Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

I rise to speak on the Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017, which is supported by Labor. I want to address some remarks to schedule 2 and schedule 5 of the bill. Schedule 2 of the bill makes some quite significant amendments to the Aboriginal and Torres Strait Islander Commission Amendment Act 2005, which was the act the Howard government used to abolish the Aboriginal and Torres Strait Islander Commission—the ATSIC, as it was known. That is schedule 2. Schedule 5 makes some quite significant amendments to the Royal Commissions Act 1902.

From the startlingly short second reading speech by the member for Hume, the assistant minister in the Prime Minister's portfolio, one would not learn very much about the significance of this bill. Regrettably, the explanatory memorandum does not really cast much light on the significance of the two schedules I am talking about. The explanatory memorandum is slightly better in respect of the amendments to the Royal Commissions Act 1902, but in respect of the amendments to the Aboriginal and Torres Strait Islander Commission Amendment Act 2005, anyone that lacked detailed knowledge of this area would be left guessing at the significance of the amendments that are being made.

Helpfully, the bill was referred to the Senate Finance and Public Administration Legislation Committee on 11 May for inquiry and report by 13 June, and the committee has conducted a very short inquiry. No public hearings were held—perhaps that is understandable, given the short time it was provided—and only four submissions were received by the Finance and Public Administration Legislation Committee. There were submissions from the Department of the Prime Minister and Cabinet, the Australian National Audit Office, Indigenous Business Australia and the Attorney-General's Department. From the report of the Senate committee, we are now able to see that in respect of the significant amendment which is being made it actually potentially affects some 4,500 assets held by Aboriginal and Torres Strait Islander organisations right across Australia.

From the explanatory memorandum it is possible to glean a little more, and that is the observation in the explanatory memorandum that until the abolition of ATSIC in 2005 by the Howard government, ATSIC had powers to make grants of money and grants of interest in land, to make loans to individuals or bodies, and to give loan guarantees, all for the purpose of furthering the social, economic or cultural development of Aboriginal people or Torres Strait Islanders. And, correctly, the explanatory memorandum notes:

ATSIC exercised these powers to assist organisations to acquire an interest in land for a broad range of activities (e.g. pastoral services, health services, housing, and business development). In practice, ATSIC assisted organisations, typically Indigenous community organisations, rather than individuals.

It is now apparent that these 4,500 assets, many of them very significant assets, are potentially going to be affected by this legislation. They are going to be affected in this way: it is proposed that, instead of the situation which has existed since the abolition of ATSIC in 2005—which has required that there be consent by a range of Commonwealth authorities before an asset purchased with money provided by ATSIC could be disposed of—in future, if this bill passes the parliament, that consent will be waived by the relevant consenting authority. Again, you would not know from the second reading speech the bodies concerned. The second reading speech only refers to the possibility of a consenting authority being the Commonwealth or Indigenous Business Australia, IBA. But another very significant body which is going to be involved is the Indigenous Land Corporation. What we have, as noted by the Senate committee report, is this:

PM&C advised that the consenting authorities are the Commonwealth, IBA and the Indigenous Land Corporation (ILC) …

As I said, we have potentially 4,500 assets affected. Some of those are cattle stations. Some of those are health centres. Some of those are quite significant community assets held by Aboriginal organisations and Torres Strait Islander organisations right across Australia. If it's the case that this bill becomes law, each of those organisations that I have mentioned—the Indigenous Land Corporation presently needing to give consent, Indigenous Business Australia presently needing to give consent or the Commonwealth presently needing to give consent—will be able to waive the exercise of the statutory consent power by giving written notice to the organisation that consent is no longer required. The way in which this has been put in the second reading speech as to the purpose of this potential waiver of consent is this:

Allowing these agencies to remove the consent requirement in particular cases will reduce the administrative burden and will support the more flexible use of assets by Indigenous organisations.

That was expanded upon to some extent by the Department of the Prime Minister and Cabinet in its submission to the Senate committee, saying this:

This will support an increase in autonomy and economic independence for Indigenous organisations, reduce red tape, and better enable them to more freely use their land for economic development.

I don't think it's ever been suggested that the consent power has been anything other than an appropriate check and balance on what would otherwise potentially be decision-making that might in fact produce outcomes that are not necessarily advantageous to the Aboriginal communities concerned. It's to be hoped that, when the Commonwealth, the Indigenous Land Corporation and Indigenous Business Australia go about waiving this consent requirement, they take care. Saying simply that an objective of the change is to enable Indigenous organisations to more freely use their land for economic development has the potential to simply have the Commonwealth organisations involved, or the two corporations involved, washing their hands of responsibility for what was in fact, in many cases, hundreds and hundreds of millions of dollars of public funds that have been invested in these assets.

