western Australian Governments establish a high-level emergency taskforce to consult with Pilbara communities and industry to develop a coordinated response to the housing affordability crisis in the Pilbara with a view to creating long-term sustainable communities in the region.
NOTED
The Australian Government is aware that there are specific localities throughout Australia that have difficult housing issues both in regard to affordability and supply and demand. Issues faced by the Pilbara are also being faced in other regions of Australia.
The Government acknowledges that groups such as the Pilbara Industry Community Council and the Pilbara Area Consultative Committee are working with industry, Local Government, the Western Australian Government, and the Commonwealth Government to develop strategies to manage projected population growth and associated infrastructure implications in the region.
The Pilbara Area Consultative Committee is working with the Pilbara Development Commission a State funded agency and the Pilbara Regional Council representatives of the four local government authorities, to develop an evidence-based, regional wide vision and plan that will address the urgent need for community infrastructure in the region.
The Pilbara Plan, released in late 2008 provides a strategic plan for the Pilbara Region that is responsive to community need and provides a framework and schedule of priority projects to inform the Pilbara’s further development.
Recommendation 8.5
The committee recommends that, in conjunction with the emergency taskforce, all tiers of government hold a number of all-party community meetings in the Pilbara region to give Pilbara residents the opportunity to speak directly to elected representatives regarding the response required to address the housing affordability crisis in the region.
NOTED
The Department of Infrastructure, Transport, Regional Development and Local Government is working in partnership with the Pilbara Area Consultative Committee to identify opportunities, priorities and development strategies for the region.
Recommendation 9.1
The committee recommends that the Australian Government should increase the First Home Owners Grant Scheme for those buying new dwellings and lower it for buyers of existing dwellings. Any funds saved should be directed towards measures to increase the supply of affordable housing.
NOTED
The First Home Owners Scheme provides a grant of $7,000 to eligible first home buyers to ensure that they are compensated for the one-off impact of the GST on the price of houses. The State and Territory governments are responsible for administering the Scheme in a manner consistent with the principles outlined in the Intergovernmental Agreement on the Reform of Commonwealth-State Financial Relations, signed by the heads of Government in 1999.
The Government acknowledges that in difficult economic times there can be merit in the Government investing in sectors such as the housing industry to stimulate economic activity and increase housing supply.
To this end, the Government announced on 14 October 2008 an additional investment of around $1.5 billion in the housing market through the First Home Owners Boost which commenced on 14 October 2008.
As a part of the 2009-2010 Budget the Government announced an extension to the First Home Owners Boost until 31 December 2009 with the amount to be phased down from 1 October 2009. This extension will continue to stimulate housing activity, support the construction industry and assist first home buyers to enter the housing market.
For contracts entered into on or before 30 September 2009, the First Home Owners Boost will continue to provide first home buyers with $7000 for established homes and $14,000 for new homes. In combination with the existing $7000 grant under the First Home Owners Scheme, this means first home owners will receive $14,000 for established homes and $21,000 for new homes.
The First Home Owners Boost will then be phased down and cease after 31 December 2009. Between 1 October 2009 and 31 December 2009, the value of the First Home Owners Boost will halve, to $3500 for established homes and $7000 for new homes, providing a total of $10,500 for established homes and $14,000 for new homes when combined with the First Home Owners Scheme grant.
The First Home Owners Boost initiative is part of the Government’s $10.4 billion Economic Security Strategy announced in October 2008 to strengthen the Australian economy during the global economic crisis.
This measure also builds on the Government’s $2.2 billion worth of housing initiatives in the 2008-09 Budget, including:
Recommendation 9.2
The committee recommends that Treasury examine the international experience with a securitised mortgage scheme and its application to Australia with a view to determining whether an 'Aussie Mac' style product would be beneficial in the Australian market.
NOTED
The Government has considered a range of proposals put forward for Government support of the residential mortgage backed securities (RMBS) market.
Historically, intervention by other governments in RMBS markets was often designed to facilitate the development of these markets as an alternative source of mortgage financing. By comparison, Australia’s securitisation markets developed to maturity without the need for government assistance. Notwithstanding the impacts of the global financial crisis, the Australian Government has confidence in the underlying strength of our financial system and the long-term viability of the Australian RMBS market.
International experience, such as the recent US experience with Freddie Mac and Fannie Mae, suggests there is reason to be cautious about any long-term government intervention in the RMBS market. Such an intervention may:
Nonetheless, the Government recognises that the current period of market dislocation has impacted disproportionately on the RMBS market in Australia and smaller lenders that are particularly reliant on the RMBS market as a source of funding. The Government announced on 26 September and 12 October 2008 that it will invest up to $8 billion in Australian residential mortgage-backed securities, of which at least $4 billion must be issued by non-authorised deposit taking institutions. This initiative will support competition in mortgage lending in Australia by enabling a diverse range of lenders to gain access to funding through RMBS issuance during the present period of market dislocation.
The Government’s investment is subject to strict eligibility criteria to manage the associated risks and ensure lenders’ adherence to appropriate lending standards. It is also subject to caps on the amount of RMBS that can be purchased from any individual issuer to ensure that a range of lenders benefit from the initiative and to avoid crowding out private sector investment.
The approach uses existing arrangements between the Government and the Australian Office of Financial Management (AOFM) to make the investment, which means that it is being implemented more quickly and at lower cost than the establishment of an “Aussie Mac’ style institution. In addition, this approach allows the Government to provide temporary support to the RMBS market while it remains dislocated by the global financial crisis, without creating long-term distortions that could prevent the efficient operation of the market as market conditions normalise.
Recommendation 9.3
The committee recommends that the Australian Government increase support for home owners to undertake counselling to improve their financial literacy before they are allowed to access their superannuation to make mortgage repayments.
AGREE
The Government also offers a number of services under its Financial Management Program, including Commonwealth Financial Counselling, that help people to overcome financial difficulty and improve financial literacy skills.
Through Commonwealth Financial Counselling, the Government funds non-profit community and local government organisations to provide free financial counselling to people who are experiencing personal financial difficulties, including due to mortgage stress. In the 2008-09 Budget, Commonwealth Financial Counselling funding increased by $2.5 million a year, bringing the annual funding to $5.1 million (for 2008-09). Nationally, there are 61 organisations currently providing Commonwealth Financial Counselling services.
The Australian Securities and Investments Commission (ASIC) is developing a National Financial Literacy Strategy designed to help all Australians improve their financial literacy and develop the practices needed to achieve better financial outcomes. Under consideration for inclusion in the strategy is a range of approaches to providing financial planning and advice that will assist Australians, including prospective and existing home owners, to better manage their money.
Recommendation 10.1
The committee recommends that the Australian Government commission an independent evaluation of the Commonwealth Rent Assistance programme, to ascertain its effectiveness and cost effectiveness in improving housing affordability for low to medium income households and to make recommendations regarding future directions for the programme, including eligibility criteria.
The review should be undertaken in the context of a more comprehensive review of all government initiatives, both supply side and demand side, aimed at improving housing affordability.
NOTED
The Government’s Pension Review has investigated measures to strengthen the financial security of seniors, carers, and people with disability by considering the:
The 2009–10 Budget contains substantial reform of the pension system, starting from 20 September 2009. Informed by the findings of the Review, the Government has developed the Secure and Sustainable Pensions package which will improve adequacy, security, and flexibility for people receiving Age Pension, DSP and Carer Payment and related payments (including related Department of Veterans’ Affairs payments). In particular, the reforms will deliver improved relativities between rates paid to single and couple pensioners and an appropriate basis for indexation of pensions to reflect the cost of living faced by pensioners. The package will also simplify payments to pensioners, and provide more flexibility for them so that they have a secure basis for effective planning and budgeting.
Recommendation 10.2
The committee recommends that the Australian, state and territory governments increase the quantum of support available under Commonwealth Rental Assistance for older Australians living in private rental accommodation.
NOTED
As noted in response to Recommendation 10.1 above, a Pension Review Taskforce has been established as part of the Australia’s Future Tax System Review. The taskforce has investigated measures to strengthen the financial security of seniors as part of the broader Tax System Review and analysis of issues relating to social support payments (including CRA) has been considered in this context.
Through the National Rental Affordability Scheme the Commonwealth Government provides incentives for private institutional investors to construct 50,000 affordable rental properties for low and moderate income earners by 2012. Older Australians on low to moderate incomes who are in need of rental housing are one of the groups expected to benefit from this Scheme.
Recommendation 10.3
In order to meet the immediate need for social housing of highly disadvantaged households, the committee recommends that significant new funding be invested, by both the Australian Government and state and territory Governments, under the new National Affordable Housing Agreement, with the aim of increasing the pool of social housing to at least 6 per cent of housing stock.
NOTED
The National Affordable Housing Agreement provides the basis for significant reform of social housing to improve the social and economic opportunities of tenants and provide for the long term sustainability of the social housing sector.
The Council of Australian Governments at its November 2008 meeting agreed to provide an additional $400 million of Commonwealth funding over two years to construct new social housing dwellings. In addition the Commonwealth will provide an additional $1.94 billion over 10 years under the National Partnership Agreement on Remote Indigenous Housing to improve the living standards of Indigenous Australians in remote areas by reducing overcrowding, homelessness, poor housing conditions and severe housing shortages.
The Commonwealth Government has also invested $5.64 billion in social housing together with the assistance of the not-for-profit housing sector will construct up to 19,200 new public and community housing dwellings and repair over 47,000 existing properties through the Government’s $42 billion Nation Building and Economic Stimulus Plan.
The new Commonwealth-State financial arrangements provide more flexibility to the States and Territories to direct funding to areas of need.
Recommendation 10.4
The committee recognises the strengths that the Community Housing Sector brings to the delivery of social housing in Australia. In order to ensure that these strengths are fully employed, the committee recommends that the Australian, state and territory governments work more closely with Community Housing Associations to support them in meeting their social housing commitments and to explore options for attracting more investment, including private sector investment, into not-for-profit models of housing provision.
AGREE
The Government agrees that the community housing sector plays a critical role in providing social housing to individuals and families whose needs cannot be met in the private rental market. The community housing sector has grown over many years and now represents 9 per cent of social housing stock. The sector is diversified and reflects its origins and community settings dealing with local circumstances or highly specific needs.
The Government, together with the States and Territories is looking at ways to further support the sector through the National Affordable Housing Agreement, the National Partnership Agreement on Social Housing and the National Rental Affordability Scheme. In the National Affordable Housing Agreement the States and Territories and the Commonwealth committed to a range of ongoing reforms in the housing sector. One of the agreed reforms is to enhance the capacity and growth of the not-for-profit housing sector, supported by a nationally consistent provider and regulatory framework.
A national approach will enable community organisations to work across state and territory borders and to receive consistent policy and funding treatment. It will also encourage the entry of new housing providers to improve competition and greater choice and tenure mobility for tenants.
Recommendation 10.5
With a view to building more sustainable social housing in the longer term the committee recommends that the pool of social housing stock be increased to at least 10 per cent of housing stock by 2020, facilitating the entry into social housing of a more diversified mix of low to medium income earners.
NOTED
As noted above the Nation Building and Economic Stimulus Plan and National Partnership Agreement on Social Housing provide an additional $6 billion to the States and Territories for the construction of new social housing dwellings and redevelopment of existing public housing estates. In addition the additional funding provided through the National Partnership Agreement on Remote Indigenous Housing will improve the supply of housing in remote Indigenous communities.
Measures such as the National Rental Affordability Scheme and the Housing Affordability Fund, also directly increase the supply of affordable rental housing or lower the cost of new housing. This reduces the demand for social housing by increasing the housing options for lower income households.
Increasing Australia’s social housing stock to 10 per cent of all housing stock requires careful consideration. To purchase or construct an additional 350,000 houses to add to the social housing pool would cost in the order of $100 billion, and would have significant consequences for the construction industry, the financial sector and the shape of Australia’s home ownership and rental housing markets.
Recommendation 10.6
As an additional measure to improve the sustainability of social housing, the committee recommends that the formula used to calculate the level of rent paid in social housing be reviewed, with a view to enhancing the sustainability of social housing stock (and, if possible, providing for growth), while maintaining affordability.
The review should include an examination of the interaction between social housing and Commonwealth Rent Assistance payments, and how these two programmes might be best utilised to maximise socially and economically sustainable outcomes in terms of access to affordable housing.
NOTED
The new National Affordable Housing Agreement incorporates assistance provided for social housing and homelessness and Commonwealth Rent Assistance.
Under the new Commonwealth-State financial arrangements, States and Territories have increased flexibility enabling them to direct funds to areas of greatest need.
Rental subsidies or rent setting policies for public housing are determined and administered by the States and Territories. Research has examined social housing rental policy in Australia and overseas and identifies reform options for Australia’s social housing finance system, including that financial viability of state managed social housing might also be improved through measures not involving rental policy – such as improving efficiencies in tenancy, property and asset management and housing acquisition. 3
Recommendation 10.7
The committee recommends that the Australian Government consider whether the level of increased support to the Supported Accommodation Assistance Program being offered under the 'A Place to Call Home' initiative is sufficient to address the level of unmet need, and increase support to emergency assistance programmes provided by charitable organisations to assist the growing numbers experiencing financial crisis.
AGREE
Under the A Place To Call Home initiative, the Australian Government provided $150 million, matched by State and Territory Governments, to build 600 homes across the country over the next five years. These houses provide long-term, supported accommodation for people who are experiencing homelessness. This initiative represents a significant down-payment on the Government’s goal of reducing homelessness over the next decade. In addition, the National Partnership Agreements on Homelessness and Social Housing as well as the Social Housing Initiative under the Nation Building and Economic Stimulus Plan will deliver a total of $7.14 billion worth of new assistance for homeless people over five years to 2013. This will enable new support services to be created for people who are homeless, as well as new housing to be built.
The Government’s long-term response to homelessness is outlined in the White Paper on homelessness which sets out strategies and goals to reduce homelessness by 2020. The White Paper focuses on a national strategic approach across three broad strategies: to Intervene early to prevent homelessness; improve and expand services that aim to end homelessness; and ensure that people who become homeless get support from the crisis system that can stabilise their situation and ensure homelessness does not recur.
There are not any overnight solutions but initiatives already underway represent a significant start toward tackling the critical issue of homelessness. The Government is committed to delivering long-term solutions to the problems of homelessness and social disadvantage.
Recommendation 10.8
The committee recommends that the HOME Advice scheme be expanded nationally to provide early intervention services for families at risk of homelessness. The scheme should be evaluated after five years, including a comprehensive economic evaluation, to ensure that the expanded programme continues to provide economic and social benefits to the community.
NOTED
The HOME Advice Program represents an important national level strategic partnership between an Australian Government department (Families, Housing, Community Services and Indigenous Affairs), an Australian Government agency (Centrelink) and non-government service providers. Currently, there are eight HOME Advice Program sites, one in each State and Territory.
An evaluation of the HOME Advice Program was undertaken in 2007. The Evaluation Report is published on the Department of Families, Community Services and Indigenous Affairs Internet site and can be viewed at:
http://www.facsia.gov.au/home_report/
The Government’s response to homelessness will be implemented through three strategies, one of which focuses on services intervening early to prevent homelessness. Prevention should focus on key transition points and life events. Under this strategy the providers will assist families at risk of homelessness to remain housed.
The States and Territories and the community as a whole will benefit from investing in prevention services as this will mean fewer people will need to access crisis accommodation. Savings could also be made in the long term in health, mental health and justice services.
COAG announced $800 million under the National Partnership on Homelessness to implement the strategies in the White Paper. Under this agreement the states and territories will have flexibility to spend funding on initiatives to reduce homelessness. The HOME Advice program provides a good model for the states and territories to use for prevention.
Recommendation 10.9
The committee recommends that consideration is given to expanding referral pathways to the HOME Advice scheme to include financial institutions, so as to better capture low income mortgagees who may be at risk of becoming homeless.
AGREE
The White Paper identifies that people may be at risk of homelessness through financial instability and the burden of mortgages and other debts.
The White Paper emphasises the need for mainstream services to take responsibility for homelessness and to provide support and referrals to specialist assistance when needed.
Under the National Partnership on Homelessness, states and territories are encouraged to strengthen the referral pathways for people to access support through adopting a ‘no wrong door’ policy for mainstream and specialist services.
HOME Advice is currently available to renters, in private or public housing, and to home buyers. Clients are not income tested – services are available to any family at risk of losing their housing. Clients may be referred by Centrelink, real estate agencies, housing services, other community services or may directly approach HOME Advice services for assistance. Assistance is provided for as long as is required and there is no charge to the client.
HOME Advice is tenure-neutral – it is available to both renters and home owners. HOME Advice services accept referrals from a variety of institutions, such as real estate agents and financial institutions, and self referrals. The only eligibility criteria is that the families’ housing is at risk.
Recommendation 10.10
The committee recommends that the Australian Government encourage applications under the National Rental Affordability Scheme that would target the development of new affordable rental properties in areas of greatest need and/or for communities needing affordable housing for essential services workers.
AGREE
This is already being done. Applications must address five assessment criteria in order to qualify for NRAS incentives under the Scheme. Applications must demonstrate; the need for the proposal; how the proposal meets priority areas of interest; how the proposal will deliver accessibility and sustainability outcomes; that the Consortium or Organisation has demonstrated capacity and experience; and that the proposal is financially viable. The Government may include additional eligibility requirements and assessment criteria for the National Rental Affordability Scheme over time in order to give consideration to special needs (including particular locations, types of dwellings and characteristics of tenants). These may apply when the Government called for expressions of interest in later funding rounds of the National Rental Affordability Scheme. State, Territory and Local Governments are also able to offer additional incentives to attract investors and target specific markets.
Recommendation 10.11
The committee recommends that the Australian Government considers how community housing providers and housing cooperatives might be assisted to access funding under the National Rental Affordability Scheme.
AGREE
The Government contracted seven Partnership Facilitators to support the implementation of the National Rental Affordability Scheme (NRAS) by bringing together stakeholders that were interested in participating in NRAS. The Partnership Facilitators were engaged for Round One of NRAS and included two national Facilitators and five state-based Facilitators, with the South Australian based Facilitator covering the Northern Territory, the New South Wales based Facilitator covering the Australian Capital Territory and the Victorian based Facilitator covering Tasmania.
The Australian Government is providing approximately $1.7million over two years to fund products, activities, resources and tools through the National Rental Affordability Scheme Enabling and Capacity Building Strategy. The NRAS Enabling and Capacity Building Strategy is designed to provide affordable housing providers with a clear understanding of the capability requirements to successfully participate in NRAS. The Strategy will assist organisations to realistically assess their capacity to become NRAS participants in the short to medium term. Indigenous, aged care, disability and smaller scale community housing providers, small scale developers and investors may also benefit from the Strategy. The Strategy includes:
On 12 November 2008, the Treasurer announced a transitional safety net to cover charities looking to participate in the National Rental Affordability Scheme. This ensures that the charitable sector can participate fully in the Scheme by amending both charity and tax laws. The amendment means that the proposed participation of existing charities in the Establishment Phase of the National Rental Affordability Scheme will not affect their charitable status.
Recommendation 10.12
The committee recommends that the Department of Families, Housing, Community Services and Indigenous Affairs conduct a mid-implementation review of the National Rental Affordability Scheme in 2010 to assess the extent to which it is meeting its objectives.
AGREE
There is a commitment to review the Scheme in its early years to identify any scope for simplifying the Scheme, reducing the administrative burden on providers, or addressing any evolving issues to ensure that it continues to meets its objectives in the most efficient way.
As a result of the review adjustments or revised settings may be necessary after the first few years of the Scheme’s operation in the Expansion Phase (2010-2012). This is an important consideration because of the Government’s announcement that a further 50,000 incentives may be offered over the following five years if demand remains high.
Recommendation 10.13
The committee recommends that the Australian Government examine the capacity of the community housing sector to operate as a provider of choice of affordable adaptable housing for people living with a disability, and investigate how it can support this sector to provide more units of appropriate housing.
AGREE
On 17 July 2008 Australia ratified the United Nations Convention on the Rights of Persons with Disabilities (the Convention). It came into force for Australia on 16 August 2008.
The promotion and development of universally design products is highlighted as one of the General Obligations in Article 4 of the UN Convention on the Rights of Persons with Disabilities.
The Convention aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms for all persons with disability, and to promote respect for their inherent dignity. All levels of Australian Government now have an obligation to implement the Articles of the Convention.
The Government supports the Community Housing Sector, through initiatives such as the Victorian Government’s Build for Life initiative, to become a provider of choice for affordable, adaptable housing.
Under the National Affordable Housing Agreement the States and Territories and the Commonwealth have committed to a range of ongoing reforms in the housing sector. One of the agreed reforms is to enhance the capacity and growth of the not-for-profit housing sector, supported by a nationally consistent provider and regulatory framework.
Recommendation 10.14
The committee recommends that the Australian, state and territory governments investigate options to encourage community housing associations to develop more housing to meet the future needs of an increasing number of older Australians for affordable and adaptable housing that supports 'ageing in place.'
NOTED
Refer to 10.13 above and to the initiatives which are included as part of the National Affordable Housing Agreement and associated partnership agreements.
The Government is aware that some community housing providers are already investing in housing projects that will support ageing in place and supports such initiatives. As an example, the Benevolent Society’s “Apartments for Life” project is an innovative housing option that will support older persons to remain in their chosen accommodation for the rest of their lives through health, community and other services being provided on site as needed. In addition, the apartments will include public space and other community facilities that support community engagement.
Recommendation 10.15
The committee recommends that the Department of Families, Housing, Community Services and Indigenous Affairs conduct an independent evaluation of alternative tenancy and ownership models, such as housing cooperatives, currently operating in or proposed for Australia or overseas, to assess their efficacy in providing secure and affordable housing in the Australian context. The evaluation should include a review of any legislative or administrative barriers to the introduction or expansion of such schemes in Australia.
If the results of the evaluation indicate that there may be a role for alternative tenancy and ownership models in the Australian context, options should be developed for supporting and promoting uptake of such models.
NOTED
The Government supports tenancy models that operate to improve housing affordability and is aware that different models operate both within Australia and overseas.
Through the National Affordable Housing Agreement, all jurisdictions have committed to ongoing reforms in the housing sector including the enhancement and capacity building of the not-for-profit housing sector, supported by a nationally consistent provider and regulatory framework.
Development of reform in this area will require close examination of a variety of tenancy and home ownership models including regulatory and administrative barriers.
The Commonwealth and State and Territory Governments jointly fund the Australian Housing and Urban Research Institute (AHURI) to deliver priority research outcomes through its annual research agenda.
AHURI’s examination of affordable housing models that draw on local and international experiences continue to provide a sound evidence base to inform the Government on affordable housing and social inclusion initiatives, especially for those on low incomes.
Recommendation 11.1
The committee recommends that the forward plans of the Australian, state and territory governments incorporate policies for mid-size regional cities to ensure they are better able to form sustainable communities, to cope with the transport impacts of peak oil and climate change, and to invest in infrastructure.
NOTED
The Government has established a Major Cities Unit which will provide advice to the Government on issues of relevance to urban development, particularly on productivity, sustainability and liveability issues, including urban congestion. The unit will also provide an integrated and coordinated approach to urban policy development across the Commonwealth Government.
The Government will also bring this recommendation to the attention of the Local Government and Planning Ministers’ Council (LGPMC), the Australian Transport Council (ATC) and the Regional Development Council (RDC) for their information and action as appropriate.
1 Australian Institute of Health and Welfare (AIHW) 2008. Community housing 2006-07: Commonwealth State Housing Agreement national data reports. Housing assistance data development series. Cat. No. HOU 172 Canberra: AIHW
2 Australian Census Analytic Program; Counting the Homeless 2006, ABS Cat No. 2050.0, 2008
3 Australian Housing and Urban Research Institute (AHURI) 2006, Project 50226 Rental Systems in Australia and Overseas, McNelis and Burke
The document read as follows—
Senate Committee on Legal and Constitutional Affairs
Inquiry into the Personal Property Securities Bill 2009
Government Response
Recommendation 1
4.34 The committee recommends that the Bill be passed subject to a commitment from the government to:
Government response:
Accepted: The Government will consider the concerns raised by stakeholders in submissions to the inquiry and otherwise until 30 September 2009. Responses to those concerns will be made available on the Attorney-General’s Department website at www.ag.gov.au/pps. Any changes to the Bill identified in that process will be included in a consequential amendments Bill which will be introduced into Parliament to facilitate a cognate debate with the main Bill in the Senate, should the Senate decide to consider the Bills cognately.
Recommendation 2
5.64 That subject to the foregoing recommendation, the Bill be supported.
Government response:
Noted.
Liberal Senators’ Minority Report
Recommendation 1
1.16 Liberal Senators recommend that the government and the department conduct further consultations on the Bill until the end of September 2009, and that at the conclusion of that process, the government introduce a consequential amendments bill.
Government response:
Accepted. See response to majority report recommendation 1.
Recommendation 2
1.17 Liberal Senators recommend that the government and the department release the revised draft regulations for public consultation as soon as possible.
Government response:
Accepted. A revised discussion paper on the PPS Regulations will be released as soon as possible. Draft regulations will be released progressively as they become available.
Recommendation 3
1.18 Liberal Senators recommend that on introduction of the consequential amendments Bill, the Senate refer that Bill, together with the proposed regulations, to this committee for inquiry and report.
Government response:
Not accepted. An inquiry into the consequential amendments Bill and the proposed regulations would delay passage of the Bill. Early passage of the Bill will provide business stakeholders with certainty about the final form of the new personal property securities regime. In order to provide certainty to business, the Council of Australian Governments has agreed that the PPS legislation should be passed in 2009.
Recommendation 4
1.19 Liberal Senators recommend that the Bill not be passed until the committee’s report on the consequential amendments Bill and the regulations has been presented, and that the Senate debate the Bill and the consequential amendments bill together.
Government response:
Not accepted. The Bill has already been the subject of extensive consultation and two Senate Committee inquiries. Further delay in passing the Bill will deprive business stakeholders of certainty about the final form of the new personal property securities regime. In order to provide certainty to business, the Council of Australian Governments has agreed that the PPS legislation should be passed in 2009.
Recommendation 5
1.20 Liberal Senators recommend that the government develop and implement a comprehensive education campaign for small to medium business and others prior to the start-up date for the new personal property securities system.
Government response:
Accepted: The Government will develop and implement an education campaign prior to the commencement of the new personal property securities system.
Ministerial statement
Government documents
Reports of the Auditor-General
Tabling of guidelines pursuant to an Act
Returns to order
Statements of compliance with Senate orders
Indexed lists of files (continuing order of the Senate of 30 May 1996, as amended on 3 December 1998):
Lists of contracts (continuing order of the Senate of 20 June 2001, as amended on 27 September 2001 and 18 June, 26 June and 4 December 2003):
Lists of departmental and agency appointments/vacancies (continuing order of the Senate of 24 June 2008, as amended):
Lists of departmental and agency grants (continuing order of the Senate of 24 June 2008):
Ordered that the committee reports be printed.
by leave—At the request of the Chair of the Economics References Committee, I move:
That:
Question agreed to.
by leave—I move:
That the Senate take note of the reports.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
by leave—I move:
That the Senate take note of the reports.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
by leave—I move:
That the Senate take note of the reports.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
by leave—I move:
That the Senate take note of the document.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
by leave—I move:
That the Senate take note of the document.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
by leave—I move:
That the Senate take note of the reports.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
by leave—I move:
That the Senate take note of the documents.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
In accordance with the provisions of the Auditor-General Act 1997, I present the following report of the Auditor-General: Report No. 7 of 2009-10—Performance audit: Administration of grants by the National Health and Medical Research Council.
On 16 September, during debate on the Automotive Transformation Scheme Bill 2009, Senator Carr undertook to provide Senator Abetz with a list of ‘coathanger’ legislation enacted under the Howard government between 1996 and 2007 and I now table that document.
I present the 139th report of the Committee of Privileges entitled Persons referred to in the Senate—Mr Alan Cummine.
Ordered that the report be printed.
by leave—I move:
That the report be adopted.
This report is the 56th in a series of reports recommending that a right of reply be afforded to persons who claim to have been adversely affected by being referred to, either by name or in such a way as to be readily identified, in the Senate. On 8 October 2009, the President received a submission from Mr Alan Cummine relating to comments made by Senator Milne in the Senate on 10 September 2009 during debate on the Tax Laws Amendment (2009 Measures No.4) Bill 2009. The President referred the submission from Mr Cummine to the committee on 22 October 2009. The committee deliberated upon the matter and recommends that Mr Cummine’s complaint is a proper one and that this is an appropriate case in which he be granted a right of reply consequent upon Senator Milne’s adverse remarks and that the proposed response be incorporated in Hansard.
The committee reminds the Senate that in matters of this nature it does not judge the truth or otherwise of statements made by honourable senators or by the persons referred to. Rather, it ensures that these persons’ submissions, and ultimately the responses it recommends, accord with the criteria set out in Privilege Resolution 5. That has been the conclusion in relation to Mr Cummine’s submission. I commend the motion to the Senate.
Question agreed to.
The response read as follows—
Appendix One
Response by Mr Alan Cummine
Pursuant to Resolution 5(7)(b) of the Senate of 25 February 1988
Senator Christine Milne referred to me and other colleagues by name during a debate on a Tax Laws Amendment Bill. In doing so, Senator Milne repeated the views that Dr Judith Ajani had expressed in her submission to the Inquiry into Agribusiness Managed Investment Schemes conducted by the Parliamentary Joint Committee on Corporations and Financial Services.
For your convenience, I quote here the relevant extract from page 26 of the Senate Hansard, 10 September 2009.
‘I think it is time we had a very good look at who the government is listening to. We have a greenhouse mafia in Australia where people go in a revolving door from the coal industry into ministerial offices, then become lobbyists and then go into the department for a while—and round and round they go, giving one another the same advice. We have exactly the same thing here: from government to forest lobbying. Alan Cummine, for example, used to be an adviser to environment minister Ros Kelly. He went across to the forest lobbies through Australian Forest Growers, Treefarm Investment Managers Australia, and Australian Plantation Products and Paper Industry Council. Allan Hansard went from ABARE and DAFF across to the National Association of Forest Industries. Mile Prosser went from state forests of New South Wales over to NAFI, Plantations Australia and A3P. Richard Stanton from DAFF and state forests in New South Wales went over to NAFI and then A3P, the Australian Plantation Products and Paper Industry Council. Phil Townsend went from DAFF across to NAFI, to Tree Plantations Australia and then to ANU—round and round the revolving door goes. And what a surprise that they all give one another the same advice! Not only do they go round and round but they spin off occasionally into the carbon fossil sector, where you have Robin Bain, who used to work for NAFI, for Timber Communities [Australia], which used to be called the Forest Protection Society or whatever. She has gone across to be the chief lobbyist for the cement industry. It is a beautiful thing—round and round they go, giving one another the advice they want to hear.’
In the context created by the first sentence about the ‘greenhouse mafia’ going through a revolving door between industry, ministerial offices and government departments, a clear implication and insinuation exists in the rest of Senator Milne’s statement that there is something inappropriate and even sinister about certain people using their knowledge and expertise to the benefit of different government and non-government organisations.
By naming me and selected parts of my recent employment (and that of my colleagues) in this context, Senator Milne is insinuating that, through the career choices I have made, my conduct has been somehow inappropriate and perhaps unprofessional, and that I may have misused my position and networks in fulfilling my duties to provide advice and representation.
I reject this insinuation and the inference that is intended to be drawn from it—both as a general principle and with respect to me personally.
The movement of people into, out of and among government, industry, academia, non-government organisations, private consultancies and diverse government appointments is a widespread and utterly unremarkable phenomenon. To single out several professionals now or recently in the forest industry as somehow having acted inappropriately by doing so is unreasonable and unwarranted.
To illustrate this phenomenon from a different perspective, I can personally name at least thirteen former environmental activists and campaigners—with whom I have had professional dealings and personal friendships going back to the mid-1970s—who have had career paths as described above, including moving into senior positions in key state and federal government agencies and then back out into environmental lobbying and consulting. I can name others who left long careers as public servants, ministerial advisers and industry leaders to take up senior positions with environmental organisations.
My own professional career is somewhat more diverse than was described by Senator Milne.
Over the past 35 years, I have also been a member, sometimes quite active, of my relevant professional associations and a number of environment organisations—including Australian Conservation Foundation (still current), Tasmanian Wilderness Society and Friends of the Earth.
Throughout my career, as others will willingly attest, I have behaved with professionalism and integrity in the service of my employing organisations. I have not ever concealed the nature of my employment or my role in any organisation, and I have sought to work with government and non-government organisations that have environmental and natural resource benefits at their core. Contrary to what Senator Milne appears to be insinuating, that includes organisations representing forestry.
The manner and context in which Senator Milne described my career movements is unjustified, unfair and offensive, and I ask that you take appropriate action to correct the public record.
by leave—I present the report of the Australian parliamentary delegation to Vietnam and to the 17th annual meeting of the Asia Pacific Parliamentary Forum held in Laos, which took place from 5 to 15 January 2009. I seek leave to move a motion to take note of the document.
Leave granted.
I move:
That the Senate take note of the document.
I am pleased to present the report of the delegation’s visit to Vietnam and its participation in the annual meeting of the Asia Pacific Parliamentary Forum in Vientiane. The Speaker led the delegation, which also included the member for Cowan and my Senate colleagues Senators Collins and Moore. I pay tribute to the delegation secretary, Ms Catherine Cornish, for sharing her expertise in the APPF process, her attention to detail and her masterful ability to ensure that the visit went smoothly with characteristic Australian humour. Likewise we were fortunate to have the Clerk of the House, Mr Ian Harris AO, join us. His enormous wealth of knowledge and appreciation of procedure held us in good stead.
