Nick Minchin (SA, Liberal Party, Leader of the Opposition in the Senate) Share this | Hansard source

by leave—I move amendments (1) to (9) on sheet 5488 on behalf of Liberal senators, not strictly on behalf of the opposition. I have circulated them and I would like to speak to those amendments as a whole.

(1)    Clause 3, page 2 (line 14), omit “responsive to”, substitute “advances”.

(2)    Clause 5, page 6 (after line 10), after the definition of foreign law, insert:

individual producer means a wheat producer who deals solely in wheat which that individual producer has grown himself or herself.

(3)    Clause 7, page 9 (after line 7), after subclause (1), insert:

     (1A)    Notwithstanding subsection (1), an individual producer may export wheat provided that it is wheat produced by that individual producer.

(4)    Clause 15, page 18 (lines 27 to 30), omit subclause (2), substitute:

(2) Paragraphs (1)(c) and (d) do not apply:

             (a)    to the export of wheat in:

                   (i)    a bag; or

                  (ii)    a container;

                      that is capable of holding not more than 50 tonnes of wheat; or

             (b)    to an individual producer exporting wheat produced by that individual producer.

(5)    Clause 21, page 25 (lines 19 to 22), omit subclause (3), substitute:

(3) Paragraphs (2)(a) and (b) do not apply:

             (a)    to the export of wheat in:

                   (i)    a bag; or

                  (ii)    a container;

                      that is capable of holding not more than 50 tonnes of wheat; or

             (b)    to an individual producer exporting wheat produced by that individual producer.

(6)    Clause 22, page 27 (lines 26 to 29), omit subclause (4), substitute:

(4) Paragraphs (3)(a) and (b) do not apply:

             (a)    to the export of wheat in:

                   (i)    a bag; or

                  (ii)    a container;

                      that is capable of holding not more than 50 tonnes of wheat; or

             (b)    to an individual producer exporting wheat produced by that individual producer.

(7)    Page 69 (after line 3), before clause 87, insert:

86A Operation of certain State and Territory laws

        (1)    In this section:

corporation means a trading corporation formed within the limits of the Commonwealth.

sale contract means a contract for the sale of grain or for the growing of grain and the sale of the grain, being a contract to which a corporation is a party and which is entered into by a corporation in the course of, or for the purposes of:

             (a)    the export of the grain; or

             (b)    trade and commerce:

                   (i)    among the States; or

                  (ii)    between a State and a Territory or between Territories; or

                 (iii)    within a Territory.

service contract means a contract, agreement or arrangement for the storage, handling or transport of grain for a corporation, being a contract to which a corporation is a party and which is entered into by the corporation in the course of, or for the purposes of:

             (a)    the export of the grain; or

             (b)    trade and commerce:

                   (i)    among the States; or

                  (ii)    between a State and a Territory or between Territories; or

                 (iii)    within a Territory.

State or Territory enactment means:

             (a)    a State Act; or

             (b)    an enactment of a Territory; or

             (c)    an instrument made or issued under such an Act or enactment.

        (2)    A sale contract or a service contract is not rendered unlawful or unenforceable by any prescribed State or Territory enactment.

        (3)    A party to a sale contract or a service contract does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of having entered into the contract.

        (4)    Nothing in any prescribed State or Territory enactment operates to prevent a party to a sale contract or a service contract discharging obligations under the contract according to the terms of the contract.

        (5)    In the case of a sale contract, nothing in any prescribed State or Territory enactment operates to prevent the property in the grain passing to the purchaser according to the terms of the contract.

        (6)    A person who, under a contract (including a contract of service), agreement or arrangement with a party to a sale contract or a service contract, does anything on behalf of that party in the discharge of an obligation under the sale contract or the service contract does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the party is not rendered unlawful or unenforceable by any prescribed State or Territory enactment.

        (7)    A corporation does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1).

        (8)    Nothing in any prescribed State or Territory enactment prevents a corporation storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1).

        (9)    A person who, under a contract (including a contract of service), agreement or arrangement with a corporation does anything for the corporation in, or in connection with, the storage, handling or transport of grain by the corporation does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the corporation is not rendered unlawful or unenforceable by any prescribed State or Territory enactment.

      (10)    Nothing in any prescribed State or Territory enactment operates to prevent a party to a contract, agreement or arrangement referred to in subsection (6) or (9) discharging obligations under the contract, agreement or arrangement according to its terms.

      (11)    Subsection (5) does not affect the rights of the holder of a security over grain for money owing.

      (12)    Subject to subsection (13), a reference in this section to a prescribed State or Territory enactment is a reference to:

             (a)    a State or Territory enactment declared by the regulations to be a prescribed State or Territory enactment for the purposes of this section; or

             (b)    a State or Territory enactment included in a class of State or Territory enactments declared by the regulations to be prescribed State or Territory enactments for the purposes of this section.

      (13)    The regulations must not prescribe a State or Territory enactment except in relation to the storage, handling and transport of grain or the marketing of wheat.

      (14)    The regulations may provide that a State or Territory enactment, or a State or Territory enactment included in a class of State or Territory enactments, is a prescribed State or Territory enactment only to the extent, or only in the circumstances, specified in the regulations.