Of course it's the case that Labor supports measures that'll increase the autonomy, economic development and economic independence of Indigenous communities, but the history of the decade since the Native Title Act was enacted by the Keating government demonstrated that economic development is not always synonymous with benefit to Indigenous communities. For example, inappropriate economic development may destroy sacred sites. Inappropriate economic development may disrupt the relationship between a community and its traditional lands. One could give as an example the influx of hundreds or even thousands of fly-in fly-out construction workers to an area that may have unintended cultural and social impacts that are not to a community's benefit. And, as we've often seen, debates over merits of economic developments may deeply divide communities at a social level.

The short point I seek to make is that we saw inadequate consultation having been conducted by this government earlier this year in relation to amendments to the Native Title Act. This government seems to have a very poor idea of what is adequate consultation. Particularly when the assets that are here under consideration will be located in remote communities and the communities concerned may have somewhat tenuous relationships with government or may not be familiar with the issues involved but are nevertheless dealing with what are very significant assets in those communities, it's to be hoped that, before any of the consenting authorities who are here being given the right to waive the need for their consent to be obtained before an asset is disposed of, that power to waive is exercised only after proper detailed and, I would say, often lengthy consultation with the communities concerned to make sure of the reason why the consent requirement was put there in the first place—namely, to protect the fact that we have got hundreds of millions of dollars of public moneys having been invested in the first place to buy the assets concerned, that the public interest is protected, that the interests of the community concerned are going to be protected and that the waiving of the consent is only done in appropriate circumstances. I mention all those matters simply to say that the parliament is owed something more of an explanation than one would have seen in the page-and-a-half-long second reading speech that accompanied this bill.

The other matter I wanted to deal with is the amendments to the Royal Commission Act 1902. It's something of a grab bag of an amendment act that has in the first part amendments to Indigenous legislation. In the second part there are also a range of consequential amendments on that, including amendments to the Auditor-General Act and amendments to the Australian Human Rights Commission Act, but they are of a minor nature. It's the amendments to the Royal Commissions Act that are of greater importance. They concern first of all the insertion of a new power for royal commissioners to request that information be provided in a particular form and, second of all, a very, very substantial increase in penalties in the Royal Commissions Act 1902 for failure to comply with directions, failure to produce and failure to appear to give evidence. Those penalties, as I say, were very, very substantially increased.

The royal commission's power is a very significant power that's able to be exercised by the executive government of Australia. It's been used throughout the history of the Commonwealth, very often to great effect with royal commissions that have had lasting impact on the Australian community and that have produced recommendations that when acted on by government have produced lasting benefit to our community. We have currently being conducted two royal commissions, one of them established by the Gillard government: the Royal Commission into Institutional Responses to Child Sexual Abuse. It, of course, was established by the Gillard government in December 2012. It commenced its operations in April 2013. Special legislation was passed amending the Royal Commissions Act 1902 to enable that royal commission—a very, very substantial royal commission—to go about its work.

Those amendments included empowering the six commissioners to sit separately as well as together and other amendments that empowered the royal commission to conduct private hearings and undertake its work in private session, an entirely appropriate power to give to a royal commission inquiring into the subject that that royal commission has been charged to look into. The royal commission had its term extended and will now be delivering its final report in December of this year and has already produced a significant interim report on redress. There's an example of a royal commission that has already served the Australian community exceptionally well, and I am very much, as I am sure the whole of the Australian community and certainly members of this parliament, are looking forward to the delivery of the final report of commissioner McClelland and the other five commissioners.

There's another royal commission which is also current, the Royal Commission into the Protection and Detention of Children in the Northern Territory, conducted by former justice of the Queensland Supreme Court, Margaret White and the former Social Justice Commissioner, Mick Gooder. It's due to give its report in the next few weeks and of course is an inquiry that was prompted by the shocking revelations in particular of the treatment of young people in Northern Territory detention centres notably Dylan Voller.

They are examples of royal commissions where the royal commission's power of the Commonwealth has been well used. Regrettably, I am reminded by the explanatory memorandum that accompanies this bill that the royal commission's power has not always been so well used. Two examples are the royal commission commissioned by this government into the home insulation program, a completely worthless royal commission that cost Australia more than $25 million and, secondly, the Royal Commission into Trade Unions conducted by Mr Hayden, former justice of the High Court of Australia, another almost completely useless royal commission, now discredited. It is important to mention those because, curiously, both of these royal commissions are being called in aid to support the amendments that are here being put forward to the Royal Commissions Act.