As delegations have previously visited Vietnam on a number of occasions, the visit provided an opportunity to renew parliamentary contacts with the National Assembly, to gain an understanding of the impact of economic reform and advances that have taken place in the last 20 years, to observe the outcomes of Australia’s development cooperation program at first hand and also to consider prospects for further trade and investment by Australia. Vietnam is a kaleidoscope of geographic features, from the limestone islands of Ha Long Bay and the plains of the Mekong River to the modern metropolis of Ho Chi Minh City and the Old Quarter of Hanoi. In a very short time we could only cover some of this, but we really focussed on three areas: Ho Chi Minh City, where our meetings and visits were designed to give us a perspective on the impact of economic reform, trade and development cooperation; Hanoi, where the National Assembly was the focus; and Ha Long City and Ha Long Bay, where our attention was on environmental issues and the impact of economic reform.
The discussions that we had were interesting and constructive. We were pleased to meet a number of people, in particular the Vietnamese Prime Minister and Chairman Trong, President of the National Assembly. Of particular note were the visits to organisations that were the product of Australian investment and support. One of the visits we made that was a highlight to me was to the RMIT International University campus in Ho Chi Minh City, which reached 5,000 student enrolments last year. It is a most impressive campus that provides sought after tertiary courses for the locals whilst offering exchange opportunities and professional development for Australian students and academic staff.
We visited Phu My Bridge, a Bilfinger Berger and Baulderstone Hornibrook project, which was close to completion. It is, I have to say, an engineering masterpiece, and it is one that is managed by Australians. Equally impressive, although vastly different in nature, was the Protec helmet factory, which is largely supported by AusAID. Programs like this seek to make motorcyclists safer by producing low-cost helmets. The challenge will be to mandate the same protection to all the pillion passengers, who are not yet obliged to wear helmets. The number of people and size of goods carried on the back of bikes was a sight to behold and, may I also say, defied gravity.
Two other visits we made in Ho Chi Minh City were very memorable. The first was to the centre of education and vocational training for homeless and orphan children and the second was to the school for the blind in Ho Chi Minh City. In each place we saw the impact of support from Australia, whether that was a relatively small donation under the Direct Aid Program to the homeless and orphan children, or funding support that Loreto Vietnam-Australia provided for infrastructure to the school for the blind. I think what mattered to the people and children who received that support from Australians—and this was certainly indicated to us when we spoke to many there—was the thought that went into the determination and the direction of this support and aid, the careful assessment of needs and priorities that had been undertaken and perhaps, more importantly, the goodwill that it demonstrated.
Following the visit to Vietnam we travelled to Vientiane for the annual meeting of the APPF. These meetings have taken place in cities around the region each January for the last 16 years. Our parliament participates in the APPF for two major reasons: the countries that belong to the APPF are important to our regional, strategic and economic interests; and because we support the objectives of APPF meetings. The plenary sessions at the meeting were broken into three broad subject areas: economic and trade matters; political and security issues; and interparliamentary cooperation in the region. Our delegation proposed and spoke to a number of resolutions. The topic I chose to address was cooperation on natural disaster management—an issue of particular relevance in our region and one that we actually saw the effect of more recently with the tsunami and the effect it had on Samoa. Part of my speech was directed towards encouraging cooperation to improve preparedness for natural disasters, to provide relief and to assist in recovery. We followed up our speeches with negotiations on the final resolutions on the various topics. Outside the plenary we participated in bilateral meetings with other delegations, including those from China, the Russian Federation and Mexico.
I express our thanks to the Australian embassy representatives in Vietnam: the Ambassador, His Excellency Mr Allaster Cox, the Consul-General in Ho Chi Minh City, Mr Graeme Swift, and Mr Michael Hoy, who accompanied us throughout our time in Vietnam. Michael contributed greatly to the preparation and the implementation of the delegation’s program. He was unfailingly courteous and most skilful in keeping us informed to the max and organised.
In Laos we were assisted by Her Excellency Dr Michele Forster and her colleagues—in particular, Ms Emily Russell. The post in Vientiane is not a big one and so the preparations that were made by them to assist our work with the APPF secretariat, local officials and expatriates were very much appreciated. The Department of Foreign Affairs and Trade in Canberra also assisted the delegation by briefing us and providing comprehensive briefing materials and draft resolutions. The Parliamentary Library also provided briefing material and a draft resolution, and the Parliamentary Relations Office gave administrative support.
Each member of our delegation participated fully in the various meetings in Vietnam and at the APPF meeting in Vientiane. Throughout the visits we sought to represent the parliament effectively through the resolutions we advocated, our speeches and our meetings. For my own part I found the visits rewarding in the opportunities they presented to meet local people, including members of parliament, to hear their perspectives on the major issues they confront and to see firsthand progress that is taking place both in Vietnam and Laos. The cohesion and goodwill of the delegation was also rewarding. For that I thank the Speaker, as leader, the member for Cowan, Mr Simpkins, and Senators Moore and Collins.
Question agreed to.
Messages received from the House of Representatives agreeing to the amendments made by the Senate to the bills.
Bill received from the House of Representatives.
I move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
I table a revised explanatory memorandum relating to the bill and move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
The Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009 will amend the Corporations Act 2001 to provide for the national regulation of margin lending and trustee corporations, as agreed by COAG.
Consumers will also benefit from long-awaited improvements to the regulatory regime governing the issue of debentures.
The first of the three elements of the Financial Services Modernisation Bill is the introduction of national regulation of margin loans.
While the level of margin lending has dropped over the last 12 months due to the global recession, over the last decade, the use of margin lending has increased dramatically. In June 1999, less than $5 billion had been borrowed through margin loans. But by December 2007 that figure had sky-rocketed to over $37 billion. That’s more than a 700 per cent increase.
Over the past 12 months, in the fall-out from several high-profile financial collapses, many investors lost hundreds of thousands of dollars due to margin loans. And in some cases, they even lost their family homes.
While properly-geared margin lending, backed by full disclosure, does have a place in our financial services landscape, we cannot tolerate ordinary Australians being misled into grossly inappropriate margin loans that can cost a family everything they own.
Margin lending has not been subject to the credit regime operated by the States. In fact, until now, margin loans have not been subject to any specific regulatory regime at all.
For the first time, margin loans will become subject to specific legislation designed to protect consumers from harmful lending practices.
As margin loans are generally used to finance investments in listed and unlisted securities, the decision has been made to regulate them as part of the financial services regime in Chapter 7 of the Corporations Act.
This means that margin loan borrowers will benefit from the general investor protection regime contained in that legislation.
This includes a number of important measures. For example, lenders and advisers will have to be licensed and regulated by ASIC.
Consumers will have access to independent, free and fast dispute resolution services.
And importantly, advisers will be required to only provide advice that is appropriate to the client’s needs and circumstances.
Consumer protection in relation to margin loans will be further improved through two specific measures.
The first is a responsible lending requirement, which is designed to prevent lenders from giving unsuitable loans to consumers.
Before giving a margin loan, lenders will be required to consider whether the borrower could suffer substantial hardship as a result of taking out the loan. If that is the case, the law says that the loan must not be provided.
The regulations which will accompany the legislation will provide further detail of what lenders will need to consider. Among other things, a specific requirement will be included for lenders to consider whether consumers will be at risk of losing their homes as a consequence of taking out a margin loan.
The regulations will also require financial advisers to consider the same matters, including the possible loss of the borrower’s home, when providing advice on margin loans to consumers.
The second specific measure clarifies which party is responsible for notifying borrowers when a margin call occurs where both a lender and a financial adviser is involved. In the past, delays in margin call notifications due to disagreements between lenders and advisers have contributed to losses suffered by consumers.
The Government has consulted extensively during the process of developing the policy underlying the legislation.
A margin loan consultation group was established consisting of industry associations, major lenders and other stakeholders such as lawyers and external dispute resolution schemes.
Regular meetings were held with this group while the policy was being developed. The group also had the opportunity to review draft legislation before it was exposed for public comment.
Some important changes were made in response to views expressed by stakeholders during consultation.
In particular, transitional periods have been extended to give industry stakeholders, especially lenders, more time to prepare for the introduction of the new regime.
The new margin lending regime will apply to margin lenders and advisers 12 months after the legislation comes into force. This transitional period will give industry sufficient time to prepare for the introduction of the new regime, in particular the new responsible lending requirements.
The Government understands that appropriate preparations are needed for the implementation of the new regime, and has listened to industry views on how long the transitional period should be.
I am also confident that ASIC will be looking at ways to minimise the regulatory burden to business during and after the transitional period.
Ways to achieve this could include ASIC releasing guidance on the detailed implementation of the provisions in the law, and providing appropriate relief from unintended consequences of the law.
I would add that the new legislation, as well as the existing Corporations Act, gives ASIC a wide range of powers in this respect.
In addition to the measures I have just outlined, a new margin loan disclosure document is being designed. This document will inform potential borrowers in concise and clear language of the key factors they need to consider before they take out a margin loan.
This document is currently being designed in close cooperation with margin lenders and other stakeholders and will be separately introduced through regulations at a later date.
The new margin loan regime represents a major improvement in consumer protection in an area which, in the past, has been subject to, at best, loose and patchy regulatory coverage.
Turning now to the second area covered by the Financial Services Modernisation Bill, it will provide for Commonwealth regulation of the “traditional activities” of trustee corporations.
The term “traditional services” covers several personal trust and deceased estate administration services, such as acting as a trustee of a trust, applying for probate of a will or acting as executor of a deceased estate. Trustee corporations carrying out these tasks are currently regulated by the States and Territories.
There are several reasons why the current State-based authorisation of trustee companies needs to be replaced. Trustee companies that wish to operate in more than one jurisdiction must comply with differing and often inconsistent authorisation and reporting requirements. The State system lacks transparency and, where an applicant has been refused or not accepted, the reasons for rejection have been unclear.
This framework imposes unjustifiable barriers to entry on trustee companies, as well as unnecessary compliance costs and burdens.
Under the Commonwealth system, there will be a single licensing regime administered by one single, well resourced regulator —ASIC.
These changes will lead to a national market for trustee company services and significant efficiencies and savings in terms of start-up costs.
The State-based system also creates inconsistent outcomes for “consumers” of trustee company services.
As a starting point, consumers are entitled to know that their service provider is providing services efficiently, honestly and fairly... has adequate resources to carry out its functions... provides cost-effective dispute resolution... and has adequate compensation arrangements. While some State systems meet some of these criteria, others do not.
Under the Financial Services Modernisation Bill, the “traditional services” of trustee corporations will be deemed to be “financial services”, and will be covered by the consumer protection and disclosure requirements of the Corporations Act 2001 and the ASIC Act 2001. This will ensure that, in providing those services, trustee corporations will be bound by the financial product disclosure, licensing, conduct, advice and dispute resolution provisions of those Acts.
And overall consumer protection will be greatly enhanced.
The Government is aware of the need to protect charitable trusts by regulating the fees they may be charged by trustee corporations. It is proposed to “grandfather” the fees charged to existing charitable trusts and foundations. Thus, if the fees of the charitable trust would be increased due to the introduction of a new fee regime, the grandfathering provision would require that client to be charged as if they were still covered under the old rules.
It is proposed to maintain caps on the fees and commissions charged by trustee corporations to charitable trusts that are new clients, in line with the fee regime set out in the Victorian Trustee Companies Act 1984. These arrangements will be reviewed after two years. There will be full disclosure of the corporations’ current fees on the internet.
Due to the need for further consultation, the financial services disclosure regime for trustee corporations does not form part of this Bill, but will be developed in regulations.
The Bill also amends the regulatory framework in the Corporations Act governing the issue of debentures and promissory notes.
The amendments, which align the regulation of promissory notes with debentures, provide additional protection for investors by removing uncertainty in the law. This is a much-needed change following the collapse of Westpoint, which tried to use the issue of promissory notes with face values of at least $50,000 to avoid the operation of the law.
Under the amendments, all promissory notes issued to retail clients will be subject to the same regulatory regime as debentures, requiring the issue of a trust deed, the appointment of a trustee and the issue of a prospectus. Although thousands of investors incurred substantial losses through the Westpoint collapse, the previous government failed to act on this important issue.
The amendments also enhance transparency for debenture holders by creating a publicly available register of debenture trustees which will be established and maintained by ASIC.
The Ministerial Council for Corporations was consulted in relation to each of these amendments.
The amendments in the Bill in relation to the regulation of trustee corporations were the subject of consultations with States and Territory representatives. This consultation included consideration of the draft amendments by the Ministerial Council for Corporations.
During that process, some State and Territory Ministers raised some issues which the Commonwealth will consider further. However, the Council has approved the amendments for introduction, as required under the Corporations Agreement.
Full details of the measures in the Bill are contained in the explanatory memorandum.
I commend this Bill.
Debate (on motion by Senator Wong) adjourned.
Ordered that the resumption of the debate be made an order of the day for a later hour.
Bills received from the House of Representatives.
I indicate to the Senate that these bills are being introduced together. After debate on the motion for the second reading has been adjourned, I will be moving a motion to have the bills listed separately on the Notice Paper. I move:
That these bills may proceed without formalities, may be taken together and be now read a first time.
Question agreed to.
Bills read a first time.
I table a revised explanatory memorandum relating to the Education Services for Overseas Students Amendment (Re-registration of Providers and Other Measures) Bill 2009 and move:
That these bills be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
Leave granted.
The speeches read as follows—
Mr Speaker, much has been said about the International Education sector in Australia over recent months. Nearly half a million students come to study every year. They live here, work here and pay taxes. They contribute to our multicultural society while they gain skills and knowledge to take home.
Many in this place have joined me in condemning the recent appalling acts of violence against some students. Many too share my concern about the industry, growing so rapidly, with insufficient checks and balances, unfortunately attracting a small number of unscrupulous operators for whom the provision of quality education is not their first motivation.
Recently I announced that Bruce Braid, the former Liberal Member for Cook, would head up a review of the Education Services for Overseas Students Act 2000. I look forward to working with Bruce on this major piece of work.
Today I am introducing a Bill, The Education Services for Overseas Students Amendment Bill 2009, which makes adjustments to the operation of the current Bill, the Education Services for Overseas Students Act 2000.
The changes to this Act will require the re-registration of all institutions currently registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) by 31 December 2010.
Further, it clarifies the application of various provisions and to introduce processes that will increase the accountability of international education and training services providers under the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. The Bill will also seek to make international education providers’ use of education agents more transparent and accountable.
The National Code is a set of nationally consistent standards that govern the protection of overseas students and the delivery of courses to those students by providers registered on CRICOS. Only CRICOS courses can be offered to international students studying in Australia on a student visa.
The National Code is established under the Education Services for Overseas Students Act 2000. To become CRICOS-registered a provider must demonstrate that it complies with the requirements of the National Code. In recommending a provider for registration, the state or territory Designated Authority must also be satisfied that the provider is fit and proper to be registered.
Re-registration of all providers is intended to restore confidence in the quality of the Australian international education sector and to strengthen the registration process by reducing the number of high-risk providers currently in or seeking entry into the sector. To this end, two new registration criteria are introduced in this Bill. These are that the provider must have the principle purpose of providing education and that the provider has demonstrated capacity to provide education of a satisfactory standard.
Mr Speaker, we want to ensure that educational institutions providing courses for international students can be assured that their courses are the highest possible quality. We want our international visitors who come here to study know that the Government is looking after their interests.
The State Governments have already started rapid audits of providers, and these will be extended so that all providers working with international students will need to show they have the best interests of the students at heart – not simply a profit motive.
We know that most providers are doing their right thing, but we need to weed out the shonky operators. We’ll take advice from the Baird review, but this is the first, important step in the process of cleaning up an industry that has grown too fast, too soon.
The message to providers is, if you’re not providing your students with a quality education in a safe environment, clean up your act or risk being shut down.
The National Code is a legislative instrument. Breaches of the National Code by providers can result in enforcement action under the Act. This includes conditions on registration, suspension or cancellation of registration.
The Bill will require a registered provider to maintain a list of all of the persons (whether within or outside Australia) who represent or act on behalf of the provider in dealing with overseas students or intending overseas students. The registered provider will be required to publish the list of those agents either on its web site or in any manner prescribed by the Regulations. The Bill will also provide for regulations to be made dealing with providers’ agents. These regulations will be developed with a view to providing further protections for overseas students through such measures as only allowing providers to deal with agents who have undertaken prescribed training, and to only select agents that are registered in their home countries - if such requirements exist in those countries. The Regulations may also prescribe a requirement on providers to host a website that would allow students to make anonymous comments about their experience with agents. These requirements are currently being considered and will be finalised through consultation with key stakeholders.
The Bill will also strengthen the efficacy of suspensions imposed on a provider’s CRICOS registration and reduce the risk of unreasonable financial detriment to a provider arising from a suspension. The Bill will provide flexibility by giving the Minister the discretion to enable a provider to solicit or accept money for a course from an overseas student (or an intending overseas student) for part or all of the period of a suspension. This flexibility will allow the Minister to adjust the sanction in a manner commensurate with the level of the breach and also have regard to the individual circumstances in each case.
In addition the Bill will facilitate the national alignment of the regulatory actions taken by the Commonwealth, State and Territory education authorities relating to the delivery of courses to overseas students. The Bill will permit conditions imposed by a State or Territory designated authority to be recognised and adopted by the Commonwealth at the time of effecting the CRICOS registration of the provider or at any time after registration. The Bill will also provide a discretionary capacity to modify the duration or circumstances in which any condition imposed is to apply.
The Bill will also lessen the financial and regulatory burden on providers who may be simply changing their legal entity for the purpose of improving business operations in circumstances where the delivery of courses and outcomes for international students will not be affected.
The Bill will also enable the Regulations to prescribe the criteria to be applied in considering whether a particular course is a suitable alternative to the obligation otherwise imposed on a registered provider to refund monies paid by a student.
Once this Bill is passed by the Parliament, hopefully in a timely way to ensure these measures can commence quickly, the cooperation of the States and Territories, along with the providers and many other stakeholders of the industry will be required. I would like to take the opportunity to thank those groups for the wiliness already displayed to address the current concerns and look forward to working with them to strengthening our International Education Sector.
These amendments improve the protections already in place for both students and the industry.
LONG SERVICE LEAVE LEGISLATION AMENDMENT (TELSTRA) BILL 2009
This Bill will continue existing transitional long service leave arrangements that apply to Telstra and its employees, pending development of national long service leave arrangements. The Bill will avoid unnecessary administrative complexity for the company and uncertainty for employees, and recognises the unusual position that Telstra finds itself in as a result of historical circumstances.
Telstra was originally a government-owned and operated entity and as such its employees were formerly Australian Government employees covered by Commonwealth employment-related legislation, including the Long Service Leave (Commonwealth Employees) Act 1976.
The Telstra (Transition to Full Private Ownership) Act 2005, enacted by the previous Government, provided that Commonwealth employment-related legislation ceased to apply when the Commonwealth ceased to have a majority control of the company. However, the Long Service Leave (Commonwealth Employees) Amendment Act 2006 deferred this change in relation to long service leave for three years – meaning that Commonwealth long service leave legislation would continue to apply until 24 November 2009. At that time Telstra employees would be covered by relevant State or Territory laws.
As we have previously announced, the Government intends to develop a national long service leave scheme, in consultation with the States and Territories. These arrangements will form part of the National Employment Standards in the Fair Work Act 2009. Consultations on this new national scheme have commenced and are ongoing.
The fact that Telstra has been subject to Commonwealth long service leave legislation, and that this coverage will cease on 24 November 2009, puts it in an unusual position.
Telstra will need to transition from the Long Service Leave (Commonwealth Employees) Act to multiple State and Territory schemes when current arrangements expire on 24 November 2009, and then back to a Commonwealth scheme when new national arrangements are implemented. To avoid the complexity and uncertainty that this will cause, Telstra and relevant unions have suggested to the Government that existing transitional arrangements be retained until the new National Employment Standard on long service leave is put in place.
The Government considers this to be a sensible proposal, and is happy to facilitate it by making minor amendments.
The effect of this Bill is to extend the transitional application of the Long Service Leave (Commonwealth Employees) Act to Telstra and its employees. This will preserve the status quo for Telstra employees with respect to long service leave entitlements until national long service leave arrangements are put in place through the National Employment Standards.
This Bill will amend the Telstra Corporation Act and the Telstra (Transition to Full Private Ownership) Act to enable the Long Service Leave (Commonwealth Employees) Act to continue to apply to Telstra.
The Bill will also make consequential amendments to the Long Service Leave (Commonwealth Employees) Act.
The Government considers that this Bill is a desirable transitional measure that recognises the particular circumstances of Telstra and its employees. It preserves the status quo pending development of national long service leave arrangements for all federal workplace relations system participants.
STATUTE STOCKTAKE (REGULATORY AND OTHER LAWS) BILL 2009
The Government is delivering an ambitious regulatory reform agenda.
Well-designed and targeted regulation is essential to reducing costs and complexity for business and the not-for-profit sector and forms a key part of the Government’s commitment to microeconomic reform. Well designed regulation will raise Australia’s potential economic growth rate through increasing Australia’s productivity and international competitiveness, and fostering innovation and structural flexibility.
Our policy approach is both far-sighted and comprehensive. The Prime Minister, speaking as Opposition Leader in April 2007, set out a wide-ranging better regulation agenda to systematically reduce the level of poorly designed and ineffective regulation on Australian business. The Prime Minister committed the Government to maintain rigorous regulatory impact analysis to protect business from new, unnecessary regulation as well as to reform existing regulation.
The Government’s systematic approach contrasts with episodic regulatory reform efforts by previous Australian Governments, which have not been sufficient to deliver continuous improvement in the quality of regulation. Since taking office, the Australian Government has established an institutional and policy framework which consciously reflects the OECD’s best practice principles for regulatory quality and performance.
Advocacy for better regulation has been significantly strengthened by giving it explicit Cabinet-level status. The Government has strengthened Regulatory Impact Analysis (RIA) requirements, by combining the efforts of the Office of Best Practice Regulation with a new deregulation policy function within the Department of Finance and Deregulation. A “one-in one-out” approach to regulatory proposals has been adopted as part of a range of measures to assist in managing in the regulatory stock.
Strengthened policy oversight processes are providing greater quality assurance in respect of new regulatory proposals, improving policy design and providing a capacity to more readily target inefficient regulation.
Accompanying these structural initiatives to embed better regulation practices, I am undertaking a range of regulatory reform measures that will deliver clear benefits to business and the economy.
This bill is an immediate down-payment on the Government’s commitment to continuously clean up red-tape. It proposes to amend or repeal almost 30 Acts where the provisions no longer have any function or purpose, including the Income Tax (Franking Deficit) Act 1987 and a number relating to the removal of the digital data service obligations.
In addition to this Bill, the Government is undertaking a wider regulation clean up exercise, which I expect will result in over 200 pieces of unnecessary subordinate legislation being removed during 2009.
These redundant regulations were identified through a stocktake of redundant regulation undertaken by all Commonwealth departments during 2008. Such an exercise has never been done before.
Leaving outdated, redundant regulation on the books is not just sloppy housekeeping. It increases the costs for business by making it harder to identify which rules apply as well as increasing the probability of inconsistent or overlapping rules.
Further, the Government has initiated a major review of the stock of existing regulation. As announced in the 2008-09 Updated Economic and Fiscal Outlook, a review of pre-2008 subordinate legislation and other regulation is underway, to document those regulations which impose net costs on business and to identify scope to improve regulatory efficiency. Around 30,000 subordinate instruments are being reviewed to identify reform priorities.
Several reform projects are already underway through Ministerial Partnerships. My partnership with the Minister for Financial Services, Superannuation and Corporate Law to develop streamlined, accessible financial services product disclosure statements (PDS) to replace the current lengthy and unduly complex documents has delivered a comprehensive and informative Product Disclosure Statement for First Home Saver Accounts, which extends to a mere four pages. We are now working on simplifying other financial services product documentation for both consumers and business. Further, I am working in partnership with the Minister for Health and Ageing to review existing health technology assessment processes to wipe out the unnecessary regulatory costs inherent in the existing system and to enable people to get earlier access to innovative and cost-effective new health technology.
The Government has responded to the Productivity Commission’s two Annual Reviews of Regulatory Burdens on Business covering the primary, manufacturing and distributive trades sectors, accepting or accepting in principle 68 of the Commission’s 84 responses. The forthcoming Productivity Commission report on regulatory burdens faced by business in the social and economic infrastructure services offers further scope for regulatory improvement.
Our agenda also encompasses cross-jurisdictional regulation. Business has long indicated concerns with obstacles to competitiveness through costs generated by inconsistent and duplicative regulatory regimes across the Commonwealth, states and territories.
On 29 November 2008, the Council of Australian Governments (COAG), which facilitates inter-jurisdictional cooperation on matters of common policy interest, agreed to reduce costs to business by committing to reform in 27 separate areas of cross-jurisdictional regulation. The agreement will provide the State and Territory governments with funding of up to $550 million over five years to facilitate and reward these national regulatory reforms and deliver a seamless national economy.
The COAG Business Regulation and Competition Working Group (BRCWG), which I co-chair with Dr Craig Emerson, the Minister Assisting me on Deregulation, is taking forward these reforms. Substantial progress is continuing on a number of fronts:
Finally, in recognition that regulatory reform is a continuing challenge, the Government requested the OECD to undertake a review of regulatory settings and policy development processes in Australia. The review will provide valuable insights to support the Government’s commitment to strengthened processes for regulation making and review and better regulatory outcomes. I have asked the OECD to report its findings by December this year.
The challenge for all governments in these times of global economic stress is to maintain microeconomic reform efforts directed at enhancing productivity, competitiveness and growth potential, including through a sustained commitment to better regulation. This Bill is an important step in delivering on the Government’s commitment to continuous improvement in regulation.
I commend the Bill.
TRADE PRACTICES AMENDMENT (AUSTRALIAN CONSUMER LAW) BILL 2009
An historic reform
The Trade Practices Amendment (Australian Consumer Law) Bill is a Bill to the amend the Trade Practices Act 1974 and the Australian Securities and Investments Commission Act 2001 to implement commitments made in 2008 by the Council of Australian Governments to introduce a single, national consumer law —to be called the Australian Consumer Law.
The features of the Australian Consumer Law to be implemented by this Bill are the new, national unfair contract terms law and new penalties, enforcement powers and options for consumer redress in relation to the consumer protection provisions of the Trade Practices Act and the ASIC Act.
This Bill is the first legislative step to give effect to the most far-reaching consumer law reforms in at least a generation.
Australia’s generic consumer laws are, for the most part, effective. But, as the Productivity Commission found in its Review of Australia’s Consumer Policy Framework, they can be much better.
We now have 13 generic consumer laws in force nationally and in the states and territories. Broadly speaking, they look similar, but each of them differs – to the cost of business and consumers. And, there are differences in the way these laws are enforced by Australia’s consumer regulators. There are also numerous industry-specific laws which provide a host of additional consumer protections, but which add yet further complexity.
As we move towards a single, national market – a seamless national economy as called for by the Business Council of Australia and the 2020 Summit – this maze of consumer laws must be rationalised. We must reduce confusion and complexity for consumers and provide consistency of consumer protection. We must reduce compliance burdens for business. We need more proportionate, effective and nationally consistent enforcement.
In undertaking this task, the Government has benefited from the work of the Productivity Commission, which identified the solutions that we are now implementing.
The Business Regulation and Competition Working Group of COAG – which I co-chair with the Minister for Finance and Deregulation – has been given the task of advancing a regulatory reform agenda covering 27 areas of regulation. Reform of consumer laws is among the most important of these 27 reforms. In September 2008, the Business Regulation and Competition Working Group considered detailed proposals for a national consumer law developed by the Ministerial Council on Consumer Affairs. The Working Group recommended COAG’s agreement to establish a single national consumer law.
On 2 October 2008, COAG agreed to establish a national consumer law that is based on the existing consumer protections in the Trade Practices Act, draws on best practice in existing state and territory laws and includes a national unfair contract terms law.
The current environment
Amidst the worst global recession in 75 years, Australians are facing serious economic challenges. In confronting those challenges, we have to deal with complex, sophisticated markets. Marketing is becoming cleverer. Consumers can now shop on-line and through their mobile phones. They have access to money through new and sophisticated payment systems. And, the range of goods and services available today is enormous.
This Bill will introduce changes that will make life easier for all consumers – through clearer, fairer standard-form contracts and more effective enforcement of our consumer laws.
The sophistication of modern consumers and the complexity of modern markets means that we need laws —national laws —that can keep pace with these changes.
A single national law, supported by better policy development and decision-making processes, is the best means of achieving better results for consumers and business. Rather than relying on nine parliaments to make changes, this new framework will ensure responsive consumer laws with a truly national reach. The government has, with the states and territories, negotiated an Intergovernmental Agreement to set in place arrangements for future changes to the Australian Consumer Law, and allow for cooperation on policy development and enforcement.
Overview of the Bill
The Bill is the first legislative instalment of the Australian Consumer Law reform process. The Bill will establish the legislative underpinnings of the Australian Consumer Law. It will also introduce laws to deal with unfair contract terms in consumer contracts, which can be applied in every state and territory from the date of their commencement at the national level. And it will introduce new penalties and enforcement powers for the Australian Competition and Consumer Commission and the Australian Securities and Investment Commission, together with improved options for consumer redress.
The Bill includes amendments to the ASIC Act as a consequence of the need to maintain a separate legislative framework for the regulation of financial services, which derives from the referral of powers to the Commonwealth by the States in 2001. The government remains committed to ensuring that there is consistency between generic consumer protections and those that apply to financial services, to the extent that it is practical to do so.
The Bill will also make some minor consequential changes to the Administrative Decisions (Judicial Review) Act 1977 and the Telecommunications (Interception and Access) Act 1979.
The government will introduce a second instalment of reforms in 2010 to complete the Australian Consumer Law reform process.
This second Bill will introduce a new national product safety legislative and regulatory regime, as agreed by COAG in July 2008. And, it will introduce reforms to augment and modify the current consumer protection provisions of the Trade Practices Act, based on best practice in existing state and territory consumer laws. It will also amend the Trade Practices Act to change its name to the ‘Competition and Consumer Act’.
The entire Australian Consumer Law will be fully implemented by the end of 2010 by the Australian government and each state and territory in accordance with the National Partnership Agreement to Deliver a Seamless National Economy agreed by COAG in November 2008 and finalised in early 2009.
The process for developing the Bill
The last attempt to create a national consumer law was in 1983. Seven years later, the ‘common’ – and I use that term advisedly – provisions were finally implemented in all jurisdictions. But, these provisions were not the same for all of Australia’s consumer laws, and jurisdictions soon began to make changes and the laws started to diverge.
The reforms contained in this Bill —and to be contained in the second Bill —are the culmination of a long policy review and development process undertaken by the Australian government in close consultation with the states and territories. The Australian government has also drawn on the views of many consumers and businesses, and those bodies which represent their interests.
In 2007 and 2008 the Productivity Commission reviewed Australia’s consumer policy framework. And, in May 2008, my predecessor, the now Minister for Financial Services, Superannuation and Corporate Law and Minister for Human Services, tabled in the Parliament the Commission’s comprehensive Final Report and recommendations. These have provided the government with a detailed roadmap for consumer policy reform.
In July 2008, COAG charged the Ministerial Council on Consumer Affairs with the task of developing a package of reforms based on the Commission’s recommendations. This resulted in the Ministerial Council settling recommendations for a national consumer law and new enforcement mechanisms on 15 August 2008. These detailed recommendations were ratified by COAG on 2 October 2008.
Officials at the Australian government, state and territory levels have worked together to develop these legislative proposals in accordance with COAG’s agreed model. They will continue to do so in developing the second reform Bill that the Parliament will consider in early 2010.
Expressions of gratitude
Before I go on, let me thank my predecessor, the Hon Chris Bowen MP, and my new state and territory colleagues on the Ministerial Council on Consumer Affairs for their efforts over the past year in securing these reforms. Their personal commitment to reform has ensured that these reforms will – at long last – happen.
I also commend my Ministerial Council colleagues and their officials for the spirit of openness and cooperation that has characterised the development of the reforms to date. Indeed, the shared expertise and experience of consumer policy officials in all Australian governments has proven invaluable to their development. I look forward to working closely with my colleagues and their officials in the future to fully implement this important reform which will nationalise Australia’s consumer laws.
I understand that this spirit of openness and cooperation has also characterised the dealings that my opposition counterpart —the member for Cowper —has had with my predecessor and his office in relation to questions about the content of the Bill. I look forward to working with him as we deliberate on this Bill.
I also thank those many people who have provided the government with the benefit of their views and expertise in preparing the legislation, including the members of the Commonwealth Consumer Affairs Advisory Council, consumer, business, legal and academic representatives and the many people who have provided their views in the public consultations conducted by the Productivity Commission, the Standing Committee of Officials of Consumer Affairs and the Treasury.
Key amendments in the Bill
I turn now to the key provisions of the Bill.
Unfair contract terms
Unfair contract terms can impede competition by making contracts difficult to understand. And they can limit a consumer’s choices and ability to seek out alternative options. They are used by some businesses to transfer all of the risk in a transaction away from themselves and onto the consumer.
Some members will be familiar with the similar laws that have been in place in Victoria since 2003. And laws tackling unfair contract terms exist in the United Kingdom, in the rest of the European Union, in Japan and in South Africa. Laws which allow for the examination of the fairness of contracts and contract terms also exist in jurisdictions in Canada and the United States.
The government acknowledges the many benefits that flow from using standard-form contracts in business-to-consumer transactions. They keep costs down and save time. But, they can often be used as a means of shielding a business from risk in a way which is not fair.
A poorly constructed contract can be difficult to understand and make it hard to discern what has been actually agreed by the parties —by being complex, long and unclear.