      (15)    Regulations prescribing a State or Territory enactment for the purposes of this section must not be made unless the Minister has notified the Minister of the State or Territory responsible for the administration of the enactment of the subject matter of the regulations.

(8)    Clause 89, page 70 (line 2), omit “Before 1 January 2011”, substitute “By 1 January 2010”.

(9)    Clause 89, page 70 (line 17), at the end of paragraph (4)(b), add “before 1 July 2010”.

The first amendment on our sheet goes to the issue of objectives. As was known to the government, Liberal senators on the very good inquiry that was conducted into this bill, which again highlights the virtue of Senate committees of inquiry, noted that there was no objects clause at all, which is unusual, and the government in its wisdom inserted an objects clause. We support that objects clause in every respect but one, and I will detail our objection. It refers in clause 3(a) to the objective of promoting ‘the development of a bulk wheat export marketing industry that is efficient, competitive and responsive to the needs of wheat growers’. The effect of amendment (1) is to delete the words ‘responsive to’ and insert the word ‘advances’, because we believe that this act should not simply be about responding to the needs of wheat growers but be about advancing their needs. It should be seen as much more proactive in its objectives—that this is an act about advancing the needs of wheat growers. So that is amendment (1).

Amendment (2) on page 6 of the bill is a definitional amendment that is required as a result of our view that this bill, as outlined again by Liberal senators in their very good comments on the report, should not prevent individual wheat growers, whether incorporated or not, from selling their own wheat in bulk, and therefore we need in the definitions clause a definition of ‘individual producer’, and that is the effect of amendment (2).

Amendments (3) to (6) relate to this proposition of ours, which I am delighted to say has the support of the National Party—as do all, as I understand it, and as do, I hope, our amendments tonight—and gives effect to the wishes and recommendations of Liberal senators in the Senate committee report that individual wheat growers should not have to undergo the full accreditation process in order to directly sell in bulk their own wheat to a third party. They articulated the virtues of that, and we do not believe that the bill should be structured in such a fashion that it makes it very difficult for individuals. I know that the government says, ‘If an individual incorporates then they can get accreditation and then they can be part of this bill.’ We do not believe that an individual wheat grower who wants to sell his or her own wheat in bulk should be subject to those sorts of requirements. There is no fundamental philosophical or policy requirement for that to occur and therefore we seek to move amendments (3) to (6) to give effect to those propositions. They are all of that kind—in other words, ensuring that an individual producer, for example in clause 4, exporting wheat produced by that individual producer is exempt from the other requirements of the bill in respect of accreditation et cetera. So they are amendments (3) to (6), which we commend to the Senate.

Amendment (7) is simply to take from previous acts governing the export of bulk wheat a very important clause which relates to the, as it says, operation of certain state and territory laws. It has long been the case that, under the Commonwealth regime governing the export of bulk wheat, these provisions have been in place to ensure that no state or territory laws can interfere with or subvert the performance of contracts involving the growing, storing and transport of wheat. We have simply proposed that we take those provisions from previous acts and insert them in the new act. We do not quite understand why they have not been there and we believe it is important that it is made explicit in this act that state or territory laws cannot interfere with the proper implementation of the federal regime in a way that has always been the case with respect to the governance at a federal level of the export of bulk wheat.

Finally, our amendments (8) and (9) go to the issue of the proposed review of the legislation. We are pleased that the government has put in place a proper review regime in the bill. It currently provides that before 1 January 2011 the Productivity Commission must begin to conduct a review. I am delighted to see that the Productivity Commission has not been completely locked out of the business of review and analysis by this Labor government, and the government has acknowledged the proper place of the Productivity Commission in this sort of legislation. While we strongly support their role and the need for a review, our amendments seek to specifically provide that the review by the Productivity Commission commence on 1 January 2010 and conclude by 30 June 2010.

We do think that it is important to put specific start and finish dates in this review. The dates provided for in our amendments will ensure that there are two full wheat growing seasons upon which the Productivity Commission can base its review—that is, between the start of this legislation and the start of the review. The amended dates that we are proposing would then provide ample time in which to amend the act in any way that was recommended by the Productivity Commission and accepted by the parliament. So you could get those amendments in place by the end of 2010 and growers could then operate on the basis of any amended legislation for the 2011 season. That date also allows for a comprehensive and early review of the activities of the bulk handling companies, which I know is a matter of concern for some in this chamber, to ensure that advancing the needs of growers is also the net effect of the activities of the bulk handling companies.

We will be closely monitoring the impact of this legislation on growers, and we want to know that the formal review process will be completed on time so that any refinements or amendments can be made in such a way as to facilitate grower certainty. So that is our package of amendments. As I say, we by and large support the bill. These amendments are not fundamental but we do believe that they improve the bill and put the focus much more on the needs of individual growers. The changes to the objects clause provide for individual wheat producers to export their own wheat in bulk, translate into the act those standard provisions with respect to the operation of certain state and territory laws and refine the specifications of the review. I commend the Liberal senators’ amendments to the chamber.