I will deal first with the amendment which would make it possible for royal commissions in the future to not merely require that someone appear before a royal commission to give evidence and not merely empower, as is the current situation, royal commissioners to require the production of documents but, in addition, to empower a future royal commissioner—because these amendments are not going to affect the two ongoing Commonwealth royal commissions—to issue a notice that will require the person receiving the notice to provide information in a form approved by the inquiry. What this is potentially about is to remove the need for someone to appear as a witness at all in order to give oral evidence. It's a very perfectly practical amendment to make to the Royal Commissions Act 1902. Rather than attributing it, I would think, to Mr Hanger, who was the royal commissioner into the home insulation program, I would have attributed it, as does the explanatory memorandum, to the Australian Law Reform Commission's report in 2009 that made this precise recommendation. What the 2009 report of the Australian Law Reform Commission suggested was that a royal commission should be empowered to issue a notice requiring a person to provide information in a form approved by the inquiry, failing which the member of the royal commission can require the person to attend the inquiry as if he or she had been issued with a notice to attend or appear before the inquiry. As I said, it's a practical suggestion made by the Australian Law Reform Commission in its 2009 Making inquiries report, and perhaps the government was desperate to find something that it could actually point to from the Hanger royal commission—the useless Hanger royal commission that cost over $25 million—because not a single other recommendation of the Hanger royal commission has been acted on. It's not possible for the government to point to a single positive step or a single positive action taken by the government as a consequence of that royal commission, which ran for many months in Queensland, cost the Commonwealth over $25 million and was designed purely for the purpose of discrediting a former government. It started in a spectacularly improper manner, with the government breaching decades-long conventions by giving to its own royal commissioner the cabinet papers of the former Labor government—which, happily, were never actually used in the royal commission, but it was an improper start to that royal commission. The practical suggestion that was made by the Law Reform Commission in the 2009 report, which Mr Hanger thought was a good idea as well, is now being acted on, and Labor would support the amendment that is being made.

The second lot of amendments to the Royal Commissions Act are amendments which very substantially increase the penalties for failure to comply with the directions of a royal commissioner or the requirements of a royal commissioner. I only have to state them for it to be seen how substantial the increases are. The present penalty is, I think, $1,000 in the Crimes Act. Mr Heydon noted in his royal commission report—supporting his recommendation that the penalties for failure to comply with a summons to attend, failure to comply with a notice, failure to be sworn and answer questions, and failure to provide documents be substantially increased—that, when the Royal Commissions Act was introduced in 1902, the penalty that was provided for was a penalty not exceeding 50 pounds. He goes on to note that that fine was increased to 500 pounds in 1912 and it has only been amended once to reflect the introduction of decimal currency in 1966, when the penalty became $1,000. Usefully, Mr Heydon observes:

According to the inflation calculator managed by the Reserve Bank of Australia, the value of £500 in 1912 would be equivalent to $57,174.86 in 2014.

He rightly points out that noncompliance with an exercise of a royal commission's coercive power was, at the time of enactment and within the first decade thereafter, considered to be an extremely serious offence. The current value of the penalty has been seriously eroded by inflation, and legislative amendment is clearly necessary. What the government is doing here is acting on the particular recommendation, not quite to the letter of what Mr Heydon said.

Again, it's possible to say that this is also acting on recommendations made by the Australian Law Reform Commission's inquiry into royal commissions and official inquiries, because that inquiry too—at recommendations 21-1, 21-2 and 21-3—suggested some very substantial increases in the penalties that are currently provided for in the Royal Commissions Act. The level suggested by the Australian Law Reform Commission was a little bit less. They were talking in the order of 30 penalty units for some offences, 60 for other offences and 120 units for contravening a direction concerning national security information.

The government here, in the amendment bill that we have before the House, is going straight for imprisonment for two years for a range of offences under the Royal Commissions Act. As the explanatory memorandum correctly points out, what that will mean is that in the alternative, because of provisions in the Crimes Act, a court that is punishing for an offence, once found, will have as an alternative to that imprisonment of up to two years the possibility of imposing a pecuniary penalty of up to 120 penalty units—in dollar terms, that's currently $25,200—or, for a body corporate, a penalty of up to 600 penalty units, which in dollar terms is $126,000.

Again, the Senate inquiry has been helpful here, because there was some inquiry by the Senate committee into why these penalties were so high—indeed, considerably more than had been suggested by the Australian Law Reform Commission. As the Senate committee notes, quoting from the submission that it received from the Attorney-General's Department:

Two years imprisonment is consistent with the penalties available for failure to comply with notices issued by the Australian Securities and Investments Commission and the Australian Competition and Consumer Commission.

Royal Commissions are the highest form of public inquiry in Australia and it is imperative that persons comply with requests made under the Royal Commissions Act and that if they do not they are appropriately dealt with under the law. As such, the proposed increase in penalties is proportionate and reasonable.

Labor too thinks that there ought to be appropriate and heavy penalties for failing to comply with royal commission directions.

It may very well be that they will be needed when the royal commission into banks is established, if not by this government then by the next Labor government, because it remains a commitment of Labor that a royal commission into the banks and into the banking industry is sorely needed. If more were needed, we have only to look at the recent revelations now being prosecuted by AUSTRAC into what are alleged to be extraordinarily serious—and I say no more about them than that they are alleged to be extraordinarily serious—breaches of the anti-money-laundering provisions by the Commonwealth Bank. But one could go on to look at the long list of misconduct by every one of the major Australian banks, which of course is what has led to our call for a royal commission into the banks and the banking industry. Such a royal commission is supported by very many members of this parliament, including a number of those on the other side of this House and a number of government senators, notably—and I mention him only because I saw him in the media earlier today—Senator John Williams, who has been very vigorous in his support for a royal commission into the banks and the banking industry. I commend the bill to the House.

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