This reform is about making contracts clear in business-to-consumer transactions. It is about letting consumers have the ability to make an accurate assessment of the risks to them of signing a contract. And, it is about ensuring that a business assesses its risk properly, and does not use its stronger bargaining position to simply push all risk away from itself.
The law is not about the government telling business what to put into contracts. And, it is not about undoing bad bargains and letting consumers walk away from poor choices.
Consultation
The unfair contract terms law reforms were agreed by COAG in October 2008. They are based on the extensive consultation process undertaken by the Productivity Commission in relation to Australia’s national consumer laws.
These reforms are based on the extensive practical experience of the Victorian government in implementing and enforcing similar laws. They represent an agreement and a commitment by all Australian governments as to what this law should look like.
Since then the government has sought views on both the reforms more generally —in February —and on an exposure draft of the unfair contract terms provisions —in May. The Treasury received 102 submissions in response to the February consultation, and more than 70 of these focused on unfair contract terms. And, in May, Treasury received nearly 100 more submissions on the exposure draft provisions.
The government has also had numerous meetings with key stakeholders about these changes. And I understand that the Treasury has met and spoken with a wide range of people about these provisions.
We have consulted, and we have listened. And this is reflected in the provisions set out in this Bill, which differ in key respects from those that the government exposed in May, particularly in respect of the exclusion of business-to-business transactions at this time.
In relation to the question of whether business-to-business contracts —and particularly those involving small businesses —should be included under the unfair contract terms provisions, the government is currently reviewing both the unconscionable conduct provisions of the Trade Practices Act and also the Franchising Code of Conduct.
Both of these reviews cover issues relating to the protections afforded to businesses in circumstances where they are dealing with other businesses with greater bargaining power and market power. In responding to these reviews, the government is seeking the views of businesses —large and small —about the effectiveness of our current laws. The government will further consider this issue when these reviews are completed.
The government has also indicated its intention that this Bill should be referred to a Senate Committee, and this issue will —no doubt —be further considered as part of that process.
The provisions
This reform was recommended by the Productivity Commission and the form of the provisions represented in this Bill reflects —with some refinements —the Commission’s approach.
In so doing, the drafting of the provisions also takes account of the approach adopted in Victoria and addresses some practical considerations that have arisen in the consultation process for the Bill.
The national unfair contract terms provisions will only apply to consumer contracts in a standard form.
Contracts between businesses are excluded from the scope of the unfair contract terms provisions, except in respect of some ‘sole traders’, who may have common business and personal interests.
A ‘consumer contract’ is defined as a contract for a supply of goods or services or the sale or grant of an interest in land in the Australian Consumer Law as applied by the Trade Practices Act.
In respect of the ASIC Act, a ‘consumer contract’ is a contract that is a financial product or a contract for the supply, or possible supply, of financial services.
In both cases, such contracts are limited to circumstances where the individual whose acquisition of what is supplied under the contract is wholly or predominantly for personal, domestic or household use or consumption.
The unfair contract terms provisions will cover the supply of any good, service or interest in land —or any financial product or service —to an individual consumer provided that the acquisition of the thing supplied under the contract is wholly or predominantly for personal, domestic or household use or consumption. The provisions could include some circumstances where individuals intermingle their personal and business affairs in conducting their business activities, provided that anything acquired was acquired wholly or predominantly for personal, domestic or household use or consumption.
The reforms will provide that terms are void if they are unfair, the contract is a standard-form contract, and in the context of the ASIC Act, the contract is a financial product or a contract for the supply, or possible supply, of financial services.
A term causing detriment, or a substantial likelihood of detriment, will be unfair where there is a significant imbalance in the parties’ rights and obligations and the term is not reasonably necessary to protect the legitimate interests of the supplier.
The new law will be supported by consistent national guidelines on its enforcement, developed by the ACCC, ASIC and the state and territory consumer agencies. I expect that the ACCC, ASIC and the state and territory consumer agencies will consult widely with industry stakeholders on draft national guidance, and that the guidance will be made publicly available in good time for the commencement of the provisions.
In undertaking this important task, our regulators can draw on the extensive enforcement experience and expertise of Consumer Affairs Victoria and of their international counterparts, particularly the UK Office of Fair Trading.
A balance between effective provisions and business concerns
In developing the legislation the government has sought to balance two concerns: the need for the law to be effective and the need for business to have certainty.
With this in mind, the provisions contain a number of features designed to ensure that they are effective. Without these features, the government believes that the enforcement of the provisions —whether by individuals or consumer enforcement agencies —would be seriously compromised.
First, it will be for the party advantaged by a term —usually a business —to rebut the presumption that the term is not reasonably necessary in order to protect its legitimate interests.
Second, it will be for a party that asserts that a contract which is the subject of a challenge is not in a standard form —again, we expect this would usually be a business —to rebut the presumption that the contract is in a standard form.
In both cases, the issues are matters that the business will know and will be able to introduce the evidence it considers most appropriate to address the question.
It would impose a huge impediment to enforcement if an individual claimant was required to prove either of these matters, as they are not likely to be able to bring this evidence before a court without disproportionate effort and expense. Similarly, a regulator would need to use intrusive and expensive coercive information gathering powers to obtain the required information to bring a case.
To leave out these key provisions would undermine the practicality of these reforms.
Factors to be taken into account
In determining whether a term is unfair a court may take into account any matters that are relevant. But, the court must take into account some specific issues.
First, it must take account of the extent to which the term would cause, or is substantially likely to cause, detriment. Second, the court must take account of the extent to which the term is transparent. And, third, the court must take account of the contract as a whole.
The question of detriment
The provisions will require the court to consider the detriment, or a substantial likelihood of detriment, arising from the term. This acknowledges that a consideration of detriment is a key matter to be included in any case concerning unfair contract terms.
Reference to a ‘substantial likelihood of detriment’ makes it clear that, in order to take action, a claimant does not need to prove that he or she has suffered actual detriment, but that there is a substantial —that is, more than a hypothetical —likelihood of detriment.
Without a term ever being enforced, it can still have the effect of causing customers to act in ways that may not be in their own best interests. This is no different to any situation where a party can seek an injunction and without this sort of relief many harmful practices directed at consumers and businesses could not be prevented.
If a customer has evidence of actual detriment flowing from the exercise of a term, then this will be useful evidence in the case for relief. And, having done this, the customer could claim damages and other forms of compensation.
If a customer alleges that there is a substantial likelihood of detriment, then the customer must do more than suggest that there is a hypothetical possibility of harm. Instead, the customer will need to show that, if the term is enforced, there is a strong likelihood of there being harm. Such an action would limit the relief available, generally to a declaration that the term is unfair —and therefore void —and an injunction preventing any attempted use of the term.
In the context of the provisions, detriment includes both financial and non-financial detriment. Some have suggested that the only relevant detriment is financial detriment. And in some cases that is all that will really be relevant. But in others, where a business abuses the terms of a contract by behaving unreasonably, causing irritation, inconvenience and distress to a customer, then this can — and should —be taken into account.
Transparency
There is a view that if something is disclosed then it is all right —no matter how unclearly or obscurely that information is presented. This reflects the view – put about by some – that all standard-form contracts reflect a ‘bargain’ reached by the parties, which is well understood by them and should not be subject to any scrutiny or challenge once a signature is on the page.
Thirty-six years ago, the then Attorney-General, Senator Murphy, when introducing the Trade Practices Bill into the Senate, noted that the principle of caveat emptor ‘may have been appropriate for village markets’ but it had ceased to be appropriate as a general rule.
In complex markets, with ever-increasing rates of innovation and change, the notion that a customer is always perfectly informed and able to act in his or her own best interests represents a view which is simply not sustainable, and does not reflect the reality of modern business or contract law.
Indeed, a lack of transparency may be a strong indicator of the unfairness of the terms in a consumer contract. And the existence of transparency, on its own account, cannot overcome unfairness. This is why it is important that this key factor be explicitly included in the legislation.
The contract as a whole
The government recognises that any contract —whether it is in a consumer contract or not —represents a balance of interests and considerations. And, no term can be considered in isolation. Indeed, some terms which, at first blush, might seem outrageously unfair, may be entirely reasonable when considered in context. For this reason, the government has included an express requirement that a court must take into account the contract as a whole when considering a particular term.
Examples of unfair terms
The provisions include a non-exhaustive, indicative list of examples of terms which may be considered unfair. This ‘grey’ list will give statutory guidance on those types of terms that are regarded as being of concern. It does not prohibit the use of those terms.
The government recognises that there may be times where the use of ‘grey listed’ terms is reasonable. Any consideration of a ‘grey listed’ term is subject to the unfair terms test.
And, indeed, the consultation paper the government issued on 11 May 2009 acknowledges that businesses may need to do things like assign contracts or vary agreements. The government’s principal concern in most cases is to ensure that such terms in consumer contracts —where they are necessary —are clear to customers, and that businesses are upfront about them.
Prohibited terms
In keeping with the Victorian provisions, the unfair contract terms law will permit the prohibition of types of terms of a consumer contract that is a standard-form contract. A prohibited term is a term of a kind prescribed by the regulations.
The government has consulted on the question of whether specific terms should be prohibited. The Government has also canvassed views on specific types of terms that could be prohibited. While there are terms with few justifications for their use, the government does not propose to prohibit any terms at this time. We will keep this issue under review, together with the states and territories, in the light of the implementation and enforcement of the provisions.
Any future prohibition of terms prescribed in regulations is subject to the government’s best practice regulation requirements and the voting process for amending the Australian Consumer Law, which will require the agreement of four other jurisdictions, including three states.
Meaning of a standard form contract
The provisions apply to consumer contracts in a standard form. While the Bill does not define a ‘standard-form contract’ it does set out a range of considerations that are to be taken into account when assessing whether a contract is, or is not, in a standard form. This will include considerations such as the way in which the contract was prepared and whether there was any opportunity to negotiate its terms, among others. And, the government has included in the Bill the power to prescribe additional factors, to take account of evolving business practices. In taking this approach, the government was concerned that using a hard and fast definition would only create opportunities for avoidance through the use of sham negotiations and options.
Terms excluded from the provisions
The provisions will exclude certain terms and certain contracts from their operation. This has been done for a range of reasons, but the key consideration is that there must be justification for the exception which goes beyond sectoral concerns to avoid the operation of generic regulation.
The provisions will not permit certain types of terms to be challenged under the ‘unfair terms’ test. These are terms which:
The exclusion of terms which ‘concern the main subject matter of a consumer contract’ is intended to exclude the basis for the existence of the contract. A customer has decided to purchase the goods, services or land, which are the subject of the contract, and they should not be permitted to challenge this on the basis that they later decided this was not a good idea.
The exclusion of ‘upfront price’ is intended to exclude from consideration the basic price paid for the goods, services or land supplied under the contract. This exclusion is based on the premise that it would not be desirable to permit a consumer to challenge the basic price paid for the goods, services or land at a later time, when this is an issue about which the consumer has a choice. If the price is too high, the consumer can decide not to enter into the contract.
In a credit contract ‘consideration’ is the interest payable provided it is disclosed at or before the time the contract is made. If the standard-form contract is a contract under which credit is provided, the upfront price will include the total amount of principal that is owed under the credit contract.
Upfront price will not include any other consideration —that is, further consideration —which is contingent on the occurrence or non-occurrence of a particular event. Terms that require further payments, which are levied as a consequence of something happening or not happening at some point in the duration of the contract, are covered by the unfair contract terms provisions. Such payments are additional to the upfront price, and are not necessary for the provision of the basic supply, sale or grant under the contract.
In clarifying this issue on the face of the legislation, the government has taken account of the debate in the United Kingdom, where there has been litigation on the question of whether contingent fees are part of the upfront price. We believe that the provision, as drafted, makes it clear that such contingent fees and charges are subject to the provisions.
The exclusion of terms ‘required, or expressly permitted, by a law of the Commonwealth or a state or territory’ is intended to ensure that a court is not required to determine the fairness of terms which are required to be included in consumer contracts as a matter of public policy. There are many examples of mandated consumer contracts or terms that are required to be used in order to ensure the validity of specific transactions.
Contracts excluded from the provisions
The provisions will also exclude shipping contracts and contracts that are constitutions of companies, managed investment schemes and other kinds of bodies from their operation. The government considers these exclusions are necessary as these types of contracts can be entered by natural persons for the supply of things of a personal, domestic or household nature.
The unfair contract terms provisions will not apply to contracts which are shipping contracts. Shipping contracts include contracts of marine salvage or towage; a charter party of a ship; or a contract for the carriage of goods by ship. These contracts are already subject to a comprehensive legal framework (nationally and internationally) that deals with contractual terms in a maritime law context.
The unfair contract terms provisions will also not apply to standard-form contracts which are constitutions of companies, managed investment schemes or other kinds of bodies. A constitution is given the meaning it has under section 9 of the Corporations Act 2001. These contracts are carved out because companies, managed investment schemes – which include many superannuation and other investment trusts – and other kinds of bodies have a choice regarding the rules that govern their internal management.
Section 15 of the Insurance Contracts Act 1984 has the effect that these provisions will not apply to insurance contracts as regulated by the comprehensive regulatory scheme set out in that Act.
Remedies in relation to the unfair contract terms provisions
From the commencement of the unfair contract terms provisions, existing Trade Practices Act and ASIC Act remedies and the new enforcement powers, remedies and penalties will apply in relation to prohibited terms and, in some respects, unfair terms that are the subject of a declaration.
A claimant who is party to the contract is able to seek all of the remedies available to the Federal Court under the Federal Court of Australia Act 1976. These include any remedies to which they would be entitled under a legal or equitable claim. However, as the ACCC and ASIC will not be a party to a contract, the Bill would permit both regulators to seek a declaration from a court that a term of a standard-form contract is unfair, or is a prohibited term.
If a party then seeks to apply or rely on, or purports to apply or rely on, a term which is the subject of a declaration then the regulator may seek all of the remedies available in respect of a contravention of the Trade Practices Act and ASIC Act.
In relation to prohibited terms, a party who includes, applies or relies on, or purports to include, apply or rely on a prohibited term is taken to have engaged in conduct that contravenes the Australian Consumer Law, and will be subject to the existing enforcement and remedies provisions in the Trade Practices Act and ASIC Act, along with the new civil pecuniary penalties, enforcement powers and options for consumer redress provisions that I will outline in greater detail shortly.
Application
The unfair contract terms provisions will apply to all consumer contracts which are covered by its provisions and which are made after its commencement. They will also apply to all contracts renewed or varied after that date, but only to the extent that the contract is renewed or varied, and in respect of conduct occurring after the date of renewal or variation.
Commencement
The government has previously said that there is no reason to hold up these reforms and that they could commence on 1 January 2010. This date is in line with the intended commencement of the new national consumer credit reforms. This is achievable. However, I am mindful of the need for businesses to ensure that they comply with the legislation and that they may need more time. With this in mind, there is provision in the Bill for a later commencement, if needed.
Future consultation
While the government has consulted on this issue several times, I am aware that there are different views among stakeholders in relation to the unfair contract terms provisions. With that in mind, the government proposes to refer the Bill to a Committee on its introduction into the Senate to enable a further opportunity for those views to be explored publicly.
National enforcement powers and penalties
The Bill introduces new, enhanced enforcement powers for consumer laws.
For too long, our national regulators have been hampered by a limited range of powers to tackle harmful and exploitative business practices which breach the Trade Practices Act and the ASIC Act. And, their state and territory counterparts have had a wider range of proportionate powers to enforce consumer laws effectively for many years.
Consumers increasingly demand information, advice and help in dealing with the concerns and issues they have with business behaviour.
In 2007-2008, the ACCC received more than 65,000 calls about scams. And it received more than 24,000 inquiries about misleading and deceptive conduct and thousands more complaints about other consumer law issues. Each of the state and territory offices of fair trading also receives thousands of complaints every year. Indeed, Victorian consumers made 545,000 calls to their Consumer Helpline last year.
This Bill will ensure that our national regulators – the ACCC and ASIC – have a broader range of more effective and proportionate enforcement options to protect and help consumers.
The ACCC and ASIC will have new options for enforcement, including civil pecuniary penalties and disqualification orders. They will have the ability to issue infringement notices, substantiation notices and public warning notices. They will also be able to seek redress – such as refunds – for consumers not party to enforcement proceedings.
These new powers, taken together with the existing civil remedies and criminal sanctions, will ensure that the ACCC and ASIC are fully equipped to enforce the law. And, these powers will be part of the Australian Consumer Law – which will introduce a suite of consistent national consumer law enforcement powers for the first time.
Civil pecuniary penalties
Civil pecuniary penalties are not currently available to deal with breaches of the consumer protection provisions of the Trade Practices Act and the ASIC Act. This reform will allow actions seeking pecuniary penalties at the civil standard where appropriate without having to pursue criminal sanctions that are more costly and very serious for those accused of a breach.
Civil pecuniary penalties represent an important penalty to punish misconduct in breach of the consumer protection laws and allow proportionate action to be taken in appropriate cases. Similar powers have existed for many years in relation to breaches of the restrictive trade practices provisions of the Trade Practices Act.
Civil pecuniary penalties will be available for breaches that can currently only be punished by criminal sanctions and for breaches of the unconscionable conduct provisions of the Trade Practices Act and the ASIC Act. These penalties will be serious – with maximum penalties of up to $1.1 million for corporations and $220,000 for individuals. No-one will be exposed to a civil pecuniary penalty of a size greater than those available under the existing criminal regime.
Civil pecuniary penalties will not be available for breaches of section 52 – which concerns misleading and deceptive conduct – as it aims to establish a norm of conduct in the market, rather than establish an offence.
Disqualification orders
Disqualification orders are currently not available in relation to breaches of the consumer protection provisions of the Trade Practices Act and the ASIC Act, but are available in relation to breaches of the restrictive trade practices provisions of the Trade Practices Act and the Corporations Act 2001.
The ACCC and ASIC will have the power to seek a disqualification order from the court to ban people who disregard the consumer protection laws from being a director of a company, where the circumstances warrant it.
Disqualification orders can also deal with the problem of ‘phoenix companies’ set up by unscrupulous operators seeking to hide behind the corporate veil to harm and exploit others; for example, through shonky investment schemes and other scams.
Disqualification orders will apply - in respect of consumer protection - to the civil pecuniary penalty provisions, except in those relating to substantiation notices, and the criminal provisions of the Trade Practices Act and the ASIC Act.
Substantiation notices
A key gap in the powers of the ACCC and ASIC is the lack of an ability to quickly and easily require information to substantiate claims made in representations by businesses.
These notices will serve as a preliminary investigative tool. They will provide the ACCC and ASIC with an effective means of seeking information to assist in determining whether a contravention of the consumer law has occurred, particularly in relation to potentially misleading and deceptive conduct, false or misleading representations or ‘bait’ advertising.
The Bill will empower the ACCC and ASIC to issue a substantiation notice which requires a person to respond within 21 days to a request to furnish information, or produce documents which may be capable of substantiating or supporting claims or representations made by that person, or their ability to supply, in relation to the supply or possible supply of goods, services, land or financial services.
While a person must respond to a notice, they do not have to prove the claim, just provide information capable of supporting or substantiating the claims or representations they have made.
Redress for non-parties
The redress for non-parties provisions of the Bill will allow the ACCC and ASIC to act more effectively where, for instance, thousands of consumers suffer small losses on which each of them might not take action individually because of cost and inconvenience. Businesses should not profit from consumer detriment, just because the amount is small or the harm is spread widely.
These provisions address a concern about the limitations of the current scope of the powers of the ACCC, which was brought to a head in the 2002 decision of the Full Federal Court in Medibank Private and Cassidy, where the Commission’s powers were found not to be sufficient to entitle it to seek relief on behalf of persons who were not parties to the enforcement action. This reform will remedy that deficiency.
This reform will allow a court to order the payment of refunds and similar forms of redress without the need for all consumers affected to be named as parties to the regulator’s court proceedings.
This is not a general power to award damages, but a power to order redress where that loss or damage is clearly identifiable and there is no need to adjudicate the merits of each particular case. It could be used to order redress of a standard form, such as the making of an apology, the exchange of goods or the payment of a refund.
Redress for non-parties will be able to be sought where a person engages in conduct that contravenes the unconscionable conduct or consumer protection provisions in the Trade Practices Act or the ASIC Act, or where a court has made a declaration that a term of a consumer contract is an unfair term or a prohibited term.
Infringement notices
New powers to issue infringement notices will allow the ACCC and ASIC to deal with alleged breaches of the law without the need for costly legal proceedings. Infringement notices will provide our regulators with the ability to seek small penalties for minor breaches of the law, which a person may pay and avoid legal proceedings.
A person issued with a notice is not obliged to pay the amount specified. But if the person does pay, the regulator cannot take further action for the alleged breach. If the person does not pay the notice cannot be enforced. However, the regulator may pursue the alleged breach in a court.
This will provide cost savings, both to our regulators in pursuing breaches of the law and for those businesses wishing to avoid costly court proceedings in relation to minor breaches of the law. Infringement notices will be able to be issued for alleged breaches of provisions that are subject to civil pecuniary penalties, except those which include a mental element such as accepting payment without intent to supply.
Public warning notices
The last power provided for in this Bill relates to public warning notices. Some call this type of power ‘naming and shaming’. It is commonly used by state and territory offices of fair trading, particularly to deal with ‘fly by night’ operators and ‘phoenix companies’.
Public warning notices are an effective tool to warn the public about actual or likely harm that may result from suspected breaches of the consumer laws, and help prevent consumer detriment.
The power contained in this Bill includes a number of important safeguards around the use of this power – designed to provide reassurance that it will be used in an appropriate and proportionate manner. And, I note that the ACCC and ASIC will not have immunity from defamation actions in relation to the exercise of this power.
Public warning notices will only be able to be issued where the regulator has reasonable grounds to suspect a breach of the Trade Practices Act or the ASIC Act, believes that consumers have suffered or are likely to suffer detriment and is satisfied that it is in the public interest to issue the notice.
These notices will be a powerful tool in combating fast-talking rogues and other operators who often disappear before the law can catch up with them.
Conclusion
This Bill represents the first part of a generational change in Australia’s consumer laws. It introduces reforms designed to make Australia’s markets work better, to improve protection for all consumers and to strip away layers of legislative and regulatory complexity from our laws, saving business time and money and contributing to the delivery of a seamless national economy.
In presenting this Bill, I can also inform the House that the Ministerial Council for Corporations was consulted in relation to the amendments to the laws in the national corporate regulation scheme – namely the amendments to the ASIC Act and the Corporations Act – and has approved them as required under the Corporations Agreement.
The Bill will, as I have described in some detail, implement a national unfair contract terms law for Australia and it will implement much-needed improvements to the enforcement of consumer law at the national level, through the introduction of new powers for the ACCC and ASIC to take more effective and proportionate action.
I have said that this is the first part of this reform process. Early next year, the government will introduce a further Bill which will bring in changes to fully implement an Australian Consumer Law. Then we will, after further cooperative effort by Australia’s governments, achieve our goal of a single consumer law for Australia.
Then, for the first time, all Australian consumers will be able to count on the same protection: wherever they are, whatever they buy, wherever they live.
I commend the Bill.
Debate (on motion by Senator Wong) adjourned.
Ordered that the bills be listed on the Notice Paper as separate orders of the day.
Bill received from the House of Representatives.
I move:
That this bill may proceed without formalities and be now read a first time.
Question agreed to.
Bill read a first time.
I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
The Government has embarked upon an ambitious program to fundamentally transform Australia’s telecommunications industry in the interest of all Australians.
The National Broadband Network (NBN) is the largest nation building investment in Australia’s history.
The establishment of the NBN will fundamentally transform the competitive dynamics of the communications sector in this country. NBN Co will be a wholesale only telecommunications provider with open access arrangements. This represents a nationally significant and long overdue micro-economic reform that will drive future growth, productivity and innovation across all sectors of the economy.
Just as the roads, railways and electricity networks of the 20th century laid the foundations for future human interaction and economic progress, the NBN will transform Australia’s economy into and beyond the 21st century. The well recognised potential of high speed broadband to drive future productivity growth, innovative applications and our future international competitiveness means the NBN is vital to Australia’s long-term economic and social prosperity.
As transformative as the NBN initiative is, it is a detailed and complex project. During the eight year rollout of the NBN, the existing telecommunications regulatory regime remains critical to the delivery of affordable, high quality services to businesses and consumers.
Telecommunications services are a vital input to the daily functioning and activity in modern societies. The reforms being introduced today are required to address long-standing and widespread concerns that the existing telecommunications regulatory regime is failing Australian consumers and businesses. On a range of measures of price, quality of services and availability, Australian continually trails key international competitors.
At the time of the announcement of the National Broadband Network the Government gave a commitment to the people of Australia that we would reform the existing telecommunications regulatory regime to improve this situation.
The response to our request for views on the need for reform was overwhelming. Over 130 submissions were received in response to the National Broadband Network: Regulatory Reform for 21st Century Broadband Discussion Paper that the Australian Government released on 7 April 2009. The submissions supported reform of the existing telecommunications regime to:
The R4212Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009 is designed to re-shape regulation in the telecommunications sector in the interests of consumers, business and the economy more broadly. It is also designed to position the telecommunications industry to make a smooth transition to the NBN environment as the new network is rolled out. The measures will provide the flexibility for Telstra to choose its future path and streamline the regulatory framework to enhance competition and better protect consumers.
I. Vertical & Horizontal Separation
The first element of this reform program will focus on the current structure of the telecommunications sector.
Telstra is one of the most highly integrated telecommunications companies in the world across a range of telecommunications platforms. Telstra owns the only fixed-line copper network that connects almost every house, as well as the largest cable network, half of the largest pay-TV provider and the largest mobile phone network. Partly because of this integration, it has been able to maintain a dominant position in virtually all aspects of the market, despite more than 10 years of open competition. It is the Government’s view that Telstra’s high level of integration has hindered the development of effective competition in the sector, and has contributed to Australia continually lagging behind other developed economies on the availability, price and quality of telecommunications services.
While significant structural reform has occurred in other key infrastructure industries such as electricity, gas and aviation, previous governments of both persuasions have failed to adequately address the underlying structural problems in the Australian telecommunications sector.
The bulk of the current telecommunications regulatory regime was introduced in 1997. Over 10 years later, the Government believes that the failure to address the issue of Telstra’s level of integration has meant that current regulation has failed to promote effective competition.
The measures included in this legislation will finally correct the mistakes of the past when opportunities to undertake structural reform in the telecommunications sector were missed or avoided.
Our commitment to a wholesale only model for the NBN will deliver structural reform in the industry in the longer term. However, the Government considers it vital to ensure that during the transition to the NBN, the existing regulatory regime generates outcomes in the interest of consumers and businesses.
The ambitious reform program set out in this Bill is designed to promote more effective competition in the sector by addressing the underlying incentives Telstra has as a highly integrated company to favour its own retail businesses. The Government therefore proposes in this Bill to require the functional separation of Telstra, unless Telstra voluntarily submits an enforceable undertaking to structurally separate to the ACCC. The Minister will provide guidance to the ACCC on the matters it would need to take into account when considering whether to accept a structural separation undertaking.
Functional separation is a regulatory tool that has been used successfully in other countries such as the UK and New Zealand and is being considered by the European Commission, to address the underlying incentives that fixed-line incumbents have to favour their own retail businesses.
This Bill proposes implementing a functional separation regime by altering the Telecommunications Act 1997 to require that:
The Government’s clear preference is for these structural issues to be addressed on a voluntary basis. That is why the Bill provides that the functional separation requirements will not operate if Telstra volunteers to structurally separate.
The Government retains an open mind on what the best model for structural separation is as we transition to the NBN.
It may, but does not need to, involve the creation of a new company by Telstra and the transfer of its fixed-line assets to that new company.
Alternatively, it may involve Telstra progressively migrating its fixed-line traffic to the NBN over an agreed period of time and under set regulatory arrangements, and for it to sell or cease to use its fixed-line assets on an agreed basis. This approach will ultimately lead to a national outcome where there is a wholesale-only network not controlled by any retail company – in other words, full structural separation in time. Such a negotiated outcome would be consistent with the wholesale-only, open access market structure to be delivered through the National Broadband Network.
The Government has commenced constructive discussions with Telstra on how NBN Co and Telstra could work collaboratively towards the NBN. We believe that we can work towards achieving a solution in the national interest that also meets the interests of Telstra and its shareholders.
In addition to addressing the vertical integration of Telstra, the Government is introducing measures to address Telstra’s horizontal integration.
Telstra’s level of horizontal integration across the different delivery platforms – copper, cable and mobile - is in contrast to many countries where there are restrictions on incumbents from owning both cable and traditional fixed-line telephone networks. Unlike Australia, in a range of countries the fixed-line incumbent does not also own the largest mobile carrier as measured by market share.
The Government intends to correct the unique market structure, in Australia by introducing a set of measures designed to promote competition across the various telecommunications platforms while providing Telstra with the flexibility to choose its future path.
The proposed amendments will prevent Telstra from acquiring specified bands of spectrum, which could be used for advanced wireless broadband services unless it structurally separates, divests its hybrid fibre coaxial cable network and divests its interests in Foxtel. The legislation provides scope for the Minister to remove the requirements around the cable network and Foxtel if he is satisfied that Telstra’s structural separation undertaking is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.
These reforms are not without cost, however international precedents where Governments have made reforms to the underlying market structure indicates that the benefits will outweigh the costs. The proposed reforms are critical to help re-shape the telecommunications market and increase opportunity for innovation and employment growth at all levels in the sector. This will benefit all Australian consumers, businesses, including in rural and regional Australia, and the economy more broadly.
II. Part XIC and XIB of the Trade Practices Act
The second element of this Bill will reform the telecommunications access regime, and the way in which anti-competitive conduct is dealt with by the regulator.
To compete effectively in this industry and provide services to consumers, companies need access to bottleneck services on fair and reasonable terms. Part XIC of the Trade Practices Act 1974 provides a regulated telecommunications access regime to ensure competitors can access these services. However, the operation of this regime has long been problematic. Access seekers have been frustrated by constant delays and disputes. More than 150 access disputes have been lodged with the ACCC in relation to telecommunications, compared to a total of only three disputes across other regulated industries.
In order to correct this clear imbalance, it is necessary to reform the telecommunications access regime to make the process more streamlined and less vulnerable to opportunistic procedural delays. This will provide greater certainty to both access providers and access seekers. Submissions to the recent public consultation process on regulatory reform were strongly in favour of changing the access regime to achieve this outcome.
This Bill will amend Part XIC to require the ACCC to:
Further, to simplify the access regime and deliver greater regulatory certainty, there will be no merits review of regulatory decisions made by the ACCC under Part XIC. The scope for exemptions from access obligations and access undertakings will be reduced.
The Government is also proposing to amend Part XIB of the Trade Practices Act 1974 to ensure the ACCC is able to act quickly on breaches of competition law and prevent unnecessary detriment to the market. To facilitate this, the requirement for the ACCC to consult with a party prior to issuing a competition notice will be removed. Any party that receives a competition notice will continue to have the opportunity to argue its case in court, and a court finding of anti-competitive conduct will still be required before penalties are applied. In addition, the reforms to Part XIB will include clarification that the competition notice regime applies to content services – such as subscription television services – delivered by carriers and carriage service providers.
III. Consumer safeguards
The Government is committed to ensuring that consumers are protected and service standards are maintained at a high level during the transition to the NBN.
Currently, there are a number of consumer safeguards in place to protect consumers.
Submissions to the USO Review, the Regional Telecommunications Independent Review, and the recent consultation paper on regulatory reform, indicate that the existing consumer access arrangements require strengthening.
Voice telephony services are increasingly being delivered using a range of technologies such as fibre optic cable or radiocommunications. It is critical for consumers and the economy that these new delivery modes continue to support reliable and good quality telephone calls.
The introduction of new technologies and changes in the market are challenging the effectiveness and relevance of consumer safeguards. There is evidence over the last several years that standards of service delivery are falling, with compliance reporting increasingly showing that the industry is failing to meet the CSG requirements, preferring to pay customers compensation rather than to meet mandated repair timeframes.
In addition, current USO requirements on Telstra are opaque and imprecise, and need to be revised.
To address these matters the Government is introducing a number of significant changes to strengthen existing consumer safeguards now to better protect consumers’ access to basic voice services as we transition to a new communications environment. The Bill also contains measures to improve the effectiveness of the regulating body, the Australian Communications and Media Authority (known as the ACMA).
The USO will be improved to include a legislated requirement for Telstra to supply on request a basic service at specified standards. This will include connection and repair periods, reliability requirements and performance benchmarks.
Telstra will also be required to provide payphones in accordance with criteria specified by the Government, and for the ACMA to have the power to direct whether payphones can be removed. Mandatory performance benchmarks in relation to the delivery of universal services, backed up with civil penalties, will encourage improved compliance. These measures will provide greater certainty and clarity for both consumers and Telstra.
To arrest the decline in telecommunications service quality standards, minimum performance benchmarks will be put in place for the CSG. These benchmarks will be backed up with civil penalties and infringement notices imposing fines for non-compliance.
New timeframes for connections and repair will apply to Telstra and other wholesale providers to assist retail providers meet their CSG benchmarks. This is intended to reduce the scope for retail providers to blame non-compliance on poor service from the network provider.
However, provisions for exempting services from the CSG will remain in place to avoid stifling innovation and customer choice, but only with the customer’s express agreement. This will make it easier for providers to offer new and low priced services that may better meet the needs of some consumers. Services supplied in fulfilment of the USO will not be exempt from the CSG. A customer’s agreement to waive their CSG rights will not be able to be deemed, for example, through a standard form of agreement under Part 23 of the Telecommunications Act.
To assist people with life threatening illnesses, all providers will be required to either offer a Priority Assistance service to customers or inform them of providers from whom they can purchase such a service. The legislation does not change the existing obligation on Telstra to provide a priority assistance service.
As was announced in March 2009, this legislation will provide the ACMA with the power to issue additional infringement notices. This will enable the ACMA to take strong and swift regulatory action without delay, greatly improving the effectiveness of telecommunications regulation.
In the interests of consumers getting access to twenty first century broadband, the Government is considering future USO arrangements further.
Once the detailed operating arrangements for the NBN have been settled, the Government will consider the broader range of issues associated with the delivery universal access in an NBN environment.
IV Removal of Red Tape
The final element of the package is for the removal of red tape.
The Government is committed to reducing red tape and eliminating regulation where the need for it no longer exists. This is consistent with larger commitments to address impediments to Australia’s long-term productivity growth. The Government has decided that as part of these regulatory reforms it will implement a number of red-tape removal measures.
Measures to implement the annual carrier licence charges exemption for small carriers, the reduced reporting requirements, and the removal of a Telstra licence condition are not included in this Bill. These decisions will be given effect through sub-ordinate legislative instruments under existing legislative powers.
V Conclusion
The wide-ranging package of reforms implemented by this Bill is intended to address the problems we find across the whole Australian telecommunications sector. They represent the most significant reforms to the telecommunications legislative framework since 1997.
They vary in scale from subtle adjustments to dramatic restructuring of the status quo, and implementing them will have a transformative effect on competition and service provision. The task of undertaking difficult, bold but necessary reform in Australia’s long-term national interest is one this Government embraces wholeheartedly.
No one should underestimate the Government’s commitment to its policy objectives in this area. This Bill is the first step, and other legislation can and will be introduced as necessary.
Pursuant to the order of the Senate on 13 May 2009, further consideration of this bill is now adjourned to the next day of sitting after the presentation of documents relating to the National Broadband Network tender process.
Messages from the Governor-General reported informing the Senate of assent to the bills.
Sitting suspended from 6.30 pm to 7.30 pm
At the request of the Chair of the Environment, Communications and the Arts Legislation Committee, Senator McEwen, I present the report of the committee on the provisions of the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
by leave—I am grateful for the leave granted to make a short statement with respect to the report of the Environment, Communications and the Arts Legislation Committee on the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009. I do so having participated in the committee hearings on this bill and because this is quite an unprecedented piece of legislation. This is a bill which in an unprecedented fashion targets one particular Australian company and it targets it with the objective of securing the break-up of that company. This is something that is quite unprecedented, and therefore I feel motivated, despite the conventions that I know exist here, to comment on this report, because I believe—and I think it is important to draw attention to the fact—that the majority report is quite inadequate in its very disappointing attempt to endorse what is a quite radical and unprecedented piece of legislation.
It is our contention that the majority report completely misrepresents the weight of evidence presented to the committee about this quite extraordinary piece of legislation. The numerical majority of submissions made to the committee were clearly opposed to this extraordinary proposal for the forced break-up of the company. This bill is proposing to say to Telstra: ‘You must break up the company if you wish to retain access to mobile spectrum. If you ever again wish to bid for spectrum at auction, you must break up the company in the following ways.’ Most of the submissions to the committee addressed that matter, and most were hostile to that remarkable proposition. The hostility to this bill was quite overwhelming.
I must say that the majority of this committee—frankly, like the government of the day—are treating the ordinary shareholders of Telstra, the company in which there is the widest shareholding in Australia, with complete contempt. The dismissal of the outrage, anger and alarm of what are literally mum and dad shareholders in this company is quite extraordinary and quite arrogant. There is no acknowledgement in the majority report of this committee that Telstra has, as I said, the widest shareholding of any company in Australia. It has in fact 1.4 million individual shareholders. There are many millions more who have an indirect connection to Telstra through their superannuation funds, of course. There are 30,000 employees of this company. There is no acknowledgement of their situation, of the prospects they may face upon the break-up of this company. It is a company with nine million customers. Nowhere is mention made of the potential consequences for them and their telephone services.
The majority of the committee treat the shareholders, the employees and the customers with contempt in what is a bland dismissal of the concerns raised before the committee for the future of the company. Nowhere is there any sign of the Labor Party’s contrition for the way they have completely misled shareholders about their intentions in relation to Telstra. It is quite evident that at no stage prior to the last election, or indeed until September of this year, had Labor given any hint that it would change its policy in favour of breaking up Telstra. Indeed since 1992, when the Labor Party created what is now Telstra, until September of this year—17 years—it has not once been formal Labor Party policy to break up this company. So this is quite unprecedented, and there was no sign to the shareholders or anybody else that the Labor Party would propose such a radical and extraordinary proposition.
Mr Acting Deputy President, I rise on a point of order. This is misleading the Senate. Senator Minchin ran an entire election campaign in 1996 alleging the Labor Party were going to split Telstra. Now he claims that is untrue.
Order! There is no point of order.
Despite that ridiculous interjection, the fact is that the Labor Party said in 1996, ‘Oh no, we’re not going to break up Telstra.’ And what did they say as late as the May budget estimates? ‘Oh no, we have no plans for breaking up Telstra.’ ‘I have never advocated breaking up Telstra,’ said Senator Conroy. At the last election, they went to the people and proclaimed loudly, ‘Sure, we want to keep retail and wholesale distinct—but within the company.’ So there was no hint, no sign, no forewarning of this quite extraordinary proposition which the Labor Party is now advancing. But do we find any sign from Senator Conroy, Mr Rudd, the government as a whole or indeed the majority on this committee of any apology from the Labor Party to all those shareholders? Of course there is no such apology. They continue to treat them with utter contempt.
The committee makes much of the fact that Telstra’s competitors and the ACCC want Telstra broken up. This seems to basis of the Labor policy. It is not based on some really intellectual exercise undertaken by the Labor Party. They said, ‘The competitors want it broken up, and the ACCC wants it broken up, so let’s break it up.’ I mean no offence to the competitors, but what on earth would you expect them to say? Of course, Telstra’s competitors would like the company broken up. It is entirely in their self-interest and I respect and acknowledge that, but the government do not. They just say: ‘Oh well, they must be right. Let’s break up the company, because the competitors want it all broken up.’ What a facile basis for public policy of this kind. As was said, they would say that, wouldn’t they?
As for the ACCC, of course the regulator wants an easier life. As regulators do all over the world, they regulate fully integrated companies and it is not an easy task. The question though is whether it is in the national interest to break it up, or are we going to act simply because the regulator wants an easy life? I put to the Senate that what we are obliged to do is reflect upon the national interest and not the particular interest of competitors or of the regulator.
The majority, I think, in this report failed to notice and failed to note in their report that the government have given no detailed objective analysis of the proposed break-up. All they do is rely on the fact that the competitors have been saying this—and they have been saying this, I think, ever since competition was introduced by our government last century. Of course the competitors have been saying that since then. But where is the objective analysis setting out the benefits and costs of this break-up for the national interest? It does not exist. The majority report of the committee makes no reference to it. The government have made no reference to it. But this is similar to the National Broadband Network, where there is no analysis whatsoever of the costs and benefits of the proposal, as demanded by the Business Council, nor is there in relation to the costs and benefits of the break-up of Australia’s incumbent telecommunications company.
The majority report of the committee also makes no reference whatsoever to the potential consequences for investment in telecommunications of the break-up of Telstra. Again, I think this is a major omission by both the government and the committee. Indeed, paragraph 2.41 of the majority report, in referring to the objectives of telecommunications policy, does not even mention the importance of encouraging investment in the telecommunications industry which must be a profound objective of telecommunications policy. How do we encourage investment in this industry? The majority report of the committee makes no reference to this issue. There is no reference at all to the objective and the consequences for investment in this industry of the break-up of this company nor is there any reference by the majority to the threat to investment in Australia of this quite extraordinary action. Nowhere is there any contemplation of the possibility, as alluded to by so many of the submissions we received, of the issue of sovereign risk in relation to foreign investment in this country, much of which was in Telstra, in fact.
I also draw attention to the fact that the majority baldly assert that those who bought shares in T1, T2 and T3 should have read the prospectus statement about regulatory risk and therefore not be at all surprised that the Labor Party has rolled along and said, ‘We are going to break up the company.’ Silly shareholders for not realising a Labor government may come along and just decide to break up the company! How ridiculous that the shareholders should expect that from a party that have never before advocated structural separation of the company. They did not have it as their policy. This is a broken promise. They have no mandate to do this and it is outrageous for the government to expect that Telstra shareholders, in buying those shares, should have had in the front of their minds that the Labor Party would come along and break its promises, and break up the company.
It is certainly true, I regret to say, that in future no shareholders should trust the Labor Party. Good luck to the government in trying to implement its apparent policy of, at some point, privatising the NBN. Who on earth in Australia is going to buy shares in NBN after what this lot are proposing to do to those who bought shares in good faith in Telstra from their government? This is a very disappointing majority report. It is weak in so many respects. It neglects some of the major issues raised by this most radical, unprecedented and extraordinary attack on a major Australian corporation.
With reference to Senator Milne’s return to order motion of 16 September 2009 for a map of Australian forest cover, I table a statement relating to Australian forest cover.
Consideration resumed.
I move amendment (7) on sheet 5890:
(7) Schedule 1, page 10 (after line 27), after item 32, insert:
32A At the end of section 200F
Add:
Certain exceptions cease to operate
(6) Subsections 200F(2), (3) and (4) cease to have effect 36 months after the commencement of Part 1 of Schedule 1 of the Corporations Amendment (Improving Accountability on Termination Payments) Act 2009, unless their operation is continued or varied by a subsequent Act of Parliament.
Note: Subsections 200F(2), (3) and (4) provide exceptions to the member approval requirement for benefits that do not exceed one year’s base salary.
This amendment inserts a creative sunset provision. This is an unusual sunset provision. I think Senator Conroy is squinting.
I am perplexed.
He is perplexed. I could say something very unkind, but I will not. But I will say that if Senator Conroy listens he will understand that this sunset clause is quite compelling. I would like to thank the Clerk Assistant (Procedure), Richard Pye, who creatively drafted this sunset clause. I note that it is his birthday today. I would like to wish Mr Pye a happy birthday.
This amendment inserts a creative sunset provision which causes certain exceptions to cease after a period of time. Those provisions are the ones that say member approval is not needed if the retirement benefit does not exceed one year’s base pay. If those exceptions ceased to operate, virtually all retirement benefits would require approval. This amendment would require parliament to revisit this legislation in 36 months time, which would give corporations time to test the new legislation and us, as law-makers, time to review its effectiveness in eliminating outrageous golden handshakes.
The minister has said time and time again in the course of this debate, quite fairly, that the Productivity Commission will be handing down its final report in December. I note also that APRA has been looking at this. We need to see how this legislation will work. Fundamentally this legislation is a work in progress, given that the Productivity Commission will be providing a report in the next two months, which I think will cast further light on the issue of executive remuneration and the most effective way of dealing with it.
This sunset clause gives the legislature an opportunity to revisit the legislation within three years. Unlike other sunset clauses where, if the sunset clause comes into operation, there is no legislation in place, here there would be a default provision; it being that shareholder approval would be required for virtually all executive remuneration. In other words, because of the default provision there would be a strong incentive for the government of the day to revisit the legislation, particularly in the context of the way the legislation will operate, the Productivity Commission’s report and the fact that the minister has, quite fairly and rightly, pointed out that this legislation is the first of further steps to deal with the issue of executive remuneration. I urge senators to support this amendment, which I see as strengthening the intent of the bill. It provides a useful mechanism for revisiting the bill within the next three years.
I have listened carefully to what Senator Xenophon has said and I am persuaded that this amendment, which provides a creative sunset clause of 36 months, is worth supporting. The clause provides a very good opportunity to take into account the Productivity Commission’s report, the APRA principles and any further global regulatory changes.
During the debate Senator Conroy alluded to the evolving nature of matters relating to executive remuneration, and to me those circumstances seem a valid reason to revisit the iteration of dealing with executive remuneration that we are adopting in this bill. I think the amendment provides an opportunity to strengthen this legislation and I commend Senator Xenophon and Richard Pye, whose birthday it is today—happy birthday, Richard!—for crafting a reasonable clause that will respond to the various iterations that no doubt will attend further examination of executive remuneration. I want to indicate at the outset the coalition’s support for the sunset clause.
If anything could possibly give you cause to pause on this amendment, Senator Xenophon, it is the fact that the coalition want to support it. They oppose every single measure that is about restraining corporate greed. It is in their DNA. Yet they are attracted to an amendment you moved. It is in their DNA to allow corporate excess and they like your amendment—there should be no more terrifying thought going through your mind at the moment.
The government will oppose this amendment, which is an attempt to kill this bill by stealth. I was perplexed during your contribution because I could not believe that you would intentionally kill the bill, but it is clear from your contribution that that is exactly the purpose of this amendment. It will mean that the gains we make on termination benefits today, reining in corporate greed and excess, giving shareholders a greater say on golden handshakes and ensuring greater accountability, will all be lost in time.
The corporate community will pretend that they will go along with it, if it is just for three years. They will pretend that they are really happy and you will think, ‘That’s fine; we don’t need to do anything,’ and then they will be back. Why would you give them this out? I am truly perplexed, because I actually know your thoughts on these issues. You have spoken eloquently many times in this chamber—
I don’t know about ‘eloquently’.
I am flattering you at the moment, Senator Xenophon. You are correct: you are rarely eloquent. I will take your own interjection. This bill is an important change in its own right, and the opposition—
So why are you so frightened of accountability?
The Liberal Party wanting to crack down on corporate greed is like an oxymoron.
Senator Coonan interjecting—
It is like a wooden stake to a vampire, dealing with greed.
Why don’t you have faith in your own bill?
It is programmed into your DNA. You loathe shareholders; you represent corporate interests—it is in your DNA.
Order!
Sorry. You are awake, Chair! I wasn’t sure. I thought you’d nodded off.
Senator Conroy, it is most inappropriate to reflect upon the chair.
It is just that when I interjected on Senator Minchin I got about three words in before you called me to order.
Please continue.
Thank you. I apologise. I had no intention at all of reflecting upon the chair. The bill is an important change in its own right and it stands in its own right. The opposition will force these tough measures to lapse and will force us to start again if they successfully help Senator Xenophon to get this amendment up. If this amendment passes, the government will consider its position and reconsider the value of the amended bill when it returns to the House. This is an absurd proposition. I do not honestly believe that you truly intend this, Senator Xenophon. That is why I am perplexed. I truly do not understand your thinking.
I thank Senator Brown. I think he might actually have risen before me, but I thank him anyway. That was the most extraordinary intervention from Senator Conroy, who seems to feel that this legislation is so fragile and so lacking in substance that it is not able to withstand the review of a sunset clause in 36 months. That is the most extraordinary proposition from a minister at the table. He feels that a proper review and proper scrutiny of what is obviously a serious piece of legislation is somehow going to bring it to its knees, that it is going to be rendered nugatory by a review and by a sunset clause.
It might just be Senator Conroy’s flourishes, because normally Senator Sherry would take this bill through its stages, but if the government were so concerned that this bill lacks any substance and is unable to withstand the scrutiny in 36 months of a sunset clause they would have put forward a very different set of provisions in the bill. But we have what we have and we are now at the heel of the hunt and the mere prospect of review and scrutiny makes Senator Conroy wobble at the knees. This is an extraordinary turn-up for the books. There is absolutely no reason why a government confident of the rightness of its position and of the robustness of the legislation that it puts forward would not be very prepared to allow the Productivity Commission report to be brought down so that everyone can have a look at that and take it into account and also consider how the APRA principles are going and how the further global regulatory changes play out. These are all relevant matters, and they are all matters that may well require the early revisiting of this legislation so that, once again, we are aligned with what is happening in other jurisdictions and this matter is kept under review.
We think that it should be kept in the public eye and that we should not just wave it through on the basis that it is not looked at again. This will keep everyone with their shoulder to the wheel, making sure that the balance is right in this very important matter. I have certainly heard nothing from Senator Conroy that would dissuade me from thinking that Senator Xenophon’s sunset clause is not only properly put forward but also an appropriate way for this legislation to be kept under review.
It is an interesting proposal for a sunset clause, because it means that the exceptions to the member approval requirements for benefits that do not exceed one year’s base salary will be relegislated or the members get an improved say. I am of a mind to support that, and I think that the House of Representatives ought to have a look at it. That is the way that the two houses work. It is a good suggestion and it has been put forward in good faith. The House should have a robust debate on the matter and I think they will be inclined by dint of common sense to accept it.
On the matters raised by Senator Conroy, it is the intent of this amendment to ensure that the legislation is revisited. That is clear, there is no dispute about that and I do not think that Senator Conroy disagrees with that. We know that the Productivity Commission will be handing down its final report in the next couple of months and, presumably, the government will be taking note of it. Whether it acts on the Productivity Commission’s report remains to be seen, but there will presumably be a number of useful suggestions that could form the basis of further policy development by the government. Further, since we are going into new territory here with executive remuneration, and given the very strong statements by Senator Conroy, the Prime Minister and senior members of the government, it is appropriate that we do revisit this legislation to see how it works and whether it can be made more effective, given the intent of the legislation. If this were a standard sunset clause, which would have meant that the legislation in place disappeared and there would not be any requirements to deal with the safeguards and requirements put in place, then I could see Senator Conroy’s point, but in fact the opposite is being done here. What will occur is that if the exceptions cease to operate then virtually all retirement benefits will require approval. So there is a very powerful incentive for the parliament to revisit this, because what will be left in place is a more onerous regime of accountability than that which is in this bill. That, to me, is the bottom line—that there is protection and we will not be weakening the legislation in any way. I think the opposition’s point, and I am grateful for their support—
You are abolishing it.
I did not hear that, Senator Conroy. I do not know if you want me to respond to that.
Introducing a sunset clause means that you are wiping it out.
The way that the sunset clause is structured is that virtually all retirement benefits will require approval. That is the advice I have received. That appears clearly to be the case. I think Senator Bob Brown is right: we should send this back to the House of Representatives where there can be robust debate about this. I would like to hear from the government what they are planning to do as a consequence of the Productivity Commission’s report and what plans they have to revisit this legislation at any time in the future. This amendment gives a three-year time frame, during which the legislation can be revisited. The fears that Senator Conroy has can be allayed by this parliament revisiting this legislation and dealing with it in that way. The use of this creative sunset clause provides a guarantee that the intent of the legislation will not be watered down in any way whatsoever. I urge honourable senators to support this amendment.
Question put:
That the amendment (Senator Xenophon’s) be agreed to.
I move Greens amendment (7) on sheet 5858 revised:
(7) Schedule 1, page 13 (after line 2), after item 40, insert:
40A At the end of Division 2 in Part 2D.2
Add:
(1) An entity mentioned in subsection (2) must not give a person a benefit in connection with a person (the manager or executive) holding a managerial or executive office unless:
(a) there is member approval under section 200M for a remuneration policy that covers the giving of such a benefit; and
(b) the benefit meets the requirements of that policy.
Note 1: The recipient of the benefit need not be the manager or executive.
Note 2: Managerial or executive office has the meaning given by section 200AA.
(2) The entities are as follows:
(a) the company;
(b) an associate of the company (other than a body corporate that is related to the company and is itself a company);
(c) a prescribed superannuation fund in relation to the company.
(3) In this section:
superannuation fund means a provident, benefit, superannuation or retirement fund.
Remuneration policy
(1) A remuneration policy proposed for member approval under section 200M must:
(a) outline the objectives and structure of executive remuneration arrangements generally; and
(b) outline the objectives and structure of executive remuneration arrangements in relation to the following kinds of benefits:
(i) benefits connected to appointment or engagement of a person, however described;
(ii) annual base salary;
(iii) benefits relating to performance or bonuses, however described;
(iv) superannuation entitlements which exceed statutory requirements;
(v) benefits connected to a person’s retirement;
(vi) benefits of a kind prescribed by the regulations for the purposes of this section; and
(c) address any other matters prescribed by the regulations.
Use of consultants
(2) If, in any financial year, an entity engages the services of consultants of any description in the formulation of:
(a) a remuneration policy; or
(b) remuneration packages under such a policy;
the directors’ report required for that financial year under section 298 must set out:
(c) which consultants were hired and for what purposes; and
(d) how much each of the consultants was paid for their services.
(1) The remuneration policy, and any revision to that policy, must be approved by a resolution passed at a general meeting of:
(a) the company; and
(b) if the company is a subsidiary of a listed domestic corporation—the listed corporation; and
(c) if the company has a holding company that:
(i) is a domestic corporation that is not listed; and
(ii) is not itself a subsidiary of a domestic corporation;
the holding company.
(2) Details of the remuneration policy must be set out in, or accompany, the notice of each meeting that is to consider the policy.
(3) The requirements of this section are in addition to, and not in derogation of, any other law that requires disclosure to be made with respect to giving or receiving a benefit.
(4) Member approval of a remuneration policy under this section does not relieve a director of a body corporate from any duty to the body corporate (whether under section 180, 181, 182, 183 or 184 or otherwise and whether of a fiduciary nature or not) in connection with the giving of any benefit.
(1) If an entity (the giver) contravenes section 200K by giving to a person (the recipient) a benefit that is not covered by a remuneration policy for which there is member approval under section 200M, then the amount of the benefit, or the money value of the benefit if it is not a payment:
(a) is taken to be received by the recipient on trust for the giver; and
(b) must be immediately repaid by the recipient to the giver.
(2) An amount repayable under subsection (1) to the giver:
(a) is a debt due to the giver; and
(b) may be recovered by the giver in a court of competent jurisdiction.
(3) Subsection (1) applies to the whole of the amount of a payment or of the money value of the benefit even though giving the benefit would not have contravened section 200K if that amount or value of the benefit had been less.
Note 1: The heading to Part 2D.2 is altered by omitting “termination payments” and substituting “termination and other payments”.
Note 2: The heading to Division 2 is altered by omitting “termination payments” and substituting “termination and other payments”.
This is so that shareholders are required to approve a binding remuneration policy, and the guidelines are to be set out in regulations. This policy must, firstly, outline the objectives, instructions and executive remuneration arrangements and be used by company boards as guidelines for the development of specific remuneration packages. Secondly, remuneration policy must include issues covering base pay, performance based remuneration and termination pay components, be available for review by shareholders and be available for review by shareholders at each annual general meeting of the corporation. It simply gives the shareholders the ability to structure remuneration policy in a way that they certainly have not been able to before. I might add that the Australian Prudential Regulatory Authority is developing guidelines for the governance of remuneration practices in Australia’s financial institutions, and surely that is good enough for other corporations. That is what this amendment proposes to do.
I indicate that the government will not support this amendment. The Productivity Commission is examining a whole range of matters around these topics and we believe that it would be moving ahead of the commission’s report to go down this path at this stage.
I thank the minister for that, because the Greens are somewhat ahead of the Productivity Commission here. But it is an excellent amendment. It simply gives the shareholders that ability to configure payments in accordance with common sense. The only thing the Productivity Commission will be able to do is come up with something very similar to this because of the logic of empowering shareholders to have a reasonable rein on the people who direct their companies.
Question negatived.
Bill, as amended, agreed to.
Bill reported with an amendment; report adopted.
I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
Debate resumed from 7 September, on motion by Senator Wong:
That these bills be now read a second time.
I rise to speak to the proposed National Consumer Credit Protection Bill 2009, the National Consumer Credit Protection (Fees) Bill 2009 and the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009. At the outset, I confirm that the coalition will support these bills. However, I do have some quite extensive remarks.
This package of bills represent a sizeable reform to the regulation of credit across Australia, with payday lenders, finance companies and mortgage brokers set to become federally licensed entities. The introduction of a federally licensed system in turn means business will need to adjust, and with that adjustment will be frustrations felt by business as a result of the adherence to yet another layer of red tape.
With regard to the implementation of this legislation, the coalition certainly hopes that this government is able to be responsive and listen to the needs of business and industry and not take the arrogant approach which has been demonstrated of late, an example of which we all saw during the budget night changes to employee share schemes earlier this year that virtually brought an industry segment to its knees pending it being revisited.
When looking at the set of bills as a package, there are four key objectives: the creation of national credit laws with licensing arrangements; the introduction of responsible lending provisions—taking effect from 1 January 2010 and 1 January 2011, depending on the type of provider; universal compulsory membership of external dispute resolution, EDR, providers for Australian deposit-taking institutions, ADIs, and non-Australian deposit-taking institutions; and the introduction of a new national consumer credit code protection mechanism which replicates and replaces the state based UCCC.
In terms of public scrutiny, the primary bill was made public in late April this year, and it was clear from this initial process that the first draft of the bill carried very considerable problems. The coalition notes that a number of key changes have taken place since then, including changes to responsible lending requirements, which have been set back for authorised deposit-taking institutions and will not begin operation until 1 January 2011. Point of sale, POS, retailers have been exempted for 12 months, subject to review, and arrangements for credit assistants were simplified, with some duplicate requirements removed.
I will now turn attention to the objectives of the bill, the first of which is the licensing arrangements of the national credit laws. The body overseeing the provision of credit under the new national laws will be the Australian Securities and Investment Commission, ASIC, which will license providers and administer licence requirements from November 2009. As a result of this, there will be a new licensing regime, which will be known as the Australian credit licence. ACL will provide licences to brokers, financiers and credit intermediaries. The lending activities requiring licences from the Australian credit licence will be, largely, credit contracts, credit services, consumer leases, mortgages and guarantees. Holders of a licence from ACL will, in turn, be allowed to lend and collect money under a credit contract and as brokers or intermediaries, or provide assistance with a credit product. It will be compulsory for the licensee to provide credit guides which will disclose all applicable commissions, fees and charges. It is also worth noting that other bodies set to be streamlined into the Australian credit licence process will be current Australian financial service licence holders already licensed to provide credit services under existing legislation.
The coalition has sought assurance from the government that holders of Australian financial service licences will not be subjected to overregulation and that just one of these licences will suffice. We are mindful of the impact the implementation of this system will have on the national marketplace and we are focused on ensuring that the licensing arrangements are not excessive and do not place an excessive demand on business. Such concerns have been raised by the coalition during the entire process of review of the legislation before us. It is also our understanding that the government is looking to exempt companies which provide loans to directors, as they may be caught in this legislation and therefore require a licence. That, of course, will be a very welcome relief for many businesses around the country.
I now move on to the next objective of the bill before us, which relates to responsible lending. In the coalition’s view, this is where a great many potential problems lie, particularly for individuals and businesses. The provisions within the legislation are designed to aid consumers when they make decisions about credit. Within the legislation there are two tests which the loan provider must meet, and definitions within these tests are to be developed by ASIC. The first test is that loan suitability must be individually determined by the provider, and the second test is that the loan recipient’s capacity to repay the loan must also be assessed. The coalition is aware, through liaison with industry, that such procedures are followed currently when loan assessments are made. One of the primary issues of the responsible lending provisions is their workability for credit-reporting purposes. Despite not coming into effect until 2011, it remains unclear as to how, without positive or comprehensive credit reporting, these provisions will operate. This will pose a number of difficulties from both a practical and an operational point of view.
A roundtable consultation on this matter, which began in August last year, is currently being conducted by the Special Minister of State. As the outcome of this review will have a significant impact on the workability of this legislation, the coalition has expressed the view that it aspires to having this legislation expressly considered in this process. In fact, we have called on the government to speed up the process because, without reform in this area, the legislation before us will not work. It certainly will not work as intended and indeed it could be detrimental to consumers and the banking and credit system. It is important to get all of these matters lined up. The coalition has also suggested a further practical measure that the government could consider in order to ease the compliance burden on financial institutions. The start date of 1 January 2011 will prove to be cumbersome, as most financial institutions freeze their systems over the Christmas break in order to withstand the level of increased transactions. A more practical solution to this problem could be the deferral of the start date to 1 March 2011.
I now move on to the third objective of the bill before us, which relates to the universal compulsory membership of EDR, external dispute resolution, providers for Australian deposit-taking institutions and non-Australian deposit-taking institutions, non-ADIs. The legislation proposes a three-tiered dispute resolution system for consumers: through the licensee, through ASIC’s approved scheme and through the court system. Under this legislation, consumers will be able to apply for hardship variations, postponement of enforcement actions, regaining possession of mortgaged goods and actions against unconscionable fees and charges imposed by credit providers for small amounts—that is, for amounts less than $40,000.
Finally, the fourth objective of the bill before us is the introduction of the new National Consumer Credit Code protection mechanism, which essentially replaces the state based Uniform Consumer Credit Code, or UCCC. This is designed to enhance consumer protection through raising hardship thresholds from $330,000, where they are at currently, to $500,000. Amongst other settings, it also prohibits the use of essential household goods as security for loans. Overall the objectives of the bill before us here today in the Senate are, we think, sound and worthy of support, despite our misgivings about some matters that I have highlighted. The coalition support the national system of licensing credit, and we do think it is particularly worth while from a consumer protection point of view. Whilst the responsible lending provisions are well intentioned, it remains to be seen how the government will manage this process leading up to the start dates in 2010 and 2011.
The coalition recognise the size of the reforms which we have under consideration here today and the compliance burden that these impose on Australian businesses—which in turn means that the government must be responsive to the needs of industry. We certainly urge that most strongly on the part of the government. The coalition understand that the government will be moving some technical and timing measures amendments in the committee stage, which, in the form we have been advised of, the coalition would be disposed to agree to.
Finally, I want to express the coalition’s fervent hope that the government, ASIC and Treasury will make themselves available to those businesses which need assistance in implementing this legislation. We do think there will be some significant teething problems and it will be necessary for business to have recourse to the government and various officials in Treasury to clarify that the provisions are operating in the way they were intended to and that they do, as developed, give effect to what are some very technical provisions. With those comments, I commend the bills to the Senate.
The Greens support and welcome the National Consumer Credit Protection Bill 2009, the National Consumer Credit Protection (Fees) Bill 2009 and the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009. The global financial crisis has shown us the danger of uncontrolled and over-exuberant credit provisions. Before the crisis, increasing amounts of credit were sold by banks, non-bank lenders, credit cards, in-store retail credit providers and the so-called fringe lenders such as pay-day loan providers, as Senator Coonan was pointing out. Data from the Reserve Bank of Australia indicates that we have become a nation of debtors and there has been a massive increase in debt over the last nine years. Mortgages have increased from around $200 billion in 2000 to just over $1 trillion of debt today. Personal debt has almost doubled, from around $70 billion to just over $134 billion today, including about $35 billion in credit card debt.
A well-functioning credit market is a useful and necessary tool for our communities to thrive and develop. For example, it gives access to funds to allow people to purchase their own homes. But credit should not become an unmanageable burden, particularly when the debt is the result of aggressively marketed credit that is sold to vulnerable or misinformed consumers. There is a large and growing number of examples of where credit providers have used increasingly exploitative behaviour to push credit contracts. Of course one only has to watch commercial television at night to see how widespread and how compelling this behaviour is. It is also the case that where people fall into misfortune or experience hardship, such as unexpectedly losing their jobs or becoming ill, credit can turn from being a manageable part of their day-to-day personal finances into an insurmountable and life-ruining burden.
While the decision to enter into debt is a personal one, the government has a role in ensuring that consumers are well informed about credit products and are not exploited by unscrupulous credit providers or brokers—and that, if hardship occurs, processes are in place to manage the situation in a constructive way for both the consumer and the credit provider. Of course I am not entering here into a much-needed debate about the push for consumerism itself.
The National Consumer Credit Protection Bill 2009 is long-overdue reform to develop a national standard for the conduct of the credit industry. It is a strong foundation for a good regime. We recognise that this is part of an ongoing process of credit reform and that the government plans a second round in 2010. The Greens believe the government should strengthen the bill to provide greater protection for consumers now, particularly those experiencing or at risk of experiencing financial hardship. In that regard this bill could be strengthened in three ways. The first way is by ensuring that credit sold in conjunction with retail items in department and other retail stores is covered by the terms of the code. The government has provided a 12-month exclusion for credit that is sold in conjunction with retail sales of cars, domestic household items and store credit cards. The retail industry argued that sales assistance work is clerical in nature and it is unreasonable to expect sales staff to have the same training requirements and legal responsibilities as professional credit intermediaries such as brokers—if you do not mind! So no training requirement or cost will be entered into there by some of the big chains.
However, during the Senate inquiry into these bills, it was pointed out that the so-called point of credit provision is now offered in roughly 20,000 retail outlets. Up to 50 per cent of sales in the household white goods and department store sector is reliant on this concurrent sale of credit. In fact industry sources recognise that many retailers are reliant for their survival on the sale of this credit. Might I add there that I find it quite appalling the way in which big chains push on people who do not have an ability to consider the long term as much as the short term the provision of apparently no-credit purchasing for one, two or three years. Of course the big whammy comes down the line when they not only have to pay the money back but have to pay interest at exorbitant rates. My view is that that practice should not be allowed, and this legislation comes nowhere near to preventing that sort of pushing of debt onto householders in Australia—in particular, householders who cannot discriminate between their ability to pay in the short term and their continuing inability, and sometimes even greater inability, to pay two or three years down the line.
A second way in which the bill should be strengthened is through better hardship provisions. Orderly and transparent processes to deal with situations of financial hardship are a critical component of helping people to help or in some cases save themselves. Hardship provisions help people avoid declaring bankruptcy and the negative consequences of that for both the debtor and the creditor. The increase in thresholds for consumers to access hardship provisions, from a limit of $315,000 to half a million dollars, is a positive reform for consumers, but we are concerned that the new threshold will not apply to existing credit contracts. That leaves a substantial portion of people currently in financial mortgage distress without recourse to hardship remedies.
For example, a recent study by debt collection and credit reporting agency Dun and Bradstreet found that 33 per cent of postcodes had fallen into the high-risk category of financial distress, and that was up 30 per cent on October last year. On 30 August the Sunday Telegraph reported that various banks had extended hardship assistance to over 55,000 borrowers, with 31,000 applications having been received since February this year. The Consumer Credit Legal Centre and Legal Aid in New South Wales have reported that they have commenced a duty roster at the Supreme Court of New South Wales in response to a request from the court because of the record number of home repossession applications being made to that court.
We acknowledge that the government will seek to make amendments to this bill, but we believe these are not adequate because they effectively retain the two-tiered system that was the problem with the original bill—a hardship system for mortgages entered into before the passage of this bill and a system for those mortgages which will be agreed later.
Thirdly, we recommend that there be improved access to financial legal advice. We welcome the development of a comprehensive remedies and sanctions regime under this bill. Improvements to consumer credit protection will mean little if consumers are not empowered to enforce those rights and credit licensees are not held accountable for their actions. In particular, we welcome the concerted effort within the code to ensure that consumers have access to low-cost forms of remedies such as external dispute resolution mechanisms which can help avoid recourse to the costly and time-consuming court system. But the code remains silent on the issue of support for tailored, individual legal advice for consumers who are seeking redress for breaches. That is particularly the case for consumers experiencing financial hardship and who are often vulnerable for other reasons such as unexpected illness.
The government has moved to provide additional funding for financial counsellors over the past year, and we welcome that. However, additional assistance has not been forthcoming to support legal assistance with financial issues. Evidence from the community legal sector, such as from the National Association of Community Legal Centres, has indicated that there is a large unmet need for the provision of legal assistance, particularly in relation to credit advice.
To sum up, the Greens welcome these long-overdue reforms from the Rudd government and we look forward to the implementation of the National Credit Code, which will lead to credit consumers being better informed about their choices and to an end to at least some of the exploitative practices we have seen in the past. We believe that the bill could be further strengthened in the best interests of the consumer and credit industry. We look forward to the further promised legislation from the government in coming months and we will have added input and, if necessary, amendments at that time.
The National Consumer Credit Protection Bill 2009 and the related bills will provide a single, standard and uniform regime for consumer credit regulation and oversight. They will replace the current state based consumer credit arrangements, and I believe that will reduce duplication, red tape and compliance costs while increasing consumer protection against irresponsible lending practices and also improve access to timely and affordable dispute resolution processes. The current state laws are roughly aligned but are inconsistent enough to cause compliance problems, particularly for companies that have national operations. Therefore, I think that this will streamline the processes for most companies after the initial introduction period and will reduce the amount of paperwork and red tape that most companies currently encounter.
I am the Chair of the Senate Economics Legislation Committee, which inquired into these bills, and we had a very high standard of submission to this inquiry from businesses and from consumer groups. There was quite some discussion, which Senator Bob Brown has referred to, about the point-of-sale retailers and their involvement in this process. But stores where retail employees are involved with the provision of credit are a small proportion of those retailers that provide credit in store. In fact, what happens in most cases, we were told, is that the sales assistant refers the customer to a credit provider who works in store and the employees of that credit provider will be subject to the provisions of these bills. So in my view there was no harm in having a 12-month delay to assess in what way retail employees were involved in the process so as to give the best protection for consumers while not burdening retailers and retail employees with unnecessary regulation and training. So I commend the government for allowing 12 months for further consultation on this.
The responsible lending requirements were also considerably canvassed. It is very important that people are not pushed to take up credit that they have no hope of repaying. There are a number of unscrupulous credit providers who, for their own reasons, will push credit on people who do not have the means to repay it; they might be in debt on their credit card or in debt to a number of other people. It is critically important to consumers that they get good information and that they are properly assessed for the loan which the provider is recommending to them. I do not think there was any disagreement about that or about the need for proper consumer protection. There are a number of ways in which that is done in this bill.
I will not go through the bill—others have already done that—but I will talk a bit about the major recommendations of the Senate Economics Legislation Committee. The committee acknowledged concerns about the timing of the implementation of the reforms, which were originally targeted for January 2010. We were concerned that this left many small lenders, and possibly some state governments, inadequate time to transition to the new arrangement. The committee therefore recommended a deferral to 1 July 2010 to allow sufficient time for industry to prepare and to ensure that state parliaments could facilitate the necessary referrals. However, the committee strongly noted that the responsible lending provisions outlined in the bills should still operate from their planned start date of 1 January 2011 and not be delayed. This will enable improved consumer protection as quickly as possible.
There was also a recommendation about the exemption of current holders of Australian financial services licences from meeting many of the standards required under the Australian credit licence, which is set up under this bill. That was simply because those AFSLs cover much of the same ground.
There was also a recommendation to amend clause 128 of the National Consumer Credit Protection Bill so that, where the contract involves a mortgage over a residential property, the credit provider should only be required to reassess the suitability of the credit contract if an assessment has not been undertaken within 90 days of the contract being written and if the credit provider has reason to believe that the situation of the consumer has changed such that the credit contract may no longer be suitable. This was to address the situation in which someone applies for a mortgage and then, for whatever reason, it takes longer than the 90 days. We did not want the consumer to have to pay for another assessment.
Linked to this was a broker assessment. Clause 130(3) of the main bill stated that, if a preliminary assessment had been made by a credit assistant, such as a mortgage broker, in the preceding 90 days and the credit contract was found not to be suitable, the credit provider was not required to verify the consumer’s financial situation. We had very strong evidence from consumer groups that having that broker intermediary might provide an excuse for the credit provider not to do a proper assessment and tie up any remedy in the courts, so we recommended that that clause be removed.
There were other recommendations about remedy for loss and that there be no loss of access to the small claims court. Also, the committee noted concerns that, despite improving access to hardship applications for consumers, lenders were not required to state a reason for the rejection of applications under the current legislation. The committee recommended that the lender be required to notify, in writing, the reasons for the rejection of the hardship application, on the grounds that this would assist the borrower to know where they might go next time or what steps they might take, particularly if they wished to seek redress through the court system.
The government accepted those recommendations and we commend the government for addressing those concerns. The package is now, I think, a historic reform that will simplify and clarify consumer credit regulation into a uniform national regime, while also strengthening protections for consumers to prevent irresponsible lending practices and implementing tough sanctions on predatory lenders.
This is a complex and detailed reform, and I commend the government on undertaking a lengthy and thorough consultation process and for its phased approach to implementation. I thank the other committee members, the committee secretariat and all the submitters for their assistance in this process.
My comments to the Senate about the National Consumer Credit Protection Bill 2009 and associated bills are informed by the recent inquiry which the Senate Economics Legislation Committee held into the consumer credit reforms package. Basically, coalition senators believe that the reforms have merit. The heart of the package is a national scheme for the regulation of credit. That is obviously something which will be of assistance to people around the country and it is based on a decision of COAG to set up such a national system. However, I would have to say that the government’s handling of the implementation of the package has left a lot to be desired. There were several delays before it was actually introduced and that made it very difficult for credit providers to meet the deadlines which were imposed.
The main provisions are a national scheme for licensing of credit providers, and obligations for responsible lending practices in relation to the suitability of credit for a particular applicant and the capacity of a potential customer to repay the credit sought. These are worthwhile objectives, and so too is the requirement under the legislation that holders of the new Australian credit licence must provide a dispute resolution mechanism so that aggrieved customers have somewhere to take any complaints they may have.
The government’s vacillation over start dates is something we commented on in the report made by the committee. The exposure draft of the consumer credit package was released in April 2009, and during the consultation period the government announced a delay to the commencement of different requirements, followed by then bringing the commencement date forward—when the government understood that the states and territories were exiting the space and that there would be no coverage. Following the release of the economics committee’s report, another deferral was announced by Minister Bowen, ostensibly to give more time to credit providers but in reality to cover the poor planning and the difficult position in which they had left the regulator, the Australian Securities and Investments Commission, in its need to gear up for these changes.
The economics committee heard from an organisation representing the interests of small to micro credit providers and their concern that this legislation, which includes the requirement to pay a licensing fee and have a dispute resolution procedure in place, could drive some of their members out of the credit business altogether. I personally am concerned that the Rudd government’s mismanaging of the implementation of the consumer credit reforms may cause problems for smaller credit providers who had already recognised that they would have difficulty meeting the financial or compliance burdens of the new credit legislation.
In moving to a national licensing scheme, the government is moving into an arena previously occupied by the states. If the states’ existing schemes were simply to continue, there would be an additional compliance burden without any gains from harmonisation. So it has been important that the government work through this aspect of the credit reform package and deliver best practice licensing for credit providers. There is a capacity in the regulations for the streamlining of approvals of existing licensing regimes, such as the industry recognised rigour of the Western Australian scheme, and to streamline approvals for approved deposit-taking institutions, and presumably to address the duplication with the Australian financial services licence. But these groups have been left in the dark too long about how they will be treated under the consumer credit reforms.
Many stakeholders would view the government’s consultation on the credit reforms as having been severely deficient and involving many problems. ASIC is the regulator for these reforms, charged with providing assistance to credit providers in gaining an understanding of, and complying with, the new credit provider obligations to hold a licence and to comply with the responsible lending obligations as they relate to disclosure requirements, the suitability of credit for a particular applicant and other provisions. But there is no guidance material set up yet on the ASIC website to assist credit providers, just a note that for the most part the guidance material will be published after the bill has been passed and the regulations made. There is no excuse for this information vacuum. Surely there is a capacity now for the regulatory guide on the general conduct obligations of credit licensees or the revised regulatory guide on dispute resolution to be provided.
The Senate Economics Legislation Committee heard evidence from the banks and ADIs that they faced significant information technology hurdles, through their processes and documentation, in rolling out this legislation. Non-ADIs to the level of small providers need time to prepare their record keeping and other processes to comply with these reforms in an orderly manner.
That is really all I would like to say, except of course that in the case of companies like David Jones there was certainly some concern as to whether or not staff would be caught by the legislation as point-of-sale assistants in the credit provision process. Coalition senators drew attention to this aspect of the legislation in our comments on the inquiry into the package, and I hope that that particular concern is going to be addressed in the near future.
Tonight I rise to speak on the National Consumer Credit Protection Bill 2009 and related bills. This bill is the first phase in the Rudd government’s reforms to create a new uniform national regulatory framework for credit and credit related services. In these troubled economic times, it is vital that Australia has a well-regulated credit market. These reforms will enhance the stability of our financial sector by bolstering confidence in the integrity of the Australian credit market. They will also ensure that Australians are protected from unscrupulous lending practices and will enable more Australians to get help when they struggle to meet credit repayments. The bill will enact a new and enhanced national credit code. It will impose responsible lending obligations on Australian consumer credit providers. It will introduce a rigorous tiered sanctions regime to discourage misconduct by credit providers. It will provide a new tiered dispute resolution system for consumer credit issues, and it will establish a national licensing regime for credit providers.
Future reforms in this area include credit limit extensions, reverse mortgages and small business and investment loans that are going to form phase 2 of this package. Consumer protection, importantly, will be enhanced in the new code. For example, it will substantially increase the threshold under which consumers can access hardship provisions. Access to hardship provisions is of particular importance to working families in these difficult economic times. They allow consumers to request changes to their credit contracts or a postponement of enforcement proceedings based on financial hardship if their loan is under a specified threshold. Under the new code this threshold will be substantially increased to $500,000. The government recognises that the current threshold is simply too low. Given the average metropolitan mortgage and credit debts, the existing threshold effectively excludes many homeowners in capital cities where property prices are high. The high threshold is critical to ensure that ordinary Australian families do not miss out on financial relief when they need it most. Better access to hardship provisions can help families to keep their homes in these times of economic uncertainty.
The new threshold has been welcomed by consumer advocacy groups because it will cover a larger proportion of people on average incomes. The changes will ease the pain of households hit by the current economic downturn. It will enable households to legally request changes to the terms of credit contracts, including those governing credit cards, car loans, in-store credit cards and mortgages. The relief requested may take the form of an extension in the loan period that reduces regular repayments, a repayment holiday or a postponement of enforcement proceedings. Importantly, if a credit provider refuses a request for relief the consumer can seek further assistance from the Financial Ombudsman Service. These dispute resolution procedures are available at no cost to the consumer. These new laws will provide an avenue of relief for those who lose their jobs through no fault of their own, as well as those who face financial difficulties due to sickness or other unforeseen circumstances.
The bill will also establish for the first time a comprehensive national licensing regime for people engaging in credit activities. To date, licensing arrangements have varied markedly between states and territories. Some jurisdictions have not required all providers to be registered and in many instances registration has been little more than a formality. In contrast, my home state of Western Australia already has a rigorous licensing regime in place, involving the proper assessment of applicants and regular audits to ensure compliance. The effectiveness of the Western Australian licensing regime was acknowledged by the National Financial Services Federation at the hearings of the Senate Standing Committee on Economics on this bill. I am pleased that the Rudd government has recognised that credit brokers who hold an A or B class licence in WA already satisfy the requirements for entry into the new national system and has provided a streamlined application process for these WA brokers.
Australia has weathered the recent global financial crisis remarkably well. Effective regulation of our financial sector has contributed to this favourable outcome, but we cannot afford to be complacent. Consumer advocates have long argued that the existing systems of credit regulation are insufficient, and they should be commended for their cogent and consistent advocacy of reform in this area. The recent crisis reminds us of the need to heed their warnings. We need to be ever vigilant in this regard. We must continue to set the world’s best practice standards in the regulation of credit markets and this is exactly what this bill is designed to do. We must also continue to protect consumers from unscrupulous lending practices. And we must ensure that ordinary Australians have legally sanctioned avenues that enable them to seek relief when they struggle to meet repayments, especially in difficult economic times. Whether it is bank fees, credit practices, unfair contracts, product labelling, unit pricing or any of the other consumer protection measures that this government has pursued, we know how critical it is for ordinary Australians that we set best practice standards in these areas of law.
People often take their rights for granted and assume that things will always work out as they should. They do not expect to be treated badly. It is only when something goes wrong that we realise how important these areas of law are. The unscrupulous few can make life difficult for the majority of both consumers and businesses who do the right thing as a matter of course. Keeping standards high benefits all those who want a fair go for both consumers and businesses. It makes sure our consumer markets are both stable and competitive and it ensures that those who are treated unfairly have ready access to avenues of redress. As this bill and other bills that have come into this place demonstrate, the Rudd government is 100 per cent committed to defending the interests of consumers and reputable businesses. I commend the bill to the Senate.
I thank all those who have made contributions to this debate. The National Consumer Credit Protection Bill 2009 and related bills give effect to the historic agreement made by the Council of Australian Governments in October 2008 for the Australian government to take over responsibility for the regulation of consumer credit. The related bills are the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009, which sets out the transitional and consequential arrangements to support the transfer of the regulation of credit from the states and territories to the Commonwealth, and the National Consumer Credit Protection (Fees) Bill 2009, which enables the imposition of fees, as taxes, for activities covered by the credit bill and the transitional bill.
These bills together will provide a better framework for consumer credit in Australia. The bills are part of COAG’s vision for a seamless economy. This package will provide the foundation for the first single, standard and nationally consistent regime for consumer credit regulation and oversight in this country. The bills introduce a national licensing regime for people engaging in credit activities, and the first comprehensive responsible lending conduct requirements—replacing the state based uniform consumer credit code, which operates inconsistently across the eight jurisdictions—will reduce red tape, duplication and compliance costs for businesses. I note that the bills rely, in part, on the anticipated referral of legislation from the states. As I said, I thank all of those who have participated in this debate.
Question agreed to.
Bills read a second time.
Bills—by leave—taken together and as a whole.
I table four supplementary explanatory memoranda, relating to government amendments to be moved to the National Consumer Credit Protection Bill 2009 and to the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009. The memoranda were circulated in the chamber on 17 September and 26 October 2009.
The National Consumer Credit Protection Bill 2009 and related bills, as I have said, will deliver on the Council of Australian Governments agreement that the Australian government assume responsibility for the regulation of consumer credit. This package of reforms will create a single, nationally consistent regime for consumer credit regulation. New measures in the package include the establishment of a national licensing regime for people engaging in credit activities, and comprehensive responsible lending conduct requirements. I will shortly move a number of amendments to the bills, to incorporate recommendations arising from the Senate Economics Legislation Committee’s inquiry into the National Consumer Credit Protection Bill 2009 and related bills and make other enhancements to ensure the efficient delivery of these reforms. The Senate Economics Legislation Committee handed down a report on the inquiry into these bills on 7 September 2009. The report included 12 recommendations, of which a number are reflected in the amendments the government will move.
The first recommendation, I am pleased to say, was that the credit bills be passed, subject to the committee’s recommendations. The government will also move amendments that directly address the recommendations of the committee. In particular, the committee recommended that the implementation of the reforms, due to begin on 1 January 2010, be deferred to 1 July 2010. The government supports the deferral, as it will give the industry more time to make the changes they need to move to the new regime.
In addition, changes responding to the committee’s recommendations include: the removal of subclause 133 from the credit bill, so that credit providers will have to verify information provided in a preliminary assessment; amendments to clarify that consumers have access to remedies without there needing to be a formal finding by a court in relation to civil penalty; and amendments to require lenders to provide consumers with reasons for rejecting applications for hardship variations and stays of enforcement. The amendments also clarify provisions in the bills so that the regime operates effectively and addresses issues raised by stakeholders after the introduction. These amendments include: modifying the definition of ‘residential property’ so that it excludes properties which are not predominantly used for residential purposes; clarifying that certain ASIC decisions, particularly regarding enforcement action, are excluded from Administrative Appeals Tribunal review, enabling ASIC to issue certain documents in a form prescribed by the regulations; clarifying that ASIC may exempt a person and all their credit representatives in a single determination; increasing flexibility for ASIC to grant exemptions to some parts of the National Credit Code or subject to conditions; allowing for the transfer of information, documents, assets or liabilities from a state or territory to ASIC prior to the commencement of the National Credit Code; redrafting provisions regarding binding the Crown under the code and removing a number of errors.
These changes support and enhance the new national consumer credit regulatory framework. On behalf of the government, I thank the committee for its work on the bills. I have tabled supplementary explanatory memoranda relating to the amendments of the National Consumer Credit Protection Bill 2009 and the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009 which explain the amendments in more detail. I seek leave to move government amendments (1) to (56) to the National Consumer Credit Protection Bill 2009 together.
Leave granted.
I move:
(1) Clause 5, page 9 (after line 11), after the definition of initial National Credit Act, insert:
initial National Credit Code: see subsection 20(2).
(2) Clause 5, page 12 (after line 4), after the definition of record, insert:
referred credit matter: see subsection 20(1).
(3) Clause 5, page 12 (line 5), omit the definition of referred credit matters.
(4) Clause 6, page 16 (table item 1), omit “for or”.
(5) Clause 6, page 16 (table item 3), omit “for or”.
(6) Clause 6, page 16 (table item 4), omit “for or”.
(7) Clause 6, page 17 (table item 5), omit “for or”.
(8) Clause 8, page 18 (line 11), omit “for or”.
(9) Clause 9, page 18 (line 26), omit “for or”.
(10) Clause 19, page 27 (line 8), omit “making laws”, substitute “the making of laws”.
(11) Clause 19, page 27 (lines 11 to 16), omit subclause (4), substitute:
Reference covering amendments of this Act or the Transitional Act
(4) This subsection covers the referred credit matters (see section 20) to the extent of the making of laws with respect to those matters by making express amendments of this Act or the Transitional Act.
(12) Clause 19, page 28 (lines 6 to 14), omit the definition of express amendment, substitute:
express amendment of this Act or the Transitional Act means the direct amendment of the text of this Act or the Transitional Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the Transitional Act.
(13) Clause 19, page 28 (line 23), omit the definition of Trade Practices Act.
(14) Clause 20, page 28 (line 24) to page 32 (line 3), omit the clause, substitute:
(1) Referred credit matter means a matter relating to either of the following:
(a) credit, being credit the provision of which would be covered by the expression “provision of credit to which this Code applies” in the initial National Credit Code;
(b) consumer leases, being consumer leases each of which would be covered by the expression “consumer lease to which Part 11 applies” in the initial National Credit Code.
(2) Initial National Credit Code means Schedule 1 to the initial National Credit Act.
(15) Clause 22, page 33 (lines 9 to 13), omit the clause, substitute:
(1) This Act (other than the National Credit Code) and the Transitional Act do not bind the Crown in any of its capacities.
(2) Despite subsection (1), the regulations may provide that this Act (other than the National Credit Code) and the Transitional Act, or specified provisions of this Act (other than the National Credit Code) or the Transitional Act, bind either or both of the following in circumstances (if any) prescribed by the regulations:
(a) the Crown in right of the Commonwealth;
(b) the Crown in all of its other capacities.
(3) The National Credit Code binds the Crown in each of its capacities.
(4) This Act and the Transitional Act do not make the Crown liable to be prosecuted for an offence or to any pecuniary penalty.
(16) Heading to subclause 29(3), page 40 (line 19), omit the heading, substitute:
Defences
(17) Clause 29, page 41 (after line 5), at the end of the clause, add:
(4) For the purposes of subsections (1) and (2), it is a defence if:
(a) the person engages in the credit activity on behalf of another person (the principal); and
(b) the person is a representative of the principal; and
(c) the person’s conduct in engaging in the credit activity is within the authority of the principal; and
(d) the principal is exempted from subsections (1) and (2) under paragraph 109(1)(a), 109(3)(a) or 110(a).
Note: For the purposes of subsection (2), a defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(18) Clause 36, page 47 (line 4), omit “January”, substitute “July”.
(19) Clause 54, page 64 (line 8), omit “ceases to engage in credit activities”, substitute “does not engage, or ceases to engage, in credit activities”.
(20) Clause 97, page 97 (line 8), omit “for or”.
(21) Clause 99, page 98 (line 4), omit “for or”.
(22) Clause 109, page 107 (lines 12 and 13), omit paragraph (1)(a), substitute:
(a) exempt:
(i) a person; or
(ii) a person and all of the person’s credit representatives;
from all or specified provisions to which this Part applies; or
(23) Clause 130, page 134 (lines 15 to 28), omit subclause (3).
(24) Clause 153, page 164 (lines 11 to 22), omit subclause (3).
(25) Clause 163, page 178 (lines 11 and 12), omit paragraph (1)(a), substitute:
(a) exempt:
(i) a person; or
(ii) a person and all of the person’s credit representatives;
from all or specified provisions to which this Part applies; or
(26) Clause 178, page 188 (after line 34), at the end of subclause (1), add:
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 166.
(27) Clause 179, page 189 (after line 30), at the end of subclause (1), add:
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 166.
(28) Clause 180, page 191 (after line 21), at the end of subclause (1), add:
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 166.
(29) Clause 253, page 249 (lines 6 and 7), omit “in the approved form given to the person”, substitute “given to the person in the form prescribed by the regulations”.
(30) Clause 274, page 264 (line 28), omit “section 63”, substitute “section 290”.
(31) Clause 274, page 264 (line 29), omit “subsection 63(3)”, substitute “subsection 290(2)”.
(32) Clause 284, page 270 (lines 6 and 7), omit “in the approved form given to a person”, substitute “given to a person in the form prescribed by the regulations”.
(33) Clause 327, page 301 (lines 8 to 10), omit paragraphs (1)(a) and (b), substitute:
(a) a decision of ASIC under subsection 109(3) (which deals with certain exemptions from, and modifications of, Chapter 2); or
(b) a decision of ASIC under subsection 163(3) (which deals with certain exemptions from, and modifications of, Chapter 3); or
(c) a decision of ASIC under section 241 (which deals with approved codes of conduct); or
(d) a decision of ASIC under Chapter 6 (which deals with compliance and enforcement), except for a decision of ASIC:
(i) to make an order under subsection 300(1) (which deals with orders relating to credit contracts, mortgages, guarantees or consumer leases); or
(ii) to make, or refuse to make, an order under subsection 301(1) (which deals with orders varying or revoking orders made under section 300); or
(e) a decision of ASIC to make a determination under subsection 328(3) (which deals with determinations in relation to notice of reviewable decisions etc.); or
(f) a decision of ASIC under subsection 6(17) of the National Credit Code (which deals with the exclusion of provisions of credit from the application of the National Credit Code); or
(g) a decision of ASIC under subsection 171(6) of the National Credit Code (which deals with the exclusion of consumer leases from the application of the National Credit Code); or
(h) a decision of ASIC under subsection 203A(3) of the National Credit Code (which deals with certain exemptions from the National Credit Code); or
(i) a decision of ASIC under the regulations, unless the regulations specify that an application may be made to the Administrative Appeals Tribunal for review of the decision.
(34) Schedule 1, page 312 (lines 9 and 10), omit “all or any provisions of”.
(35) Schedule 1, page 312 (line 17), omit “all or any provisions of”.
(36) Schedule 1, page 312 (line 26), omit “all or any provisions of”.
(37) Schedule 1, page 313 (after line 2), insert:
Definitions
(38) Schedule 1, page 331 (after line 9), at the end of Division 2, add:
The regulations may provide that section 25 or 26 applies in relation to a provision of credit covered by subparagraph 5(1)(b)(ii) or (iii) as if specified provisions were omitted, modified or varied as specified in the regulations.
(39) Schedule 1, page 333 (after line 31), at the end of Division 3, add:
The regulations may provide that this Division applies in relation to a provision of credit covered by subparagraph 5(1)(b)(ii) or (iii) as if specified provisions were omitted, modified or varied as specified in the regulations.
(40) Schedule 1, page 365 (line 3), omit “.”, substitute “; and”.
(41) Schedule 1, page 365 (after line 3), at the end of paragraph (3)(b), add:
(iii) the reasons for not agreeing to the change.
(42) Schedule 1, page 386 (line 19), omit “.”, substitute “; and”.
(43) Schedule 1, page 386 (after line 19), at the end of paragraph (2)(b), add:
(iii) the reasons for not agreeing to negotiate.
(44) Schedule 1, page 398 (lines 1 and 2), omit the heading to Part 6, substitute:
(45) Schedule 1, page 398 (lines 3 and 4), omit the heading to Division 1, substitute:
(46) Schedule 1, page 399 (lines 15 and 16), omit the heading to clause 113, substitute:
(47) Schedule 1, page 405 (line 1), omit the heading to Division 2, substitute:
(48) Schedule 1, page 438 (lines 20 and 21), omit “all or any provisions of”.
(49) Schedule 1, page 438 (line 24), omit “all or any provisions of”.
(50) Schedule 1, page 438 (line 28), omit “all or any provisions of”.
(51) Schedule 1, page 459 (after line 29), at the end of Part 12, add:
Exemptions
(1) ASIC may exempt a person, contract, mortgage, guarantee or consumer lease from all or specified provisions of this Code.
(2) An exemption under subsection (1) is not a legislative instrument.
(3) ASIC may, by legislative instrument, exempt a class of persons, contracts, mortgages, guarantees or consumer leases from all or specified provisions of this Code.
Conditions on exemptions
(4) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The court may order the person to comply with the condition in a specified way. Only ASIC may apply to the court for the order.
Publication of exemptions under subsection (1)
(5) An exemption under subsection (1) must be in writing and ASIC must publish notice of it on its website.
The regulations may:
(a) exempt a person, contract, mortgage, guarantee or consumer lease from all or specified provisions of this Code; or
(b) exempt a class of persons, contracts, mortgages, guarantees or consumer leases from all or specified provisions of this Code.
(52) Schedule 1, page 466 (line 26), after “affixed”, insert “predominantly”.
(53) Schedule 1, page 466 (line 28), after “affixed”, insert “predominantly”.
(54) Schedule 1, page 466 (line 34), after “affixed”, insert “predominantly”.
(55) Schedule 1, page 467 (line 6), after “affixed”, insert “predominantly”.
(56) Schedule 1, page 467 (line 13), after “affixed”, insert “predominantly”.
I do not need to delay the chamber very long in relation to these amendments. We will be supporting the government’s amendments as raised in the Senate Economics Legislation Committee report. I just want to take a moment to commend that very hardworking committee and the secretariat for all the very hard work they do.
This report, of 7 September 2009, identified a number of matters whereby these bills could be enhanced, and the government has, I am pleased to say, taken up those amendments. I will just mention the substantive elements. Amendments (14) and (15) were based on recommendation 6 in the report, and we agree that it is important that credit providers must undertake their own verification of whether a loan should be responsibly extended to a consumer. Amendments (17) to (19) are based on recommendation 8 in the report, and we do consider that it is important that consumers should be able to seek remedies and compensation for loss suffered as a result of a contravention of responsible lending provisions, regardless of whether a civil penalty is declared.
Finally, in respect of amendments (31) to (34), that have been based on recommendation 11 in the report, we are of the view that where a hardship application is rejected by a credit provider the lender should be required to provide in writing the reasons for the rejection. There are a raft of amendments of a technical nature and in respect of a timetable implementation. Obviously, I did not need to go into all of them. There has also been a foreshadowing of new regulations, and we are certainly interested to see what they will provide. These are, however, important amendments dealing with the timing and operation of the bill, particularly in terms of the start date for the national consumer code and responsible lending provisions for non-ADIs, and registration. I am very pleased to say that we will be supporting these amendments.
Question agreed to.
by leave—I move government amendments (1) to (43) to the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009, many of which I have spoken to previously:
(1) Clause 2, page 2 (table item 2), omit the table item, substitute:
2. Schedule 1, items 1 to 21 | At the same time as section 3 of the National Consumer Credit Protection Act 2009 commences. |
2A. Schedule 1, item 22 | The day this Act receives the Royal Assent. |
2B. Schedule 1, item 23 | At the same time as section 3 of the National Consumer Credit Protection Act 2009 commences. |
(2) Clause 4, page 4 (after line 7), after the definition of appeal or review proceedings, insert:
carried over instrument means a contract or other instrument that:
(a) was made before commencement; and
(b) was in force immediately before commencement; and
(c) the old Credit Code of a referring State or a Territory applied to immediately before commencement.
(3) Clause 4, page 4 (after line 12), after the definition of carried over provision, insert:
Chapter 3 start day: see subitem 19(1) of Schedule 1 to this Act.
(4) Clause 4, page 4 (lines 20 and 21), omit the definition of commencement, substitute:
commencement means the start of 1 July 2010, or a later day prescribed by the regulations.
(5) Clause 4, page 7 (after line 14), after the definition of registered to engage in a credit activity, insert:
registrable corporation has the same meaning as in section 7 of the Financial Sector (Collection of Data) Act 2001.
(6) Clause 4, page 8 (after line 3), after the definition of this Act, insert:
transition end day means 30 June 2011, or a later day prescribed by the regulations.
(7) Schedule 1, page 13 (after line 23), after Division 1, insert:
Division 1A—Application of the new Credit Code
2A Application of the new Credit Code
(1) The new Credit Code applies from commencement.
Note: The new Credit Code does not apply before commencement. It also does not apply in relation to contracts or other instruments that were made before commencement, unless they are carried over instruments (see item 3).
(2) Subitem (1) is subject to subitem 3(2).
(8) Schedule 1, Division 2, page 13 (line 24) to page 15 (line 3), omit the Division, substitute:
Division 2—Treatment of contracts or other instruments made before commencement
3 Application of the new Credit Code to contracts or other instruments made before commencement
(1) The new Credit Code does not apply in relation to a contract or other instrument that was made before commencement.
(2) Despite subitem (1), the new Credit Code applies in relation to a carried over instrument.
(3) Despite subitem (2), sections 5, 13 and 172 of the new Credit Code do not apply in relation to a carried over instrument. Instead, sections 6, 11 and 150 of the old Credit Code of a referring State or a Territory, as in force immediately before commencement, apply from commencement in relation to a carried over instrument as if those provisions respectively were sections 5, 13 and 172 of the new Credit Code.
(4) Despite subitem (2), subsections 6(2) and 50(2), (3), (4), (5) and (8) of the new Credit Code do not apply in relation to a carried over instrument.
(5) Despite subitem (2), subsection 72(5) of the new Credit Code does not apply in relation to a carried over instrument. Instead, the following provision applies from commencement in relation to a carried over instrument as if the provision were subsection 72(5) of the new Credit Code:
Application
(5) This section and sections 73 to 75 do not apply to a credit contract under which the maximum amount of credit that is or may be provided is more than an amount equal to 110% of the amount of the average loan size for the purchase of new dwellings in New South Wales as set out in the Table of Housing Finance Commitments in the most recent publication entitled Housing Finance, Australia, as published from time to time by the Australian Bureau of Statistics.
(6) Despite subitem (2), subsection 94(4) of the new Credit Code does not apply in relation to a carried over instrument. Instead, the following provision applies from commencement in relation to a carried over instrument as if the provision were subsection 94(4) of the new Credit Code:
(4) This Division does not apply to a credit contract in respect of which the maximum amount of credit that is or may be provided is more than an amount equal to 110% of the amount of the average loan size for the purchase of new dwellings in New South Wales as set out in the Table of Housing Finance Commitments in the most recent publication entitled Housing Finance, Australia, as published from time to time by the Australian Bureau of Statistics.
(9) Schedule 1, item 4, page 15 (line 11), after “commencement”, insert “in relation to a carried over instrument”.
(10) Schedule 1, item 5, page 17 (line 9), after “commencement”, insert “, in relation to a carried over instrument,”.
(11) Schedule 1, item 5, page 17 (line 15), after “commencement”, insert “, in relation to a carried over instrument,”.
(12) Schedule 1, item 8, page 19 (before line 8), before paragraph (2)(a), insert:
(aa) a contract or other instrument that is not a carried over instrument; or
(13) Schedule 1, item 10, page 20 (line 10), omit “that”.
(14) Schedule 1, Part 3, page 27 (line 1) to page 28 (line 25), omit the Part, substitute:
Part 3—Application of the National Credit Act (other than the new Credit Code) and Schedule 2 to this Act
Division 1—Application of the National Credit Act (other than Chapter 3 and the new Credit Code)
17A Application of the National Credit Act (other than Chapter 3 and the new Credit Code)
(1) The National Credit Act (other than Chapter 3 and the new Credit Code) applies from commencement.
Note 1: The National Credit Act does not apply before commencement. However, see subitem (2), which provides that regulations made under section 329 of the National Credit Act may apply before commencement.
Note 2: See item 19 for the application of Chapter 3 (which deals with responsible lending conduct) of the National Credit Act.
Note 3: See items 2A and 3 for the application of the new Credit Code.
Note 4: Generally, the National Credit Act (other than the new Credit Code) does not apply to contracts or other instruments made before commencement. However, see item 18 for exceptions to this.
(2) Despite subitem (1), regulations made under section 329 of the National Credit Act may apply on and after the day section 3 of the National Credit Act commences.
18 Treatment of contracts or other instruments made before commencement
(1) The National Credit Act (other than Chapter 3 and the new Credit Code) does not apply in relation to a contract or other instrument that was made before commencement.
Note 1: See item 19 for the application of Chapter 3 (which deals with responsible lending conduct) of the National Credit Act.
Note 2: See items 2A and 3 for the application of the new Credit Code.
(2) Despite subitem (1), the regulations may provide for the application of all or specified provisions of the National Credit Act to a person (including the licensing of that person) in relation to credit activities engaged in on or after commencement in relation to a carried over instrument.
(3) Despite subitem (1), Part 4-3 of the National Credit Act (which deals with the jurisdiction and procedure of courts) applies to proceedings brought under the new Credit Code after commencement in relation to a carried over instrument.
(4) Despite subitem (1), regulations made under section 329 of the National Credit Act for the purposes of section 330 of that Act or the new Credit Code may make provision in relation to proceedings brought after commencement in relation to a carried over instrument.
Division 2—Application of Chapter 3 of the National Credit Act
19 Application of Chapter 3 of the National Credit Act
When all of Chapter 3 (responsible lending conduct) applies to all licensees
(1) Chapter 3 (which deals with responsible lending conduct) of the National Credit Act applies on and after the day (the Chapter 3 start day) that is 1 January 2011, or a later day prescribed by the regulations.
Note: Chapter 3 of the National Credit Act does not apply before the Chapter 3 start day. However, under subitem (2), certain provisions of Chapter 3 apply before then to some licensees (and registered persons because of item 36 of Schedule 2 to this Act).
When certain provisions of Chapter 3 apply earlier for some licensees
(2) Despite subitem (1), sections 112, 115, 116, 117, 118, 119, 122, 123, 124, 128, 129, 130, 131, 133, 135, 138, 139, 140, 141, 142, 145, 146, 147, 151, 152, 153, 154, 156, 162, 163 and 164 (which deal with the main responsible lending conduct rules) of the National Credit Act apply in relation to conduct engaged in by a licensee in the period that:
(a) starts on commencement; and
(b) ends immediately before the Chapter 3 start day;
if:
(c) the licensee is neither an ADI nor a registrable corporation; and
(d) the conduct is engaged in in relation to a contract or other instrument made on or after commencement.
Application of Chapter 3 in relation to contracts or other instruments
(3) Chapter 3 of the National Credit Act does not apply in relation to a contract or other instrument that was made before commencement.
Note: Chapter 3 of the National Credit Act applies in relation to contracts or other instruments made on or after commencement, but see subitem (4) for exceptions to this.
(4) Despite subitem (3), sections 120, 132, 143 and 155 of the National Credit Act do not apply in relation to a contract or other instrument that was made before the Chapter 3 start day.
(5) This item is subject to subitem 18(2) (which deals with regulations that provide for the application to a person of the National Credit Act).
Division 3—Application of Schedule 2 to this Act
20 Application of Schedule 2 to this Act in relation to contracts or other instruments
(1) Schedule 2 to this Act (which deals with registration) does not apply in relation to a contract or other instrument that was made before commencement.
Note 1: Schedule 2 applies in relation to contracts or other instruments made on or after commencement.
Note 2: Schedule 2 applies from the time it commences (see item 3 of the commencement table in section 2). However, some provisions of Schedule 2 expressly provide that parts of Schedule 2 apply from a later time.
(2) Despite subitem (1), the regulations may provide for the application of all or specified provisions of Schedule 2 to a person (including the registration of that person) in relation to credit activities engaged in on or after commencement in relation to a carried over instrument.
(15) Schedule 1, item 21, page 29 (lines 2 to 7), omit the item, substitute:
21 Regulations about ASIC’s approach during the transitional period
The regulations may provide for the approach ASIC must take in the administration of this Act or the National Credit Act during the period that:
(a) starts on the day section 3 of the National Credit Act commences; and
(b) ends on 30 June 2011, or a later day prescribed by the regulations.
(16) Schedule 2, heading to Division 1, page 33 (lines 3 to 5), omit the heading, substitute:
Division 1—Prohibition that applies only from commencement to 31 December 2010, or later prescribed day
(17) Schedule 2, item 3, page 33 (lines 8 to 11), omit paragraphs (a) and (b), substitute:
(a) starts on commencement; and
(b) ends on 31 December 2010, or a later day prescribed by the regulations.
(18) Schedule 2, heading to subitem 4(3), page 33 (line 28), omit the heading, substitute:
Defences
(19) Schedule 2, item 4, page 34 (after line 13), at the end of the item, add:
(4) For the purposes of subitems (1) and (2), it is a defence if:
(a) the person engages in the credit activity on behalf of another person (the principal); and
(b) the person is a representative of the principal; and
(c) the person’s conduct in engaging in the credit activity is within the authority of the principal; and
(d) the principal is exempted from subitems (1) and (2) under paragraph 41(1)(a), 41(3)(a) or 42(a).
Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (4): see subsection 13.3(3) of the Criminal Code.
(20) Schedule 2, heading to Division 2, page 34 (lines 14 to 16), omit the heading, substitute:
Division 2—Prohibition that applies only from 1 January 2011, or later prescribed day, to the transition end day
(21) Schedule 2, item 5, page 34 (lines 19 to 22), omit paragraphs (a) and (b), substitute:
(a) starts immediately after the end of the period referred to in item 3; and
(b) ends on the transition end day.
(22) Schedule 2, heading to subitem 6(3), page 35 (line 9), omit the heading, substitute:
Defences
(23) Schedule 2, item 6, page 35 (line 11), omit “for or”.
(24) Schedule 2, item 6, page 35 (after line 27), at the end of the item, add:
(4) For the purposes of subitems (1) and (2), it is a defence if:
(a) the person engages in the credit activity on behalf of another person (the principal); and
(b) the person is a representative of the principal; and
(c) the person’s conduct in engaging in the credit activity is within the authority of the principal; and
(d) the principal is exempted from subitems (1) and (2) under paragraph 41(1)(a), 41(3)(a) or 42(a).
Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (4): see subsection 13.3(3) of the Criminal Code.
(25) Schedule 2, item 7, page 36 (lines 1 and 2), omit paragraph (b), substitute:
(b) ends on the transition end day.
(26) Schedule 2, item 11, page 38 (lines 8 to 11), omit paragraphs (a) and (b), substitute:
(a) starts on 1 April 2010, or a later day prescribed by the regulations; and
(b) ends on 30 June 2010, or a later day prescribed by the regulations.
(27) Schedule 2, item 12, page 39 (after line 29), after subitem (2), insert:
(2A) For the purposes of paragraph (2)(c), a reference to a credit activity in the definitions of banned from engaging in a credit activity under a law of a State or Territory and State or Territory credit licence in subsection 5(1) of the National Credit Act (as those definitions apply for the purposes of this Act because of subsection 4(2) of this Act) includes a reference to an activity that would be a credit activity if the new Credit Code had applied from the day section 3 of the National Credit Act commences.
(28) Schedule 2, page 43 (before line 13), before item 16, insert:
15A Application of this Division
This Division (other than subitem 16(1)) applies during the period that:
(a) starts on commencement; and
(b) ends on the transition end day.
(29) Schedule 2, item 16, page 43 (lines 17 to 20), omit paragraphs (1)(a) and (b), substitute:
(a) starts at the same time as the start of the period referred to in subitem 11(2); and
(b) ends on the transition end day;
(30) Schedule 2, item 16, page 43 (lines 24 to 28), omit subitem (2) (not including the heading).
(31) Schedule 2, item 21, page 47 (lines 26 to 29), omit the item, substitute:
21 Cancellation of all registrations on transition end day
The registration of every registered person is cancelled at the end of the transition end day.
(32) Schedule 2, item 23, page 48 (line 15), omit “ceases to engage in credit activities”, substitute “does not engage, or ceases to engage, in credit activities”.
(33) Schedule 2, item 23, page 49 (after line 16), after subitem (1), insert:
(1A) For the purposes of paragraph (1)(e), a reference to a credit activity in the definitions of banned from engaging in a credit activity under a law of a State or Territory and State or Territory credit licence in subsection 5(1) of the National Credit Act (as those definitions apply for the purposes of this Act because of subsection 4(2) of this Act) includes a reference to an activity that would be a credit activity if the new Credit Code had applied from the day section 3 of the National Credit Act commences.
(34) Schedule 2, item 24, page 50 (after line 26), after subitem (2), insert:
(2A) For the purposes of paragraph (2)(c), a reference to a credit activity in the definitions of banned from engaging in a credit activity under a law of a State or Territory and State or Territory credit licence in subsection 5(1) of the National Credit Act (as those definitions apply for the purposes of this Act because of subsection 4(2) of this Act) includes a reference to an activity that would be a credit activity if the new Credit Code had applied from the day section 3 of the National Credit Act commences.
(35) Schedule 2, item 32, page 54 (line 5), omit “(other than item 36)”, substitute “(other than items 32A, 36 and 39)”.
(36) Schedule 2, item 32, page 54 (lines 7 and 8), omit paragraph (b), substitute:
(b) ends on the transition end day.
(37) Schedule 2, page 54 (after line 8), after item 32, insert:
32A Application of sections 64 and 65 of the National Credit Act before commencement
(1) This item applies during the period that:
(a) starts at the same time as the start of the period referred to in subitem 11(2); and
(b) ends immediately before commencement.
(2) Sections 64 and 65 (which deal with the authorisation of credit representatives) of the National Credit Act apply during the period as if:
(a) all references to a licensee were references to a registered person; and
(b) all references to a licensee’s licence were references to a registered person’s registration.
(3) An authorisation of a credit representative that is given under section 64 or 65 of the National Credit Act (as those sections apply because of subitem (2)) during the period is taken not to be given until commencement.
(4) Despite subitem (3), a body corporate that has been authorised as a credit representative under subsection 64(1) of the National Credit Act (as it applies because of subitem (2)) during the period may authorise natural persons as credit representatives under subsection 65(1) of the National Credit Act (as it applies because of subitem (2)) during the period.
(38) Schedule 2, item 33, page 54 (line 30), after “subitem (1)”, insert “or item 32A”.
(39) Schedule 2, item 33, page 55 (line 3), after “subitem (1)”, insert “or item 32A”.
(40) Schedule 2, item 33, page 55 (line 6), after “subitem (1)”, insert “or item 32A”.
(41) Schedule 2, item 36, page 56 (lines 3 to 22), omit the item, substitute:
36 Application of Chapter 3 of the National Credit Act
When all of Chapter 3 (responsible lending conduct) applies to all registered persons
(1) Chapter 3 (which deals with responsible lending conduct) of the National Credit Act applies during the period that:
(a) starts on the Chapter 3 start day; and
(b) ends on the transition end day;
as if:
(c) all references to a licensee were references to a registered person or licensee; and
(d) all references to licensees were references to registered persons or licensees.
Note: The Chapter 3 start day is 1 January 2011 (or later prescribed day). That day is when Chapter 3 of the National Credit Act starts to apply. However, under subitem (2) of this item, certain provisions of Chapter 3 apply before then to some registered persons.
When certain provisions of Chapter 3 apply earlier for some registered persons
(2) Despite subitem (1), sections 112, 115, 116, 117, 118, 119, 122, 123, 124, 128, 129, 130, 131, 133, 135, 138, 139, 140, 141, 142, 145, 146, 147, 151, 152, 153, 154, 156, 162, 163 and 164 (which deal with the main responsible lending conduct rules) of the National Credit Act apply, in relation to a registered person who is neither an ADI nor a registrable corporation, during the period referred to in subitem 19(2) of Schedule 1 as if:
(a) all references to a licensee were references to a registered person or licensee; and
(b) all references to licensees were references to registered persons or licensees.
Note: The period referred to in subitem 19(2) of Schedule 1 starts on commencement and ends immediately before the Chapter 3 start day.
Some provisions of Chapter 3 never apply to registered persons
(3) Despite subitem (1), the following provisions of Chapter 3 of the National Credit Act do not apply in relation to registered persons:
(a) paragraphs 113(2)(d), 126(2)(d), 127(2)(d), 136(2)(d), 149(2)(d), 150(2)(d) and 160(3)(d) (which deal with including Australian credit licence numbers in credit guides);
(b) subparagraphs 113(2)(h)(i), 126(2)(e)(i), 127(2)(e)(i), 136(2)(h)(i), 149(2)(e)(i), 150(2)(e)(i) and 160(3)(f)(i) (which deal with including information about internal dispute resolution procedures in credit guides).
Application of Chapter 3 in relation to contracts or other instruments
(4) Despite subitem 20(1) of Schedule 1, sections 120, 132, 143 and 155 of the National Credit Act do not apply in relation to a contract or other instrument that was made before the Chapter 3 start day.
Note: Subitem 20(1) of Schedule 1 provides that this Schedule applies in relation to contracts or other instruments made after commencement. However, sections 120, 132, 143 and 155 of the National Credit Act, which apply in relation to registered persons because of subitem (1) of this item, do not apply in relation to contracts or other instruments made before the Chapter 3 start day.
(5) This item is subject to subitem 20(2) of Schedule 1 (which deals with regulations that provide for the application of this Schedule in relation to contracts or other instruments made before commencement).
(42) Schedule 2, item 39, page 57 (lines 12 to 16), omit the item, substitute:
39 Application of Chapter 7 of the National Credit Act
(1) Chapter 7 (which deals with miscellaneous matters) of the National Credit Act, other than sections 327, 329 and 331, applies during the period that:
(a) starts on the day section 3 of the National Credit Act commences; and
(b) ends on the transition end day;
as if all references to “this Act” were references to “this Act and Schedule 2 to the Transitional Act”.
(2) Section 327 of the National Credit Act applies to a decision made by ASIC under this Schedule (other than subitem 41(3)) that is made during the period referred to in subitem (1) of this item in the same way as it applies to a decision made by ASIC under the National Credit Act on or after commencement.
(43) Schedule 2, item 41, page 58 (lines 17 and 18), omit paragraph (1)(a), substitute:
(a) exempt:
(i) a person; or
(ii) a person and all of the person’s credit representatives;
from all or specified provisions to which this Part applies; or
The opposition agree with the amendments.
Question agreed to.
National Consumer Protection Bill 2009, as amended, agreed to; the National Consumer Credit Protection (Fees) Bill 2009 agreed to; and the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009, as amended, agreed to.
National Consumer Protection Bill 2009 and the National Consumer Credit Protection (Transitional and Consequential Provisions) Bill 2009 reported with amendments and the National Consumer Credit Protection (Fees) Bill 2009 reported without amendments; report adopted.
I move:
That these bills be now read a third time.
Question agreed to.
Bills read a third time.
Debate resumed.
I rise to speak on the Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009. The coalition will be supporting this bill. It provides a mechanism for the regulation of margin lending that has obviously been much discussed since the global financial downturn and regulation in and around the trustee companies, and the regulation of promissory notes. The bill also provides consistent federal regulation and oversight of these financial services and products by the Australian Securities and Investments Commission, ASIC. Overall, the coalition welcome these targeted reforms, reforms which provide a positive outcome for industry, government and consumers alike.
When looking at each of the financial areas this bill addresses, it is best to look at each reform independently from the other. The first of the areas subject to reform is that of margin lending. There have been many regulatory problems surrounding this form of financial service and activity, more recently highlighted by the collapse of the Townsville based Storm Financial in 2008, and more broadly felt by financial service organisations during the downturn of the market in late 2007 and early 2008. A lack of supervision and confusion over adviser and lender responsibilities are just a few of the areas often reported in the media and suffered by consumers who have purchased financial products unsuited to their particular financial situation. The uniform national regulation of margin lending was agreed upon by the Council of Australian Governments, COAG, in March 2008 with the objective of providing clear and consistent regulation across the country.
When examining the margin lending aspects of this bill, there are three primary objectives. The first objective is that the licensing of lenders and advisers who engage in margin lending activities will be mandatory through instituting this activity through chapter 7 of the Corporations Act 2001. Licensing will be compulsory 12 months after the assent of this bill.
The second objective of the bill addresses the responsibility and ambiguities between advisers and providers. This goes a long way towards addressing the grey area that currently exists with margin lending, particularly the negative effects faced by investors where equities are being liquidated in order to meet margin loan debt and where investors have not been informed by financial advisers or loan providers where margin calls are acquired. This is a situation often faced at the end of a bull market and was experienced by the unfortunate investors in the collapsed Storm Financial. The improvement and clarity of this system is a positive step, particularly for the many investors who may be unaware of what is happening to their financial products.
The third and final objective of the bill is to provide additional investor protection mechanisms for margin lending, in terms of responsible lending, through subsequent regulations, which are currently available for public exposure and comment. The coalition would prefer that such substantive elements be vested within the bill itself in order to provide certainty to the market, particularly given that such provisions dictate the way in which business structures itself when engaging in margin-lending activities. The government is beginning to make a habit of vesting the substantive measures of bills in subsequent regulations. I have seen this constantly as Chair of the Scrutiny of Bills Committee. I do understand that it is easier; that doing this facilitates the passage of legislation because you can incorporate in the regulations schemes that may be quite difficult to work out. However, such an approach lacks market certainty and there can be a significant time delays between a bill receiving assent and regulations being promulgated.
It also means that the government to some extent can be very lazy about developing a scheme that can be incorporated in the bill and instead leave it to the regulations. A recent example of this is the government’s failure to release regulations for short selling. I can remember that the government—I think it was through Senator Sherry—said back in December 2008 that the bill providing for regulations around this activity was critically urgent. Yet 9½ months later the regulations are still, so far as I know, nowhere to be seen. They have not seen the light of day. It simply illustrates the point I have been making. It is easier to change regulations on the run than it is to amend legislation. It takes less effort to provide for future regulations, as opposed to sitting down and doing the hard yards of penning legislation that has to be scrutinised on the floor of the Senate. Nevertheless, we think these reforms are very important and that they outweigh our misgivings at the uncertainty of not having the provisions in the regulations incorporated in the act.
The next area of reform which the bill before us deals with is in relation to trustee companies. According to Treasury estimates, this is an industry with approximately $510 billion worth of assets under management and quite a significant part of the financial services sector in Australia. The bill before us looks to provide national uniformity in this area by allowing trustee companies to operate across multiple state and territory jurisdictions without having to comply with different laws and be subject to differing compliance costs. This is a very sensible change and we welcome it. As with the changes to margin-lending practices, the uniformity changes to trustee companies will become part of chapter 7, with their financial products to be regulated in the Corporations Act 2001. This will mean that an Australian financial services licence, which we discussed during debate on a previous bill, will need to be held by people who are providing services in this area.
The final area this bill deals with is that of promissory notes. The changes contained within this bill will ensure that promissory notes are regulated in the same way debentures are and will in turn be subject to additional disclosure and regulatory requirements, as are debentures. The additional disclosure and regulatory requirements for promissory notes will mean that promissory notes issued by retail clients will need to be accompanied by a prospectus and the appointment of a trustee, along with the issuance of a trust deed—all changes that will help to ensure transparency and that are welcomed by the coalition.
By and large, the package of reforms under consideration in this bill are sound, targeted reforms which will ultimately benefit Australian investors. To date, Australia has weathered the global downturn pretty well. A great deal of that is due to our strong and robust financial system, as we have been constantly reminded by the Governor of the Reserve Bank and, indeed, the Secretary to the Treasury, Dr Henry. Our financial system underwent many positive regulatory changes by the Howard government and has stood up well to the stress tests of the global downturn. The initiative taken by the Howard government to create the Australian Prudential Regulatory Authority, APRA, and the Australian Securities Investment Commission, ASIC—two separate bodies designed to provide a strong regulatory framework for financial services in Australia—is one of the main reasons Australia has been able to perform so well during this period of global economic downturn. The coalition welcomes the reforms contained in the Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009 and commends the bill to the chamber.
On 26 March 2008, COAG agreed to nationalise consumer credit regulation and reached in-principle agreement that the Commonwealth would assume regulatory responsibility for margin lending and trustee corporations. On 3 June 2008, the government released a green paper which canvassed seven critical areas of Australia’s financial services, including trustee corporations, margin loans and promissory notes. A margin loan consultation group was established, consisting of industry associations, major lenders and other stakeholders such as lawyers and external dispute resolution schemes. Regular meetings were held by this group during the policy formulation stage and the group reviewed the draft legislation prior to its release for public comment.
On 7 May 2009, after further consultation with the consultation group, an exposure draft of the Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009, as well as draft regulations relating to margin lending, was released for public comment. On 25 June 2009, the Senate referred the bills that make up the consumer protection reform package to the Senate Economics Legislation Committee for inquiry. The committee reported on 7 September 2009.
The government has undertaken an extensive consultation period with stakeholders in the development of the bill. There are three key areas that the financial services modernisation bill seeks to amend: margin lending, the regulation of trustee corporations and the alignment of the regulation of promissory notes with debentures. Margin lending is the borrowing of money to invest in the stock market or other investments. It lets you borrow money to invest in shares and other financial products using existing investments as security. Borrowing money to invest in this way can increase the gains from an investment; it can also multiply the losses.
Margin lending in Australia is offered by a wide range of financial institutions and is often available online. It is also largely unregulated in Australia. Margin lenders will usually approve a loan for a consumer whereby the value of the loan amount cannot exceed a certain percentage of the loan’s security. This is called the loan-to-value ratio. When the value of the overall portfolio falls so that the loan-to-value ratio rises to greater than the level originally approved by the margin loan provider, the lender issues a margin call. This requires the investor to return the ratio to below the approved level by giving the lender additional security, reducing the size of the portfolio or paying extra cash.
Although the level of margin lending has dropped as a result of the global recession, the general use of margin lending has increased quite considerably over the last decade. Money that investors usually borrow in a margin loan is generally backed by the securities or financial products owned by the investors, such as listed shares. However, recently—in the past couple of years—some lenders have encouraged investors to use their homes or investment properties as collateral. Sadly, this has resulted in several high-profile collapses, such as the Storm Financial collapse. There was also the now infamous case, reported last month, of a loan given to a Townsville pensioner who signed a blank application on instruction of her Storm adviser for a $208,000 loan. In the application it was stated that this person had an income of $104,000 a month—50 times her actual income on the age pension—and made no mention of her existing margin loan of $625,000 with another bank.
This bill amends the Corporations Act to include margin lenders and provide for the first time legislation to protect consumers from harmful lending practices. The bill will provide protection for consumers in that lenders and advisers will have to be licensed and regulated by ASIC; consumers will have access to independent, free and fast dispute resolution services; and advisers will be required to only provide advice that is appropriate to the client’s needs and circumstances. Furthermore, the responsible lending obligations that are an important part of the national consumer credit protection bill, which we have just discussed, will also be introduced into the Corporations Act and applied to providers of margin lending products. This will require lenders to not provide a loan if it is unsuitable, if the borrower cannot service the debt or if the borrower could suffer substantial hardship.
Another important aspect of the bill is a provision which regulates the notification of margin calls to clients, in particular where a loan has been arranged through a financial planner. Situations have arisen where it has been unclear whether the lender or the planner was responsible for notifying clients when a margin call occurred; a delay in notification can lead to losses for the consumer. The amendments require that it is the lenders that must notify the clients when a margin call is made unless the client explicitly agrees to being notified by their planner.
The second aspect of the bill is the regulation of trustee corporations. Trustee corporations provide services such as the administration of personal trusts and deceased estates, including acting as a trustee of a trust, applying for probate of a will or acting as an executor of a deceased estate. Currently, trustee corporations that operate across different states face considerable compliance burdens, with different reporting and authorisation requirements across jurisdictions. The bill introduces a requirement that both public and private trustee companies hold Australian financial services licences. It also streamlines the dispute resolution process currently available to beneficiaries. Currently, aside from internal voluntary dispute resolution services offered by trustee companies, the only avenue of recourse for beneficiaries is the Supreme Court. Under the Commonwealth system, trustee companies will be administered by a single regulator, ASIC, and this will greatly simplify the process.
The final area this bill covers is its amendment of the Corporations Act to create a consistent approach to the regulation of promissory notes, so addressing issues that arose out of the collapse of the Westpoint Group. The amendments in this bill will improve regulatory certainty and clarify the law by amending the definition of debentures so that promissory notes valued at above $50,000 fall into the definition and are subject to the same regulatory regime. The amendments also provide for the establishment of a public register of debenture trustees. Only certain entities are permitted to undertake this role, and they must meet requirements set out in the Corporations Act as well as in ASIC’s guidelines on debentures.
This bill provides efficiency gains through harmonisation, improved regulation and transparency of financial services, and additional protection for consumers. It targets areas where ordinary investors have faced devastating losses as a result of poor legislative protection in some areas of financial services. No legislation can provide absolute guarantees for investors. However, it is incumbent on any government to seek to ensure consumers are engaging with financial services that are well regulated and provide full disclosures as to risks and benefits. This legislation goes a long way towards protecting consumers in the future from losses incurred by the collapse of organisations such as Storm Financial and the Westpoint Group. I commend the bill to the Senate.
I thank all of those who have made a contribution to the debate on the Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009. As has been described by both the previous speakers, this bill will give effect to a COAG agreement to provide for the national regulation of margin lending and trustee corporations. The bill will also make long-awaited improvements to the regulatory regime governing the issue of debentures.
The bill will introduce three major changes. The first is the introduction of national regulation for margin loans. Until now margin lending has not been subject to any specific regulatory regime at all. This is a serious problem, particularly because non-standard margin loans contain some features that borrowers often find difficult to understand. As we all saw from the fallout from several recent high-profile financial collapses, when investors put their money into sophisticated financial products, they often do not fully understand that they stand to lose hundreds of thousands of dollars and sometimes their family home. The financial services modernisation bill will change that. Lenders and advisers will need to be licensed and regulated by ASIC, consumers will have access to independent, free and fast dispute resolution services, and, importantly, under the new responsible lending requirements, advisers will be required to only provide advice that is appropriate to the client’s needs and circumstances.
The second area covered by the bill is the traditional activities of trustee corporations. These include personal trusts and deceased estate administration services. Trustee corporations which carry out these tasks are currently regulated by states and territories but the regulatory coverage is often inconsistent. Under the Commonwealth system there will be a single licensing regime administered by one, single well-resourced regulator, ASIC. Under the financial services modernisation bill, the traditional services of trustee corporations will be deemed to be financial services and will be covered by the consumer protection and disclosure requirements of the Corporations Act 2001 and the ASIC Act 2001.
The third area covered by the bill is debentures and promissory notes. The bill will amend the regulatory framework in the Corporations Act to align the regulation of promissory notes and debentures and also provide additional protection for investors by removing uncertainty in the law. This is a much-needed change following the collapse of Westpoint, which tried to use the issue of promissory notes with face values of at least $50,000 to avoid the operation of the law.
By introducing national regulation for margin loans and improving the regulatory framework governing trustee corporations, debentures and promissory notes this bill will make important changes—changes which will bring far greater consistency, clarity and fairness to our consumer credit regulatory regime.
Question agreed to.
Bill read a second time.
Bill passed through its remaining stages without amendment or debate.
Debate resumed from 5 February, on motion by Senator Wong:
That this bill be now read a second time.
On behalf of the coalition, I rise to speak on the Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008. This bill contains a range of measures intended to improve the efficiency of the Federal Court system. The measures include: introduction of a power to refer all or part of a proceeding in the Federal Court to a referee for report; amendment of the Federal Court of Australia Act to permit a single judge to make interlocutory orders in proceedings that would otherwise be heard by a full court; amendment of the International Arbitration Act 1974 to confer jurisdiction on the Federal Court, concurrent with state and territory supreme courts, in matters arising under that act; permission for federal courts and tribunals to negotiate and execute leases on their own behalf; authorisation of court officers to take certain security measures in respect of court premises; and amendment of the Family Law Act to strengthen the enforceability of binding financial agreements—for example, prenuptial agreements.
The opposition considers that these proposals have substantial merit. The power to refer issues to a referee for report is one that already exists in most state jurisdictions. It is particularly important in cases which require detailed examination of financial records or which involve complex technical issues. It has significant potential to reduce the cost and length of litigation. The power to negotiate and execute leases is a necessary component of the self-administration of courts and tribunals. That responsibility previously rested with the now defunct Department of the Arts and Administrative Services. The Attorney-General’s approval is required for purchases over $1 million.
The coalition welcomes the proposal to extend the court’s jurisdiction in respect of international arbitration matters. Australia is a centre of excellence in respect of the provision of dispute resolution services and should continue to strengthen its position as the venue of choice for commercial disputes in our region. The Federal Court, with its superb reputation in commercial matters, should be able to play its full part in that process. The amendment in respect of binding financial agreements is a necessary corrective to the decision in Black v Black, which held that strict compliance with all of the technical requirements in the Family Law Act was a precondition to enforceability of the agreement. That decision was widely criticised. The amendment will provide that, provided a party has entered an agreement on the basis of an informed decision, the agreement will not be voided by a mere technicality.
This bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs, which reported on 17 February. The only substantive submission was from the Family Law Section of the Law Council of Australia and was in relation to the amendments on binding financial agreements. The Law Council indicated that the current drafting of the amendment had the potential for further disputes of a technical nature, of the very type the proposed amendments were intended to overcome. There was also a concern that agreements made between 27 December 2000 and 19 January 2004 might have been inadvertently rendered invalid by the proposed amendments or give rise to other technical disputes. The government’s amendments, circulated on sheet PF539, give effect to the Law Council’s technical concerns and, provided those amendments are made, the bill has the opposition’s support.
I note that there are a considerable number of pages—indeed, seven pages—of amendments that have been required. I think this highlights yet again the benefit of the Senate committee system, which has allowed the Senate Legal and Constitutional Affairs Committee of this place to consider the bill in detail and to consider a good submission from the Law Council, which brought about this government response which the coalition supports. I commend the bill to the Senate.
I would like to thank senators for their contributions to this debate. The Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 contains a range of measures which demonstrate the government’s commitment to making the federal courts more flexible, minimising the costs of litigation and improving access to the civil justice system for all Australians.
The measures in this bill are consistent with the government’s longstanding commitment to measures to improve access to justice. The government is taking action to address the cost of improving access to justice with a range of further reforms in this area. This includes working with the federal courts to develop enhanced case management powers and asking the National Alternative Dispute Resolution Advisory Council to report on strategies to ensure greater use of appropriate dispute resolution options both as an alternative to civil proceedings and during proceedings.
Importantly, the bill gives the Federal Court greater flexibility to obtain expert assistance, particularly in complex and technical matters, by empowering it to refer all or part of proceedings to an appropriately qualified person for report. This procedural flexibility, combined with the referee’s specialist expertise, will allow the referee to quickly get to the core of the technical issues and reduce costs and delays for litigants. This will enable the court to more effectively and efficiently manage large litigation. Of course, the court is not bound to accept the findings of the referee, and the legal effects of the report are a matter for the court’s discretion.
The bill responds to the decision of the full court of the Family Court of Australia in Black v Black. The bill amends the Family Law Act to limit the technical requirements that people need to meet to enter into one of these agreements while still providing necessary protections to parties—such as a requirement to get legal advice. It will restore confidence in the binding nature and enforceability of financial and termination agreements under the Family Law Act.
The bill gives the Federal Court concurrent jurisdiction with state and territory supreme courts for all matters arising out of the International Arbitration Act. This increases the choice of forum for litigants and puts the Federal Court in a better position to operate as a regional hub for commercial litigation. To allow the Federal Court to more efficiently manage cases and to avoid unnecessary delays for litigants, the bill enables a single judge of the court to make a necessary interlocutory order in proceedings that otherwise would be required to be heard by the full court.
The bill promotes the efficient administration and management of federal courts and tribunals by removing unnecessary and out-of-date restrictions on the heads of the Federal Court, the Family Court, the Administrative Appeals Tribunal and the Native Title Tribunal from acquiring interest in land for the purposes of the Lands Acquisition Act. It also makes it clear to Federal Court officers and the public the areas in which authorised officers can exercise powers under the Public Order (Protection of Persons and Property) Act in the interests of the court’s security where the Federal Court is sitting on open land or in a building other than its usual premises. This will have particular application when the Federal Court sits on-country to hear native title matters.
I should make some remarks on the report of the Senate Standing Committee on Legal and Constitutional Affairs. On 4 December last year, the bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs. The committee reported on 23 February, recommending that the Senate pass the bill. The government thanks the committee for its work on the bill. As, I think, the minister foreshadowed during the consideration stage of the bill, the government will seek to move amendments to the bill. These will address issues that have arisen in the Senate committee’s report into provisions of the bill and ongoing consultations with stakeholders. Specifically, the government amendments will build upon the amendments to the Family Law Act in response to the Black v Black decision to ensure the parties who have entered or will enter into financial or termination agreements are protected from the risk that their ex-partner could use a technicality to avoid being bound by an otherwise just and equitable agreement. The government amendments will also make some minor technical corrections to the bill.
In conclusion, the amendments in this bill reflect the government’s strong commitment to ensuring that the federal civil justice system is operating as efficiently and effectively as possible and is responsive to the needs of litigants. I commend this bill to the Senate.
Question agreed to.
Bill read a second time.
Bill—by leave—taken as a whole.
by leave—I move government amendments (1) to (18) together and table a supplementary explanatory memorandum relating to the government amendments moved to this bill as circulated to the chamber earlier today:
(1) Clause 2, page 2 (table items 3 to 5), omit the table items, substitute:
3. Schedule 5 | The 28th day after this Act receives the Royal Assent. |
(2) Schedule 2, item 2, page 6 (line 12), omit “had been made by”, substitute “were a judgment or order of”.
(3) Schedule 2, item 4, page 6 (lines 22 and 23), omit “had been made by”, substitute “were a judgment or order of”.
(4) Schedule 5, page 12 (after line 11), after item 1, insert:
1A Subsection 90G(1)
Omit “A”, substitute “Subject to subsection (1A), a”.
(5) Schedule 5, item 2, page 12 (lines 14 to 22), omit paragraph 90G(1)(b), substitute:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(6) Schedule 5, page 12 (after line 26), after item 4, insert:
4A After subsection 90G(1)
Insert:
(1A) A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90KA applies in relation to the enforcement application.
4B Subsection 90J(2)
Omit “A”, substitute “Subject to subsection (2A), a”.
(7) Schedule 5, item 5, page 12 (line 29) to page 13 (line 5), omit paragraph 90J(2)(b), substitute:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(8) Schedule 5, page 13 (after line 9), after item 7, insert:
7A After subsection 90J(2)
Insert:
(2A) A termination agreement is binding on the parties if:
(a) the agreement is signed by all parties to the agreement; and
(b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (2B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been set aside by a court.
(2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a termination agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
(2C) To avoid doubt, section 90KA applies in relation to the enforcement application.
(9) Schedule 5, item 8, page 13 (line 11), omit “2 to 7”, substitute “1A to 7A”.
(10) Schedule 5, page 13 (after line 16), at the end of item 8, add:
(3) If, before the commencement of this item, a court has made an order under section 79 or 83 of the Family Law Act 1975 on the basis that an agreement did not bind the spouses, then, after the commencement of this item, the agreement is taken not to bind them.
(4) For a financial agreement made before 14 January 2004, paragraph 90G(1)(b) of the Family Law Act 1975, as inserted by item 2 of this Schedule, does not apply and the following paragraph 90G(1)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about:
(i) the effect of the agreement on the rights of that party; and
(ii) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
(iii) whether or not, at that time, it was prudent for that party to make the agreement; and
(iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and
(5) For a termination agreement made before 14 January 2004, paragraph 90J(2)(b) of the Family Law Act 1975, as inserted by item 5 of this Schedule, does not apply and the following paragraph 90J(2)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about:
(i) the effect of the agreement on the rights of that party; and
(ii) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
(iii) whether or not, at that time, it was prudent for that party to make the agreement; and
(iv) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and
(6) For a financial agreement made before the commencement of this item, paragraphs 90G(1)(c) and (ca) of the Family Law Act 1975, as inserted by item 2 of this Schedule, do not apply.
(7) For a financial agreement made before the commencement of this item, paragraph 90G(1A)(b) of the Family Law Act 1975, as inserted by item 4A of this Schedule, does not apply and the following paragraph 90G(1A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (1)(b) is not satisfied in relation to the agreement; and
(8) For a termination agreement made before the commencement of this item, paragraphs 90J(2)(c) and (ca) of the Family Law Act 1975, as inserted by item 5 of this Schedule, do not apply.
(9) For a termination agreement made before the commencement of this item, paragraph 90J(2A)(b) of the Family Law Act 1975, as inserted by item 7A of this Schedule, does not apply and the following paragraph 90J(2A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (2)(b) is not satisfied in relation to the agreement; and
(11) Schedule 5, Part 1, page 13 (after line 16), at the end of the Part, add:
8A Transitional—agreements made on or after 14 January 2004 and before commencement
(1) Subitems (2) and (3) apply in relation to a financial agreement made on or after 14 January 2004 and before the commencement of this item.
(2) Paragraph 90G(1)(b) of the Family Law Act 1975, as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
(a) the effect of the agreement on the rights of that party; and
(b) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
(c) whether or not, at that time, it was prudent for that party to make the agreement; and
(d) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
(3) Paragraph 90G(1)(c) of the Family Law Act 1975, as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (2) of this item.
(4) Subitems (5) and (6) apply in relation to a termination agreement made on or after 14 January 2004 and before the commencement of this item.
(5) Paragraph 90J(2)(b) of the Family Law Act 1975, as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:
(a) the effect of the agreement on the rights of that party; and
(b) whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and
(c) whether or not, at that time, it was prudent for that party to make the agreement; and
(d) whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
(6) Paragraph 90J(2)(c) of the Family Law Act 1975, as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (5) of this item.
(7) This item does not apply in relation to an agreement if, before the commencement of this item, a court has made an order setting aside the agreement.
(12) Schedule 5, page 14 (after line 10), after item 9, insert:
9A Subsection 90UJ(1)
Omit “A”, substitute “Subject to subsection (1A), a”.
(13) Schedule 5, item 10, page 14 (lines 13 to 21), omit paragraph 90UJ(1)(b), substitute:
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(14) Schedule 5, page 14 (after line 25), after item 12, insert:
12A After subsection 90UJ(1)
Insert:
(1A) A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90UN applies in relation to the enforcement application.
12B Subsection 90UL(2)
Omit “A”, substitute “Subject to subsection (2A), a”.
(15) Schedule 5, item 13, page 14 (line 28) to page 15 (line 4), omit paragraph 90UL(2)(b), substitute:
(b) before signing the termination agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the termination agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the termination agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the termination agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(16) Schedule 5, page 15 (after line 8), after item 15, insert:
15A After subsection 90UL(2)
Insert:
(2A) A Part VIIIAB termination agreement is binding on the parties if:
(a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and
(b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the termination agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the termination agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (2B) declaring that the termination agreement is binding on the parties to the agreement; and
(e) the termination agreement has not been set aside by a court.
(2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a Part VIIIAB termination agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
(2C) To avoid doubt, section 90UN applies in relation to the enforcement application.
(17) Schedule 5, item 17, page 15 (line 26), omit “10 to 15”, substitute “9A to 15A”.
(18) Schedule 5, page 15 (after line 34), at the end of item 17, add:
(3) If, before the commencement of this item, a court has made an order under section 90SI or 90SM of the Family Law Act 1975 on the basis that an agreement did not bind the spouse parties, then, after the commencement of this item, the agreement is taken not to bind them.
(4) For an agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 before the commencement of this item, paragraphs 90UJ(1)(c) and (ca) of the Family Law Act 1975, as inserted by item 10 of this Schedule, do not apply.
(5) For an agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 before the commencement of this item, paragraph 90UJ(1A)(b) of the Family Law Act 1975, as inserted by item 12A of this Schedule, does not apply and the following paragraph 90UJ(1A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (1)(b) is not satisfied in relation to the agreement; and
(6) For a Part VIIIAB termination agree-ment made before the commencement of this item, paragraphs 90UL(2)(c) and (ca) of the Family Law Act 1975, as inserted by item 13 of this Schedule, do not apply.
(7) For a Part VIIIAB termination agreement made before the commencement of this item, paragraph 90UL(2A)(b) of the Family Law Act 1975, as inserted by item 15A of this Schedule, does not apply and the following paragraph 90UL(2A)(b) of that Act is taken to have been inserted by that item and to apply instead:
(b) paragraph (2)(b) is not satisfied in relation to the agreement; and
Question agreed to.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.
I move:
That this bill be now read a third time.
Question agreed to.
Bill read a third time.
I move:
That the Senate do now adjourn.
Today is Pink Ribbon Day and in this month, October, we highlight the incidence of breast cancer and the initiatives in Australia to combat this problem and to support the people and families affected by it. Each year between 12,600 and 13,000 women are diagnosed as having breast cancer and, according to the Breast Cancer Network Australia, this number is rising. It is thought that one woman in nine will develop breast cancer, with the figure for the ACT being one in six women.
Both research and support initiatives are vital to combating this most common cause of cancer related death of Australian women. So this government, working with the established cancer organisations, provides funding for continuing and new programs. In August the government announced that more than $2.7 million of new federal funding would enable the National Breast and Ovarian Cancer Centre, together with Breast Cancer Network Australia, to deliver practical help to rural breast cancer sufferers, their families and carers. Online programs will enable rural health professionals, including Indigenous health workers, to access information on the latest treatments and programs and will enable communication between patients and their families. This will complement the other government funded programs, which include: $120 million for BreastScreen Australia for the latest digital mammography equipment; $168 million for continued funding of the Herceptin program; $31 million over five years for reimbursements for breast prostheses; $28 million for other breast cancer measures, including $12 million for the McGrath Foundation for breast care nurses in 44 communities; and, finally, Labor’s $560 million for a network of 10 best-practice regional cancer centres.
The government supports not only research into the causes, prevention and detection of cancer but also beneficial treatment programs. The National Breast Cancer Foundation, NBCF, relies on both government and community funding for its research programs and recently announced that, since 1994, it had expended a total of $55 million across 230 research programs. One groundbreaking development which has recently gained publicity has been from one research program funded by the NBCF. A team from the Walter and Eliza Hall Institute of Medical Research has made a breakthrough in furthering understanding of the specific gene mutation which makes some women more at risk of developing breast cancer. Researchers have found a population of breast cells which could be responsible for the breast cancers which develop in women carrying BRCA1 gene mutations. These gene mutations are found in 10 to 20 per cent of women with hereditary breast cancer, and they often develop a particularly aggressive form of the disease.
Research published in the international journal Nature Medicine represents a major shift in the way breast cancer is understood to develop and points to a new avenue for targeted treatments, or tailored therapies, for the next generation. Through such research projects, and through this government’s commitment, Australia makes a major contribution to the international effort towards understanding and combating cancer. Professor David Hill AO, Director of the Cancer Council of Victoria, is currently serving as president of the International Union Against Cancer. This is a non-government, independent association with member organisations in over 90 countries. Its objectives are to advance scientific and medical knowledge in research, diagnosis, treatment and prevention of cancer and to promote this campaign worldwide. Professor Hill has said that governments around the world that focus on cancer prevention campaigns will potentially save the lives of millions of people. In addition, as more cancers are prevented, pressures on healthcare systems should decrease.
I have already mentioned one project but, at present, a good deal of research on the causes of breast cancer, which is taking place in Australia and in other countries, focuses on the study of genes and genetic mutations. If we can identify the causes of cancer, we can go a long way towards developing individually tailored, effective treatments. Breast Cancer organisations and representative bodies in Australia are taking a keen interest in the current inquiry by the Senate Community Affairs References Committee into the impact of gene patents on the provision of health care in Australia. The Senate inquiry was prompted by concerns, particularly from breast and ovarian cancer groups, over the exclusive licence held by a private company for the testing of BRCA1 and BRCA2 gene mutations. In 2008 the company decided to enforce its right under licence to be the sole provider of this testing. Although the company then retreated from this position, the fear was created that a monopoly on gene testing could be imposed at any time. At least six of the current research projects funded through the National Breast Cancer Foundation involve gene or gene mutation studies. The NBCF sees dangers in such ownership or monopoly situations not only from the point of view of the inhibiting of research but also from the perspective of the possible absence of risk assessment and counselling in the testing process.
In the United States patents have been granted for about 20 per cent of human genes. In May this year the American Civil Liberties Union and others—including scientific organisations, medical professionals, researchers, and breast cancer and women’s health groups—filed a lawsuit against the United States Patent and Trademark Office, charging that patents on two human genes associated with breast and ovarian cancer, BRCA1 and BRCA2, are unconstitutional and invalid. Points made in the US case were: further scientific research on gene mutation or the development of alternative diagnostic methods could be delayed, limited or prevented; only one company was entitled to perform the diagnostic testing, and women would be unable to get a second opinion; the cost of the tests could well be unaffordable for many; and the funding for the initial research which led to the development of these tests was from public funding agencies. A ruling on whether this lawsuit is to proceed is due later this month. These points are now also being made to the current Senate inquiry.
Patents are granted on a country-by-country basis. Apparently the Melbourne private company, Genetic Technologies Limited, has a commercial licensing agreement with the US firm Myriad, which allows it to have the exclusive Australian rights to diagnostic testing for the gene mutations associated with breast and ovarian cancer. Many of the submissions to the Senate inquiry have come from those likely to be most affected by any exercising of a monopoly over human gene sequences. They include Breast Cancer Network Australia, which is the peak organisation for Australians personally affected by breast cancer, the Breast Cancer Action Group NSW, a joint submission from the Cancer Council Australia and the Clinical Oncological Society of Australia, and others representing doctors, pathologists and researchers. A thoughtful submission has been made by my colleague the member for Fremantle, Melissa Parke, MP. Submissions from the cancer and health organisations have urged, in the words of the joint submission from the Cancer Council Australia and COSA:
… the only efficient, permanent way to ameliorate the numerous adverse impacts around gene patenting before the technology evolves further is to exclude genes from the definition of patentable material.
The Senate Community Affairs References Committee has been commended in many of the submissions for tackling such an important and timely inquiry. Developments in genetic science and the new directions in breast cancer research make it essential that we tackle issues with foresight and with regard to the needs of our future wellbeing. I look forward, as I am sure we all do, to the committee’s findings and recommendations, and I congratulate the organisations for their reasoned and detailed submissions.
On this Pink Ribbon Day I would like to reflect, just in the few minutes I have remaining to speak, on some of the events that occurred over the weekend. I am a patron of Dragons Abreast here in the ACT and was very proud to be asked to participate in the wonderful Dragons Abreast dragon boat regatta held in Lake Burley Griffin this Saturday past. The Canberra weather was kind to us and it was the most glorious spring day. Not only was the program so wonderfully put together that it ran ahead of schedule but also it permitted everybody to participate in a final of one sort or another. I was there to help hand out the prizes. I would like to take this opportunity to thank all of the wonderful women involved in Dragons Abreast here in Canberra, and indeed around Australia, for the energy and commitment they have to an organisation that celebrates the life of cancer survivors and supports those who are still fighting their battles. I would also like to mention the Pink Ribbon Motorcycle Ride, organised by Canberra group Girls on the Move—a group of motorcycle riders who dressed up their motorbikes in glorious pink yesterday—culminating in a wonderful barbecue at Weston Park and again raising money for breast cancer research.
I rise this evening to also talk on Pink Ribbon Day, the national breast cancer day. It is a time to raise awareness and to reflect on the impact this disease has on our community. It is vitally important that we continue to show our support for women with breast cancer, during the month October and throughout the rest of the year. Each day, 36 Australian women will be told that they have breast cancer and seven women will lose their lives to this disease. Breast cancer is the most common invasive cancer amongst Australian women and continues to steadily increase, with 14,800 women expected to be diagnosed in 2011.
There are four main breast cancer organisations in Australia and this often can lead to confusion in the community as to what each of these organisations does and what their role is. We are increasingly swimming in a sea of pink during breast cancer month—which is fantastic—however, we must also use this opportunity of increased awareness to ensure we are getting the message right and to maximise the value of the funds which are being raised.
I would first like to speak about Breast Cancer Network Australia, which is depicted by the pink lady silhouettes which you will have seen in the fields of women. They also have mini fields of women, which I had the privilege of organising in my own hometown of Kojonup. Today I wear the pink lady silhouette survivors broach, which I am very proud of. As a breast cancer survivor I really felt it was very important to speak this evening about the wonderful things that are being done and to give hope to all those people who have been in the same situation as me.
Breast Cancer Network Australia is the peak national organisation for Australians who are personally affected by breast cancer. Before I entered parliament I was one of their consumer participants and worked very hard to raise awareness of breast cancer. Breast Cancer Network Australia prides itself on empowering, informing, representing and linking together people whose lives have been affected by breast cancer. It works to ensure that women who have been diagnosed with breast cancer, and their families, receive the very best information available and the best treatment, care and support possible—no matter who they are or where they live. This ready support and care base is an invaluable resource for people confronted with the traumatic experience of a breast cancer diagnosis.
Breast Cancer Network Australia’s free resources, the ‘My Journey Kit’ for women with early breast cancer and the ‘Hope and Hurdles Pack’ for women with secondary breast cancer, are great practical examples of how women can support each other and help those women who have been diagnosed with breast cancer. I am proud to be a member of Breast Cancer Network Australia, which is a major force in Australia and is driven by women with breast cancer. BCNA demonstrates that women can be empowered through their journey and that they can use this strength to assist, support and advocate for other women.
After being diagnosed with early breast cancer in 1998, last Christmas I was re-diagnosed with metastatic breast disease. Just to say how difficult it is, your whole world is turned upside down. But I think the support of Breast Cancer Network Australia and all the support of my friends and my colleagues here has given me the opportunity to really get up and fight and think about where it is all going. I have a quote here which I think is really good:
Diagnosis of metastatic breast cancer is not the end of the road. It is the start of a new journey. Some days you will be filled with fear and uncertainty. This is to be expected. Honour your feelings—they are valid—and always remember tomorrow is another day. Do not let anyone take away your hope. Remember you are not a statistic or a number but a woman alive and kicking.
I certainly hope that I can reflect that saying, which was from a breast cancer survivor, a member of Breast Cancer Network Australia.
I would now like to speak about Pink Ribbon Day. This is an emblem of the National Breast Cancer Foundation. They are a community funded organisation which leads the way in raising money for research into the prevention, detection and treatment of breast cancer. They have funded an astounding $55 million worth of research across 230 programs since 1994. This year the National Breast Cancer Foundation are participating in celebrating the 10th anniversary of the Global Illumination initiative. I am sure a number of you will have seen all the different landmarks illuminated in pink during the month of October. Along with raising funds for vital research, Global Illumination is a unique way to shine the spotlight on breast cancer, linking countries around the world in a shared desire to find a cure. This year, over 200 landmarks around the world have been illuminated pink as part of Breast Cancer Month.
Australia has led the Global Illumination celebrations, and the diversity of pink monuments shows how widely breast cancer affects communities. Monuments have been lit up pink across Australia, including Parliament House here in Canberra, the Story Bridge in Brisbane, Federation Square in Melbourne, the lifeguard tower on Bondi Beach and Kings Park in Perth. Other landmarks in my home state of Western Australia that have been lit up in pink are the big Perth Wheel on our foreshore, Perth Concert Hall, Winthrop Hall at UWA and the Swan Bells. Global Illumination raises awareness along with raising funds vital for breast cancer research, leading to improved treatment options and better outcomes for women.
As time is rushing on, I would like to speak about the National Breast and Ovarian Cancer Centre. It started as the National Breast Cancer Centre in 1995 and gained the additional remit of ovarian cancer in 2001—and a number of senators were very involved in making this happen through our community affairs committee. Next year will be the 15th year of this important Australian cancer organisation, which predominantly receives its funding from the federal government. Additional funding comes from corporates and the National Breast Cancer Foundation, which I have just spoken of. Small amounts of funding come from donations and time limited government and other agency grants. However, approximately two-thirds of current resources are from core government funding. Dr Helen Zorbas described to Senate estimates last week the work that the centre is doing, and I would suggest that people have a look at that transcript, because it is absolutely amazing to see where it has come in the short time that it has been in existence.
I would also like to speak about the McGrath Foundation. They have done a magnificent job of raising funds to build a network of breast care nurses throughout Australia and, most importantly, in rural areas of Australia. Breast care nurses are specially trained registered nurses who act as patient advocates. They coordinate care for women with breast cancer, their families and their carers and provide accurate information, support and referral to services. Each McGrath breast care nurse is employed full time at a cost of approximately $350,000 over a minimum three-year period. The network is continuing to grow and is a vital service to rural women with breast cancer. Jane McGrath was aged 31 when she was first diagnosed with breast cancer, and to echo her words:
Breast cancer doesn’t care how old you are, where you live, whether you’re a career woman or a mother.
On that, I think I will finish.
Recently in this place I spoke about a subject which I know is of profound importance to all of us: the paramount need for our children to be safe. However, before I address that topic this evening I would like to acknowledge that today is Pink Ribbon Day. This annual day has become a very important spotlight on an insidious, indiscriminate disease that has touched many, many Australian families. Breast cancer steals the lives of more than 2½ thousand Australian women each year. Each year a further 12,000 Australian women are diagnosed with this dreadful disease.
Australia has a good record of breast cancer management, but every life lost is one too many. It is the loss of a mother, a sister, a grandmother, a daughter, a niece, a family member or friend. That is why the Rudd government has backed and is continuing to support a range of breast cancer awareness, diagnosis and treatment programs and initiatives, and that is why we should all be aware and encourage our colleagues, neighbours, friends, sisters, mothers, cousins and aunts to check themselves and be checked for breast irregularities.
I now move onto the matter I spoke about in September in this place in the context of National Child Protection Week and National White Balloon Day. I am returning to this topic because time is running out to take part in an online survey launched by the National Association for the Prevention of Child Abuse and Neglect, or NAPCAN, last month. The survey aims to uncover abuse, abuse so often concealed by fear, ignorance, denial or even, staggeringly, disinterest in stopping abuse and to prevent it from happening in the future. This survey closes at the end of Children’s Week on Sunday, 1 November 2009. The survey will provide NAPCAN and its partners with extremely valuable information—information which will facilitate the planning of effective, targeted strategies to prevent child abuse and neglect.
The survey takes less than 15 minutes to complete. It is anonymous, confidential and easy to follow. Ethics approval has been obtained and responses are handled with integrity and respect. As I have indicated, the information gathered will be invaluable in devising and implementing protection and prevention strategies. Designed by six leading researchers who have generously given their time and expertise to the cause, it is federally funded by way of the COAG endorsed National Framework for Protecting Australia’s Children (2009-2020). The national framework is an ambitious, long-term approach to ensuring the safety and welfare of all Australian children. It is supported by all levels of government.
Businesses, government departments, unions, media and community groups have committed themselves to completing the quest-ionnaire, which may well become the largest study of community attitudes ever under-taken across our community. I urge all who have not already done so to ensure they complete the survey at www.preventingchildabuse.com.au because every response will make a difference.
To make clear why this survey is so important, it is well worth reiterating the appalling statistic that I quoted from NAPCAN last time, which is that 30,000 children have been found to be abused or neglected in the past year. That same independent body has also revealed that, over the same 12 months, hundreds of children died, thousands of children were injured to a serious extent and tens of thousands of children were physically, psychologically and emotionally damaged.
Experts tell us that there are two additional forms of child abuse. These are neglect and the witnessing of family violence. The impact of these forms of abuse on their victims may be equally as profound and long lasting. Research shows us that child abuse is rarely a single event. It is, however, inevitably harmful. The damage caused can last a lifetime. Research has also found that child abuse increases the risk of substance addiction, crime, homelessness, poor physical health, educational failure, poor employment futures, depression and suicide risk.
NAPCAN aims to prevent child abuse and neglect before it starts. It aims to do this by giving practical advice and support to children and parents, strengthening social connectivity in communities, raising public awareness of the issues and sharing knowledge and expertise in promoting best practice in the area. The calibre of NAPCAN, its supporters and partners is commensurate with the importance of the issue at hand. Partners and supporters include the Department of Families, Housing, Community Services and Indigenous Affairs, the University of Western Sydney, Family Relationship Services Australia, the Australian Institute of Criminology, the Australian Research Alliance for Children & Youth, Families Australia, Good Beginnings Australia, the Australian Childhood Foundation, Defence for Children International-Australia, and Curtin University of Technology. They also include marketing agency Profero, Sydney based public relations agency Avviso and, I am very proud to say, the University of South Australia’s Australian Centre for Child Protection, which is funded through the Department of Innovation, Industry, Science and Research and headed by the distinguished academic Professor Dorothy Scott.
The perpetration of abuse and violence can carry on through generations. It is not associated with a particular socioeconomic stratum, colour, religion or gender. It can happen anywhere, at any time and to any child. That is why senators and members of all political persuasions support NAPCAN. We do this through membership of Parliamentarians Against Child Abuse and Neglect—PACAN. It is as a member of PACAN that I have brought this matter to the attention of senators again this evening.
Sunday, 1 November is fast approaching. So please encourage others—and do it yourself—to log on to www.preventingchildabuse.com.au and take part in this ground-breaking survey.
The following documents were tabled by the Clerk:
[Legislative instruments are identified by a Federal Register of Legislative Instruments (FRLI) number]
A New Tax System (Goods and Services Tax) Act—A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination MSV 2009/1 [F2009L03954]*.
Acts Interpretation Act—Statements pursuant to subsection 34C(6) relating to the extension of specified period for presentation of reports—
Australian Curriculum, Assessment and Reporting Authority—Report for 2008-09.
Crimes Act 1914Controlled Operations—Report for 2008-09.
Aged Care Act—
Aged Care (Residential care subsidy – amount of accommodation supplement) Determination 2009 (No. 2) [F2009L03565]*.
Aged Care (Residential care subsidy – amount of concessional resident supplement) Determination 2009 (No. 2) [F2009L03564]*.
Aged Care (Residential care subsidy – amount of hardship supplement) Determination 2009 (No. 1) [F2009L03556]*.
Aged Care (Residential care subsidy – amount of pensioner supplement) Determination 2009 (No. 2) [F2009L03560]*.
Aged Care (Residential care subsidy – amount of respite supplement) Determination 2009 (No. 2) [F2009L03563]*.
Aged Care (Residential care subsidy – amount of transitional accommodation supplement) Determination 2009 (No. 2) [F2009L03562]*.
Aged Care (Residential care subsidy – amount of transitional supplement) Determination 2009 (No. 2) [F2009L03561]*.
Residential Care Subsidy Amendment Principles 2009 (No. 1) [F2009L03558]*.
User Rights Amendment Principles 2009 (No. 2) [F2009L03559]*.
User Rights Amendment Principles 2009 (No. 3) [F2009L03567]*.
Air Navigation Act—Select Legislative Instrument 2009 No. 274—Air Navigation Amendment Regulations 2009 (No. 2) [F2009L03775]*.
Appropriation Act (No. 3) 2006-2007Determination to Reduce Appropriations Upon Request (No. 1 of 2009-2010) [F2009L03843]*.
Appropriation Act (No. 3) 2008-2009Determination to Reduce Appropriations Upon Request (No. 2 of 2009-2010) [F2009L03844]*.
Australian Capital Territory (Planning and Land Management) Act—National Capital Plan—Amendment 57—Blocks 12 & 13 Section 9 Barton [F2009L03763]*.
Australian Citizenship Act—Instruments IMMI—
09/087—Instrument of Authorisation [F2009L03969]*.
09/095—Special Residence Requirement [F2009L03608]*.
Australian National University Act—Programs and Awards Statute 2006—Examination Rules (No. 2) 2009 [F2009L03720]*.
Australian Organ and Tissue Donation and Transplantation Authority Act—Select Legislative Instrument 2009 No. 269—Australian Organ and Tissue Donation and Transplantation Authority Regulations 2009 [F2009L02965]*.
Australian Participants in British Nuclear Tests (Treatment) Act—Instrument No. R47/2009—Treatment Principles (Australian Participants in British Nuclear Tests) 2006 (HomeFront – Frequency of Subsidy) Instrument 2009 [F2009L03959]*.
Australian Prudential Regulation Authority Act—Australian Prudential Regulation Authority (Confidentiality) Determinations Nos—
15 of 2009—Information provided by locally-incorporated banks and foreign ADIs under Reporting Standard ARS 320.0 [F2009L03636]*.
16 of 2009 [F2009L03841]*.
Australian Research Council Act—Approval of Proposals—ARC Future Fellowships commencing in 2009.
Aviation Transport Security Act and Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act—Select Legislative Instrument 2009 No. 275—Aviation Transport Security Amendment Regulations 2009 (No. 4) [F2009L03774]*.
Broadcasting Services Act—Variation to Licence Area Plan for Launceston Radio – No. 1 of 2009 [F2009L03738]*.
Civil Aviation Act—
Civil Aviation Regulations—Instruments Nos CASA—
405/09—Direction under regulation 209 – conduct of parachute training operations [F2009L03395]*.
415/09—Instructions – for approved use of P-RNAV procedures [F2009L03493]*.
422/09—Instructions – use of RNAV (GNSS) approaches by RNP-capable aircraft [F2009L03508]*.
423/09—Instructions – use of RNAV (GNSS) approaches by RNP-capable aircraft [F2009L03519]*.
427/09—Direction – number of cabin attendants [F2009L03542]*.
428/09—Direction – number of cabin attendants [F2009L03552]*.
429/09—Direction – number of cabin attendants [F2009L03566]*.
437/09—Direction – to investigate major defects in Dornier 328-100 aircraft and report to CASA [F2009L03620]*.
441/09—Revocation of direction – parachute operations in the vicinity of Barwon Heads aerodrome [F2009L03633]*.
EX64/09—Exemption – earth point at fuelling site [F2009L03144]*.
EX67/09—Exemption – recent experience requirements [F2009L03223]*.
EX69/09—Exemption – from standard take-off minima [F2009L03527]*.
EX72/09—Exemption – earth point at fuelling site [F2009L03495]*.
EX73/09—Exemption – from take-off minima inside and outside Australian territory [F2009L03507]*.
EX74/09—Exemption – from take-off minima inside and outside Australian territory [F2009L03517]*.
EX77/09—Exemption – flight and navigation equipment [F2009L03601]*.
EX78/09—Exemption – use of mobile phones and other electronic devices when loading fuel [F2009L03602]*.
EX79/09—Exemption – take-off with residual traces of frost and ice [F2009L03630]*.
EX80/09—Exemption – flight data recording [F2009L03631]*.
EX83/09—Exemption – carriage of passengers on EADS CASA 212-400 aircraft within Antarctica [F2009L03744]*.
EX85/09—Amendment of instrument CASA EX79/09 – Exemption – take-off with residual traces of frost and ice [F2009L03856]*.
Civil Aviation Safety Regulations—
Airworthiness Directives—
AD/B737/339 Amdt 1—Elevator Tab Pushrod Ends [F2009L03883]*.
AD/BAe 146/133 Amdt 1—Airworthiness Limitations [F2009L03964]*.
AD/BAe 146/139—Aileron Interconnect Cable Pulley Guards [F2009L03848]*.
AD/BAe 146/140—Airbrake Lever Detent Mechanism [F2009L03896]*.
AD/CL-600/78 Amdt 1—Engine Throttle Control Gearbox [F2009L03898]*.
AD/CL-600/123—Wing Anti-Ice System – Outboard Low-Heat Detection Switches [F2009L03904]*.
AD/EC 135/23—Time Limits / Maintenance Checks [F2009L03847]*.
AD/F100/86—Flight Controls – Horizontal Stabiliser Control Unit [F2009L03967]*.
AD/TBM 700/41 Amdt 1—Pilot Door Locking Fittings [F2009L03965]*.
Part—
105—
AD/A320/2—Ram Air Turbine Airborne Ground Checkout Module (AGCM) [F2009L03458]*.
AD/A320/6—Engine/APU Fire Control Panel [F2009L03779]*.
AD/A320/10—Standby Pitot Line [F2009L03780]*.
AD/A330/32 Amdt 4—Main Landing Gear Retraction Actuator Piston Rod [F2009L03781]*.
AD/A330/107—Air Cooling Heat Shield Holes [F2009L03457]*.
AD/A330/109—Pitot Probe Quick-Disconnect Union [F2009L03635]*.
AD/AT 600/4 Amdt 4—Engine Mount [F2009L03644]*.
AD/AT 800/12—Rudder-Aileron Interconnect Cable Shield [F2009L03464]*.
AD/AT 800/9 Amdt 4—Engine Mount [F2009L03771]*.
AD/ATR 42/27—Multi Purpose Computer with Aircraft Performance Monitoring Function [F2009L03768]*.
AD/B737/250 Amdt 2—Forward Entry Door Forward and Aft Side Intercostals [F2009L03402]*.
AD/B737/354 Amdt 1—Fwd Cargo Compartment Frames and Frame Reinforcements [F2009L03571]*.
AD/B737/360—P5-14 Panel [F2009L03766]*.
AD/B737/361—Rudder Feel and Centering Unit [F2009L03782]*.
AD/B747/163 Amdt 4—Fuselage Internal Structure [F2009L03645]*.
AD/B747/288 Amdt 1—Vertical Stabiliser and Fuselage Skin Interface [F2009L03400]*.
AD/B747/397—Fuselage Section 41 Frames [F2009L03784]*.
AD/B767/10—Main Landing Gear Shock Strut [F2009L03646]*.
AD/B767/11—Main Landing Gear Drag Brace Upper Spindle [F2009L03647]*.
AD/B767/42—Fuel Tank Access Doors [F2009L03648]*.
AD/B767/64—Fire Protection – Detection – Smoke Detector Inspection [F2009L03757]*.
AD/B767/155—P37 Panel – Electrical Wire Bundle Inspection and Protection [F2009L03760]*.
AD/B767/193 Amdt 1—P37 Panel – Electrical Wire Bundles [F2009L03758]*.
AD/B767/253—Fuel Tanks Ignition Source Prevention [F2009L03785]*.
AD/BEECH 23/40—Horizontal Stabiliser Aft Centre Spar [F2009L03459]*.
AD/BEECH 23/41—Firewall and FS 68.00 Frame [F2009L03460]*.
AD/BEECH 55/9 Amdt 2—Rudder Spar and Hinges [F2009L03383]*.
AD/BEECH 300/4—Cabin Door [F2009L03650]*.
AD/BEECH 1900/3—Wing Fasteners [F2009L03649]*.
AD/BEECH 1900/5—Right Circuit Breaker Wire Bundle Clamp [F2009L03761]*.
AD/BEECH 1900/11—Fuselage Canted Bulkhead [F2009L03384]*.
AD/BEECH 1900/30—Electrical Loom Inspection [F2009L03762]*.
AD/BELL 206/176 Amdt 1—Cyclic Control Lever Assembly Installation [F2009L03718]*.
AD/BELL 206/179—Main Rotor Pitch Horn Bearing [F2009L03756]*.
AD/BELL 212/28 Amdt 2—Vertical Fin Forward Spar [F2009L03786]*.
AD/BELL 407/32 Amdt 1—Cyclic Control Lever Assembly Installation [F2009L03719]*.
AD/BELL 427/12—Cyclic Control Lever Assembly Installation [F2009L03805]*.
AD/CESSNA 550/6 Amdt 2—Tailcone Skin and Vertical Fin Spar Interference [F2009L03811]*.
AD/CESSNA 550/7—Anti-Skid Control Box – Modification [F2009L03810]*.
AD/CL-600/9—Junction Box No. 2 – Vertical Navigation and Glide Slope Relay – Modification [F2009L03822]*.
AD/CL-600/10—Autopliot Duplex Servo – Installation of Protective Cover [F2009L03672]*.
AD/CL-600/11—Stick Pusher – Inspection and Modification [F2009L03671]*.
AD/CL-600/13 Amdt 1—Brake Control Push-Pull Cable [F2009L03670]*.
AD/CL-600/14—Engine Pylon Fuel Feed Tube Assembly – Modification [F2009L03669]*.
AD/CL-600/17—Flight Controls – Elevator Cable Inspection [F2009L03643]*.
AD/CL-600/80 Amdt 1—Air Supply Duct Flanges [F2009L03446]*.
AD/CL-600/117—Aft Cargo Compartment Blowout Panel Protective Cages [F2009L03369]*.
AD/CL-600/118—Bulkhead Check Valves [F2009L03445]*.
AD/CL-600/119—Power Control Unit Rod Centering Mechanism [F2009L03444]*.
AD/CL-600/119 Amdt 1—Power Control Unit Rod Centering Mechanism [F2009L03390]*.
AD/CL-600/120—Angle of Attack Transducer [F2009L03751]*.
AD/CL-600/121—Stick Pusher Capstan Shaft [F2009L03824]*.
AD/CL-600/122—Thrust Reverser Transcowl Assembly [F2009L03825]*.
AD/DHC-8/120 Amdt 1—Power Transfer Unit Overspeed [F2009L03830]*.
AD/DHC-8/150—Nose Landing Gear Pivot Retention Bolt [F2009L03441]*.
AD/DHC-8/151—Spoiler Upload Valves and Rudder Shutoff Valves [F2009L03440]*.
AD/DHC-8/152—Series 400 Door Stops [F2009L03828]*.
AD/DO 328/71 Amdt 1—Wing Lower Inner Panel [F2009L03651]*.
AD/DO 328/74—Engine Controls – Power Lever Control Box [F2009L03831]*.
AD/EC 135/21 Amdt 2—Rear Structure / Tail Boom [F2009L03832]*.
AD/ERJ-190/23—Deployment Failure – Escape Slide [F2009L03652]*.
AD/F27/10—VHF Antennae – Reposition [F2009L03755]*.
AD/F27/21—Aileron Control Wheel – Inspection of Washers [F2009L03653]*.
AD/F27/26—RPM Control System – Gustlock Interference System – Improvement [F2009L03654]*.
AD/F27/27—RPM Indicator – Dial Markings [F2009L03754]*.
AD/F27/31—Ducting in Air Conditioning Compartment – Support Bracket – Introduction [F2009L03655]*.
AD/F27/34—Pitot Static System – Modification [F2009L03753]*.
AD/F27/38—ADF Sense Antenna – Modification [F2009L03752]*.
AD/F27/46—Autopilot Servo Rod [F2009L03656]*.
AD/F27/62 Amdt 2—Godfrey Engine Driven Cabin Supercharger Drive Quill Shaft – Modification [F2009L03750]*.
AD/F27/66—Engine Breather RIP Overheat Detectors – Modification [F2009L03749]*.
AD/F27/70—Main Pneumatic Line – Modification [F2009L03748]*.
AD/F27/88—Emergency Light – Modification [F2009L03747]*.
AD/F27/93—Nose Gear Down Lock Latch – Inspection [F2009L03746]*.
AD/F27/99—Passenger Door Outboard Lettering – Emergency Operating Instructions Changed [F2009L03745]*.
AD/F27/103 Amdt 8—Structural Limitations [F2009L03657]*.
AD/F27/104 Amdt 1—Main Undercarriage Drag Stay – Inspection [F2009L03659]*.
AD/F27/106—Elevator: Inboard Trim Tab Hinge Bracket and Control Bracket – Inspection [F2009L03660]*.
AD/F100/92—Engine Controls – Fuel Fire Shut-off Valve Actuator [F2009L03438]*.
AD/F100/95—Fuel Fire Shut-off Valve Actuator [F2009L03437]*.
AD/G164/5 Amdt 2—Elevator Torque Tubes – Inspection [F2009L03365]*.
AD/GAF-N22/69 Amdt 6—Ailerons [F2009L03661]*.
AD/GBK 117/6 Amdt 6—Main Rotor Blade [F2009L03833]*.
AD/HILLER 12/10—Main Rotor Blades – Inspection and Modification [F2009L03662]*.
AD/HU 269/14—Battery Support Bracket – Inspection [F2009L03663]*.
AD/HU 269/16 Amdt 4—Horizontal Stabiliser – Inspection [F2009L03664]*.
AD/HU 269/18—Tail Boom – Inspection [F2009L03666]*.
AD/HU 369/8—Tail Rotor Blades – Inspection [F2009L03363]*.
AD/HU 369/48 Amdt 1—Main Rotor Lead-Lag Bolts – Inspection for Corrosion [F2009L03362]*.
AD/HU 369/85 Amdt 1—Main Rotor Blade Root Replacement [F2009L03667]*.
AD/JBK 117/34—Rescue Hoist Assembly [F2009L03834]*.
AD/JETSTREAM/95 Amdt 3—Steering Actuator Piston Rod Cracking [F2009L03436]*.
AD/LA-4/8—Fuel Cell Capacity and Security Inspection [F2009L03764]*.
AD/PITTS S-2/6 Amdt 1—Upper Wing Front Spar to Cabane Fitting – Inspection [F2009L03668]*.
106—
AD/AL 250/46 Amdt 1—Power Turbine Governor (Bendix) – Inspection of Drive Shaft [F2009L03455]*.
AD/AL 250/47—First Stage Turbine Wheel P/N 6853306 – Replacement [F2009L03454]*.
AD/AL 250/56 Amdt 1—Engine Quick Disconnect Magnetic Plugs – Inspection of Lockpins and Slots for Wear [F2009L03453]*.
AD/ARRIEL/35—HP/LP Pump Metering Unit – Low Pressure Fuel Pump Impeller Drive [F2009L03767]*.
AD/CON/89—Superior Air Parts Cylinder Heads [F2009L03443]*.
AD/CON/90—EQ3 Cylinders – Inspection for Cracks [F2009L03699]*.
AD/DART/5—Reduction Gear Oil Seal [F2009L03442]*.
AD/JT8D/43—Front Compressor Hub [F2009L03849]*.
AD/LYC/117 Amdt 1—Lycoming Crankshaft Replacement [F2009L03435]*.
AD/PW4000/11 Amdt 1—LCF Items – Mandatory Inspections [F2009L03769]*.
AD/PW4000/13—Fan Blade [F2009L03434]*.
AD/PW4000/14—Low Pressure Turbine Disks [F2009L03770]*.
AD/RB211/42—Front Combustion Liner Head Section [F2009L03642]*.
AD/THIELERT/11 Amdt 3—Propeller Control Valve [F2009L03520]*.
AD/TPE 331/4—Propeller Pitch Control – Modification [F2009L03429]*.
AD/TPE 331/5—Fuel Nozzle and Manifold Assembly – Replacement [F2009L03428]*.
AD/TPE 331/6—Anti-Icing Shield – Modification [F2009L03427]*.
AD/TPE 331/7—Fuel Control – Modification [F2009L03426]*.
AD/TPE 331/10—High Speed Pinion Bearing Assembly – Replacement [F2009L03425]*.
AD/TPE 331/11—High Speed Pinion Bearing Assembly – Replacement [F2009L03424]*.
AD/TPE 331/12—Fuel Control Unit – New Lee Plug Installation [F2009L03423]*.
AD/TPE 331/13—Short Torsion Shaft Spline Wear – Inspection [F2009L03422]*.
AD/TPE 331/15—Heated Pneumatic Line – Installation [F2009L03421]*.
AD/TPE 331/16—Turbine Bearing Oil Inlet Tube – Replacement [F2009L03420]*.
AD/TPE 331/17—Turbine Bearing Oil Inlet Tube – Replacement [F2009L03419]*.
AD/TPE 331/35—Second Stage Stator Assembly [F2009L03412]*.
107—
AD/AIRCON/3—Godfrey Cabin Supercharger Type 15 – Rotor Balance – Inspection [F2009L03456]*.
AD/PMC/52—Propeller Blade Erosion [F2009L03772]*.
AD/PMC/53—Cracked Propeller Blades [F2009L03773]*.
AD/SUPP/22 Amdt 2—Lifesaving Systems D-Lok Hook [F2009L03361]*.
Instruments Nos CASA—
EX55/09—Amendment of instrument CASA EX31/09 – Exemption – display of markings [F2009L02676]*.
EX68/09—Exemption – from provisions in Part 173 of CASR 1998 [F2009L03992]*.
EX71/09—Exemption – from holding an air traffic control licence [F2009L03715]*.
EX76/09—Exemption – participation in land and hold short operations [F2009L03572]*.
Commissioner of Taxation—Public Rulings—
Class Rulings—
Addenda—CR 2007/16, CR 2007/17 and CR 2008/91.
CR 2009/50-CR 2009/61.
Notice of Withdrawal—CR 2006/84.
Goods and Services Tax Determination GSTD 2009/2.
Product Rulings—
Notices of Withdrawal—PR 2008/63, PR 2008/65, PR 2008/72, PR 2009/18, PR 2009/20 and PR 2009/22.
PR 2009/49-PR 2009/52.
Taxation Determinations—
Addendum—TD 92/156.
Notice of Withdrawal—TD 93/62.
TD 2009/19.
Taxation Ruling (old series)—Notice of Withdrawal—IT 2181.
Taxation Ruling TR 2009/6.
Corporations Act—ASIC Class Orders—
[CO 09/552] [F2009L03603]*.
[CO 09/702] [F2009L03604]*.
[CO 09/728] [F2009L03728]*.
[CO 09/774] [F2009L03613]*.
Currency Act—Currency (Royal Australian Mint) Determination 2009 (No. 7) [F2009L03858]*.
Customs Act—
CEO Instruments of Approval Nos—
3 of 2009—Incoming passenger card (Arabic) [F2009L03863]*.
4 of 2009—Incoming passenger card (Vietnamese) [F2009L03864]*.
6 of 2009—Incoming passenger card (Chinese) [F2009L03866]*.
8 of 2009—Incoming passenger card (Indonesian) [F2009L03868]*.
9 of 2009—Incoming passenger card (Italian) [F2009L03869]*.
10 of 2009—Incoming passenger card (Japanese) [F2009L03870]*.
11 of 2009—Incoming passenger card (Korean) [F2009L03871]*.
12 of 2009—Incoming passenger card (Malay) [F2009L03873]*.
13 of 2009—Incoming passenger card (Spanish) [F2009L03874]*.
14 of 2009—Incoming passenger card (Thai) [F2009L03875]*.
15 of 2009—Aircraft Declaration [F2009L03876]*.
Select Legislative Instruments 2009 Nos—
255—Customs Amendment Regulations 2009 (No. 5) [F2009L03713]*.
277—Customs Amendment Regulations 2009 (No. 6) [F2009L03740]*.
279—Customs (ASEAN–Australia–New Zealand Rules of Origin) Regulations 2009 [F2009L03742]*.
Tariff Concession Orders—
0829223 [F2009L03473]*.
0834522 [F2009L03304]*.
0838633 [F2009L03471]*.
0842570 [F2009L03318]*.
0902545 [F2009L03273]*.
0904250 [F2009L03261]*.
0904257 [F2009L03262]*.
0904303 [F2009L03276]*.
0905028 [F2009L03469]*.
0906062 [F2009L03690]*.
0906066 [F2009L03285]*.
0906220 [F2009L03467]*.
0906324 [F2009L03275]*.
0906705 [F2009L03687]*.
0906802 [F2009L03281]*.
0906869 [F2009L03271]*.
0906870 [F2009L03270]*.
0906873 [F2009L03269]*.
0906874 [F2009L03267]*.
0906879 [F2009L03268]*.
0906989 [F2009L03279]*.
0907081 [F2009L03263]*.
0907148 [F2009L03266]*.
0907257 [F2009L03291]*.
0907284 [F2009L03282]*.
0907329 [F2009L03290]*.
0907331 [F2009L03264]*.
0907332 [F2009L03265]*.
0907333 [F2009L03588]*.
0907367 [F2009L03289]*.
0907794 [F2009L03675]*.
0907833 [F2009L03277]*.
0907854 [F2009L03678]*.
0907880 [F2009L03575]*.
0908030 [F2009L03574]*.
0908130 [F2009L03577]*.
0908198 [F2009L03293]*.
0908202 [F2009L03294]*.
0908206 [F2009L03295]*.
0908207 [F2009L03296]*.
0908230 [F2009L03573]*.
0908300 [F2009L03579]*.
0908358 [F2009L03580]*.
0908359 [F2009L03584]*.
0908457 [F2009L03589]*.
0908466 [F2009L03583]*.
0908467 [F2009L03582]*.
0908468 [F2009L03581]*.
0908469 [F2009L03586]*.
0908498 [F2009L03308]*.
0908499 [F2009L03587]*.
0908520 [F2009L03591]*.
0908602 [F2009L03590]*.
0908772 [F2009L03679]*.
0908866 [F2009L03677]*.
0909027 [F2009L03683]*.
0909029 [F2009L03696]*.
0909065 [F2009L03694]*.
0909072 [F2009L03682]*.
0909138 [F2009L03593]*.
0909248 [F2009L03689]*.
0909326 [F2009L03592]*.
0909475 [F2009L03693]*.
0909591 [F2009L03695]*.
0909606 [F2009L03688]*.
0909915 [F2009L03684]*.
0909920 [F2009L03685]*.
0909923 [F2009L03686]*.
0909931 [F2009L03692]*.
0909936 [F2009L03691]*.
0909950 [F2009L03697]*.
0910045 [F2009L03698]*.
0918400 [F2009L03488]*.
Tariff Concession Revocation Instruments—
19/2009 [F2009L03235]*.
20/2009 [F2009L03236]*.
21/2009 [F2009L03237]*.
22/2009 [F2009L03238]*.
23/2009 [F2009L03239]*.
24/2009 [F2009L03240]*.
25/2009 [F2009L03241]*.
26/2009 [F2009L03242]*.
27/2009 [F2009L03246]*.
28/2009 [F2009L03247]*.
29/2009 [F2009L03248]*.
30/2009 [F2009L03249]*.
31/2009 [F2009L03250]*.
32/2009 [F2009L03251]*.
33/2009 [F2009L03252]*.
34/2009 [F2009L03253]*.
35/2009 [F2009L03254]*.
36/2009 [F2009L03255]*.
37/2009 [F2009L03306]*.
38/2009 [F2009L03310]*.
Customs Tariff Act—Select Legislative Instrument 2009 No. 278—Customs Tariff Amendment Regulations 2009 (No. 1) [F2009L03741]*.
Dairy Produce Act—Select Legislative Instrument 2009 No. 252—Dairy Produce Amendment Regulations 2009 (No. 1) [F2009L03739]*.
Defence Act—Determinations under section 58B—Defence Determinations—
2009/56—Legal officer sessional fee – amendment.
2009/57—Post indexes – amendment.
2009/58—Consequential and technical amendments.
2009/59—Approved clubs – amendment.
2009/60—Navy – Aircrew retention and completion bonus scheme – amendment.
2009/61—Funeral costs, floral and non-floral tributes.
2009/62—Air Force – Military instructor completion bonus scheme.
2009/63—Air Force – Military instructor on Reserve service completion bonus scheme.
2009/64—Reserve member taken to be attending for duty – amendment.
2009/65—Travel on second overseas posting.
2009/66—Hardship allowance – amendment.
2009/67—Living-in accommodation – amendment.
2009/68—Post indexes – amendment.
2009/69—Christmas stand-down.
Defence Force Discipline Act—Select Legislative Instrument 2009 No. 248—Summary Authority Rules [F2009L03638]*.
Environment Protection and Biodiversity Conservation Act—
Adoption of State or Territory Plan as Recovery Plan, dated 6 October 2009 [F2009L03893]*.
Amendments of lists of—
Exempt Native Specimens—
EPBC303DC/SFS/2009/28 [F2009L03606]*.
EPBC303DC/SFS/2009/29 [F2009L03605]*.
EPBC303DC/SFS/2009/30 [F2009L03709]*.
EPBC303DC/SFS/2009/34 [F2009L03953]*.
EPBC303DC/SFS/2009/35 [F2009L03952]*.
Key threatening processes, 6 September 2009 [F2009L03518]*.
Specimens taken to be suitable for live import—EPBC/s.303EC/SSLI/Amend/026 [F2009L03548]*.
Threatened species, dated—
23 September 2009 [F2009L03710]*.
7 October 2009 [F2009L03951]*.
Extradition Act—Select Legislative Instruments 2009 Nos—
256—Extradition (Bosnia and Herzegovina) Regulations 2009 [F2009L03623]*.
257—Extradition (Bribery of Foreign Public Officials) Amendment Regulations 2009 (No. 1) [F2009L03612]*.
258—Extradition (Convention against Corruption) Amendment Regulations 2009 (No. 1) [F2009L03614]*.
259—Extradition (Currency) Regulations 2009 [F2009L03615]*.
260—Extradition (Macedonia) Regulations 2009 [F2009L03624]*.
261—Extradition (Montenegro) Regulations 2009 [F2009L03625]*.
262—Extradition (Narcotic Drugs) Regulations 2009 [F2009L03611]*.
263—Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Amendment Regulations 2009 (No. 1) [F2009L03616]*.
264—Extradition (Safety of United Nations and Associated Personnel) Amendment Regulations 2009 (No. 1) [F2009L03618]*.
265—Extradition (Serbia) Regulations 2009 [F2009L03626]*.
266—Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations 2009 [F2009L03621]*.
267—Extradition (Transnational Organised Crime) Amendment Regulations 2009 (No. 1) [F2009L03622]*.
Fair Work Act—Direction to Inspectors, dated 31 August 2009 [F2009L03487]*.
Federal Court of Australia Act—Select Legislative Instrument 2009 No. 251—Federal Court (Corporations) Amendment Rules 2009 (No. 1) [F2009L03724]*.
Federal Financial Relations Act—
Federal Financial Relations (General purpose financial assistance) Determination 2009 No. 5 (August) [F2009L03889]*.
Federal Financial Relations (General purpose financial assistance) Determination 2009 No. 6 (September) [F2009L03890]*.
Federal Financial Relations (National Partnership payments) Determination 2009 No. 8 (September) [F2009L03886]*.
Federal Financial Relations (National Partnership payments) Determination 2009 No. 9 (September) [F2009L03887]*.
Financial Management and Accountability Act—
Determinations—
2009/11—Section 32 (Transfer of Functions from BA to DAFF) [F2009L03521]*.
2009/12—Section 32 (Transfer of Functions from DEEWR to SWA) [F2009L03522]*.
2009/13—Section 32 (Transfer of Functions from AFPCS to FWA) [F2009L03610]*.
2009/14—Section 32 (Transfer of Functions from DITRDLG to ATSB) [F2009L03845]*.
Select Legislative Instrument 2009 No. 268—Financial Management and Accountability Amendment Regulations 2009 (No. 6) [F2009L03726]*.
Fisheries Management Act—
Bass Strait Central Zone Scallop Fishery Management Plan 2002—BSCZSF (Closures) Direction No. 2 2009 [F2009L03533]*.
Eastern Tuna and Billfish Fishery Management Plan 2005—Eastern Tuna and Billfish Fishery Total Allowable Effort (2009/2011 Fishing Season) Determination [F2009L03859]*.
Fisheries Management (Eastern Tuna and Billfish Fishery Management Plan 2005) Temporary Order 2009 [F2009L03707]*.
North West Slope Fishery Direction No. 02—Area closure [F2009L03842]*.
Northern Prawn Fishery Management Plan 1995—NPF Direction No. 130—Prohibition on fishing [F2009L03641]*.
Select Legislative Instruments 2009 Nos—
253—Fisheries Management (Eastern Tuna and Billfish Fishery) Regulations 2009 [F2009L03789]*.
254—Fisheries Management (International Agreements) Regulations 2009 [F2009L03790]*.
Food Standards Australia New Zealand Act—Australia New Zealand Food Standards Code – Amendment No. 112 – 2009 [F2009L03550]*.
Foreign Acquisitions and Takeovers Act—Select Legislative Instrument 2009 No. 245—Foreign Acquisitions and Takeovers Amendment Regulations 2009 (No. 1) [F2009L03549]*.
Foreign States Immunities Act—Select Legislative Instrument 2009 No. 249—Foreign States Immunities Amendment Regulations 2009 (No. 1) [F2009L03708]*.
Freedom of Information Act—Select Legislative Instrument 2009 No. 276—Freedom of Information (Miscellaneous Provisions) Amendment Regulations 2009 (No. 1) [F2009L03778]*.
Fringe Benefits Tax Assessment Act—Select Legislative Instrument 2009 No. 246—Fringe Benefits Tax Amendment Regulations 2009 (No. 1) [F2009L03532]*.
Health Insurance Act—
Declarations of Quality Assurance Activity—
QAA No. 2/2009 [F2009L03723]*.
QAA No. 3/2009 [F2009L03735]*.
Health Insurance (Accredited Pathology Laboratories – Approval) Amendment Principles 2009 (No. 1) [F2009L02453] [tabled on 24 June 2009]—Business Cost Calculator Report.
Health Insurance (Allied Health Services) Determination 2009 (No. 2) [F2009L03704]*.
Health Insurance (Positron Emission Tomography) Determination 2009 (No. 2) [F2009L03857]*.
Health Insurance (Positron Emission Tomography) Facilities Determination 2009 (No. 2) [F2009L03702]*.
Select Legislative Instruments 2009 Nos—
236—Health Insurance (Pathology Services Table) Regulations 2009 [F2009L02964]*.
270—Health Insurance Amendment Regulations 2009 (No. 3) [F2009L03138]*.
271—Health Insurance (Diagnostic Imaging Services Table) Regulations 2009 [F2009L03137]*.
272—Health Insurance (General Medical Services Table) Regulations 2009 [F2009L03329]*.
Higher Education Support Act—
Other Grants Guidelines (Research) 2009 [F2009L03950]*.
VET Provider Approval Nos—
35 of 2009—Jschool: Journalism Education & Training Pty Ltd [F2009L03526]*.
36 of 2009—The Southern School of Natural Therapies Ltd [F2009L03734]*.
37 of 2009—Study Group Australia Pty Limited [F2009L03743]*.
38 of 2009—Kings International College Ltd [F2009L03963]*.
Imported Food Control Act—Select Legislative Instrument 2009 No. 235—Imported Food Control Amendment Regulations 2009 (No. 1) [F2009L03524]*.
Income Tax Assessment Act 1997Select Legislative Instrument 2009 No. 247—Income Tax Assessment Amendment Regulations 2009 (No. 4) [F2009L03523]*.
Industry Research and Development Act—Re-tooling for Climate Change Program Ministerial Directions No. 1 of 2009 [F2009L03525]*.
Interstate Road Transport Act—
Determination of Routes for B-double Vehicles carrying Higher Mass Limits under the Federal Interstate Registration Scheme (FIRS) 2009 (No. 2) [F2009L03628]*.
Determination of Routes for B-doubles not Operating at Higher Mass Limits under the Federal Interstate Registration Scheme (FIRS) 2009 (No. 1) [F2009L03627]*.
Determination of Routes for Vehicles, other than B-doubles and Rigid Truck and Trailer Combinations, carrying Higher Mass Limits under the Federal Interstate Registration Scheme (FIRS) 2009 (No. 1) [F2009L03629]*.
Migration Act—
Direction under section 499—Direction No. 42—Order of consideration – certain Skilled Migration Visas.
Migration Agents Regulations—MARA Notices—
MN38-09b of 2009—Migration Agents (Continuing Professional Development – Private Study of Audio, Video or Written Material) [F2009L03594]*.
MN38-09c of 2009—Migration Agents (Continuing Professional Development – Attendance at a Seminar, Workshop, Conference or Lecture) [F2009L03595]*.
MN38-09f of 2009—Migration Agents (Continuing Professional Development – Miscellaneous Activities) [F2009L03596]*.
MN38-09g of 2009—Migration Agents (Continuing Professional Development – Pro Bono Activities) [F2009L03597]*.
Migration Regulations—Instrument IMMI 09/115—Classes of persons [F2009L03972]*.
Select Legislative Instruments 2009 Nos—
237—Migration Amendment Regulations 2009 (No. 11) [F2009L03528]*.
273—Migration Amendment Regulations 2009 (No. 12) [F2009L03759]*.
Military Rehabilitation and Compensation Act—Instrument No. M46/2009—MRCA Treatment Principles (HomeFront – Frequency of Subsidy) Instrument 2009 [F2009L03955]*.
Motor Vehicle Standards Act—Vehicle Standard (Australian Design Rule 84/00 – Front Underrun Impact Protection) 2009 [F2009L03609]*.
Nation Building Program (National Land Transport) Act 2009—
Conditions Applying to Payments under Part 8 of the Act [F2009L03617]*.
Variation of the Nation Building Program Roads to Recovery List Instrument No. 2009/3 [F2009L03733]*.
National Health Act—
Instruments Nos PB—
86 of 2009—Amendment declaration and determination – drugs and medicinal preparations [F2009L03544]*.
87 of 2009—Amendment determination – pharmaceutical benefits [F2009L03545]*.
88 of 2009—Amendment determination – responsible persons [F2009L03543]*.
89 of 2009—Determination – drugs on F1 and drugs in Part A of F2 [F2009L03540]*.
90 of 2009—Amendment – price determinations and special patient contributions [F2009L03537]*.
91 of 2009—Amendment – pharmaceutical benefits supplied by medical practitioners [F2009L03541]*.
92 of 2009—Amendment Special Arrangements – Highly Specialised Drugs Program [F2009L03547]*.
93 of 2009—Amendment Special Arrangements – Chemotherapy Pharmaceuticals Access Program [F2009L03546]*.
94 of 2009—Amendment Special Arrangements – Highly Specialised Drugs Program [F2009L03701]*.
95 of 2009—Amendment determination – weighted average disclosed price [F2009L03722]*.
96 of 2009—Amendment declaration and determination – drugs and medicinal preparations [F2009L03829]*.
97 of 2009—Amendment determination – pharmaceutical benefits [F2009L03821]*.
98 of 2009—Amendment determination – responsible persons [F2009L03798]*.
99 of 2009—Determination – drugs on F1 [F2009L03802]*.
100 of 2009—Amendment – price determinations and special patient contributions [F2009L03820]*.
101 of 2009—Amendment Special Arrangements – Highly Specialised Drugs Program [F2009L03885]*.
102 of 2009—Amendment Special Arrangements – Chemotherapy Pharmaceuticals Access Program [F2009L03892]*.
105 of 2009—Amendment determination – weighted average disclosed price [F2009L03737]*.
National Health (Immunisation Program – Designated Vaccines) Determination 2009 (No. 2) [F2009L03765]*.
National Transport Commission Act—Select Legislative Instruments 2009 Nos—
238—National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue – Package No. 2) Regulations 2009 [F2009L03553]*.
239—National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue – Package No. 3) Regulations 2009 [F2009L03554]*.
240—National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue – Package No. 4) Regulations 2009 [F2009L03555]*.
241—National Transport Commission (Model Amendments Regulations: Australian Road Rules – Package No. 5 – General) Regulations 2009 [F2009L03569]*.
242—National Transport Commission (Model Amendments Regulations: Australian Road Rules – Package No. 5 – Seatbelts) Regulations 2009 [F2009L03570]*.
Navigation Act—Marine Orders Nos—
3 of 2009—Marine pollution prevention – sewage [F2009L03640]*.
4 of 2009—Operations standards and procedures [F2009L03639]*.
5 of 2009—Prevention of collisions [F2009L03712]*.
6 of 2009—High-speed craft [F2009L03714]*.
7 of 2009—Measures to enhance maritime safety [F2009L03717]*.
Parliamentary Entitlements Act—Select Legislative Instrument 2009 No. 250—Parliamentary Entitlements Amendment Regulations 2009 (No. 1) Amendment Regulations 2009 (No. 1) [F2009L03706]*.
Private Health Insurance Act—
Private Health Insurance (Benefit Requirements) Amendment Rules 2009 (No. 5) [F2009L03599]*.
Private Health Insurance (Complying Product) Rules 2009 (No. 2) [F2009L03600]*.
Private Health Insurance (Insurer Obligations) Rules 2009 [F2009L03634]*.
Private Health Insurance (Prostheses) Amendment Rules 2009 (No. 3) [F2009L03777]*.
Protection of the Sea (Oil Pollution Compensation Funds) Act—Select Legislative Instruments 2009 Nos—
243—Protection of the Sea (Oil Pollution Compensation Fund) Amendment Regulations 2009 (No. 1) [F2009L03536]*.
244—Protection of the Sea (Supplementary Fund) Regulations 2009 [F2009L03539]*.
Radiocommunications Act—
Radiocommunications Advisory Guidelines (Managing Interference to Apparatus Licensed Receivers—3.4 GHz Band) Amendment 2009 (No. 1) [F2009L03576]*.
Radiocommunications Licence Conditions (Fixed Licence) Amendment Determination 2009 (No. 1) [F2009L03578]*.
Remuneration Tribunal Act—
Determinations—
2009/13: Remuneration and Allowances for Holders of Public Office [F2009L03658]*.
2009/14: Remuneration and Allowances for Holders of Part-Time Public Office [F2009L03676]*.
2009/15: Specified Statutory Officers – Remuneration and Allowances [F2009L03673]*.
2009/16: Principal Executive Officer (PEO) Classification Structure and Terms and Conditions [F2009L03680]*.
2009/17: Judicial and Related Offices – Remuneration and Allowances [F2009L03665]*.
2009/18: Remuneration and Allowances for Holders of Full-Time Public Office [F2009L03674]*.
2009/19: Members of Parliament – Entitlements [F2009L03846]*.
2009/20: Parliamentary Office Holders – Additional Salary [F2009L03979]*.
Report No. 1 of 2009—Ministers of State – Salaries Additional to the Basic Parliamentary Salary.
Social Security Act—
Social Security (Australian Government Disaster Recovery Payment – Amount of payment for disasters outside Australia) Determination 2009 [F2009L03836]*.
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 6) [F2009L03837]*.
Social Security (Australian Government Disaster Recovery Payment) Determination 2009 (No. 7) [F2009L03838]*.
Social Security Exempt Lump Sum (Dependant Pension Lump Sum Payment and Closure) (FaHCSIA) Determination 2009 [F2009L03607]*.
Social Security (Exempt Lump Sum) (Dependants’ Pension Lump Sum Payment and Closure) (DEEWR) Determination 2009 (No. 1) [F2009L03619]*.
Social Security Exempt Lump Sum (Disability Sporting Grants) (FaHCSIA) Determination 2009 [F2009L03984]*.
Social Security Foreign Currency Exchange Rate Determination 2009 (No. 2) [F2009L03510]*.
Social Security (Waiver of Debts – Small APRA Funds) (FaHCSIA) Specification 2009 [F2009L03948]*.
Social Security (Administration) Act—
Social Security (Administration) (Declared relevant Northern Territory areas – Various) Determination 2009 (No. 10) [F2009L03736]*.
Social Security (Administration) (Declared voluntary income management areas – Western Australia) Determinations 2009—
(No. 2) [F2009L03956]*.
(No. 3) [F2009L03958]*.
(No. 4) [F2009L03960]*.
Superannuation Industry (Supervision) Act—Superannuation Industry (Supervision) Modification Declarations Nos—
1 of 2009 [F2009L03944]*.
2 of 2009 [F2009L03945]*.
Sydney Airport Curfew Act—Dispensation Report 08/09.
Taxation Administration Act—Private Ancillary Fund Guidelines 2009 [F2009L03700]*.
Telecommunications Act—
Telecommunications Cabling Provider Amendment Rules 2009 (No. 1) [F2009L03729]*.
Telecommunications Cabling Provider Rules 2000—Arrangements for the Operation of the Registration System (No. 3) [F2009L03732]*.
Telecommunications (Types of Cabling Work) Amendment Declaration 2009 (No. 1) [F2009L03730]*.
Therapeutic Goods Act—
Therapeutic Goods (Listing) Notice 2009 (No. 5) [F2009L03632]*.
Therapeutic Goods (Listing) Notice 2009 (No. 6) [F2009L03872]*.
Veterans’ Entitlements Act—
Veterans’ Entitlements (Treatment Principles – Community Care at Home approved under the Aged Care Act 1997 for Former Prisoners of War and Victoria Cross Recipients) Instrument 2009—R53/2009 [F2009L03776]*.
Veterans’ Entitlements (Treatment Principles – HomeFront – Frequency of Subsidy) Instrument 2009—R45/2009 [F2009L03957]*.
Governor-General’s Proclamation—Commencement of provisions of an Act
Protection of the Sea Legislation Amendment Act 2008Schedule 1—13 October 2009 [F2009L03731]*.
* Explanatory statement tabled with legislative instrument.