Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

When we adjourned the debate on this bill the minister had just finished an answer which I would like to follow up. He did not answer the question about who is covered under this particular section. I am sorry; I am fiddling around looking for the definition because I want to specifically ask about the definition of a community services entity.

The question I asked before related to whether non-government organisations are caught up under this provision. My reading of the definition is that they are and my reading of the definition gives this series of sections quite substantive powers in terms of how they can direct organisations, how they can take their assets and require them to be used, and how they can put observers on their boards and in their meetings. I want some answers to some fairly specific questions about who this covers and whether it covers non-government organisations as community service organisations. The bill says:

(d)   any other person or entity:

       (i)    that performs functions or provides services in a business management area; and

       (ii)   that is specified by the Minister (whether by reference to a class of person or entity or otherwise), by legislative instrument, for the purposes of this paragraph.

I am seeking detail about this because I am concerned that it has quite significant ramifications for organisations that choose to work in prescribed areas. In fact, certain organisations, because they may be covered by these provisions, may choose not to work in a prescribed area, because of the powers it gives the minister.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Perhaps I can put my answer this way. The nature of a non-government organisation is pretty broad so I will just put it in the context of the intent. An NGO would be affected if it was the community government council. So, if the NGO is a community government council, an incorporated association delivering services in the community or an Aboriginal and Torres Strait Islander corporation it will be affected. The reason I say that is that there are, as you would be aware, Senator, quite a complex set of governance arrangements. Those arrangements relate to NGOs if the NGO is a community government council or acts as a community government council, is an incorporated association or is incorporated as an Aboriginal and Torres Strait Islander corporation and is operating within one of the prescribed communities.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

That helps to clarify it. I will come back to it. Under the definition of a community services entity, it says:

(d)   any other person or entity:

       (i)    that performs functions or provides services in a business management area; and

       (ii)   that is specified by the Minister ...

My understanding of that definition is that the minister can prescribe ‘any other person or entity’. The minister could, by legislative instrument, prescribe one of those organisations as meeting that criteria. Is that correct?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

In the parlance of this place, Senator Siewert, I want to ensure that the you and I are reading off the same song sheet. I am looking at (d) under part 5, and the (d) that you have referred to has no context here. Perhaps you could give me the reference.

The Temporary Chairman:

Senator Siewert, what page is it on?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am referring to definitions on page 4 of the bill. It is the definition of a community services entity, which is what I understand we are talking about. I have gone to the definition of what constitutes a community services entity. As I understand it, they are the organisations that we are talking about under part 5.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

That is correct.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am glad we have established that fact. Minister, I am going to put a scenario to you, and you can tell me whether it would be possible—I am not talking about what the intent is—under the bill. A non-government organisation—I should pick a mythical one rather than a specific one—is providing a community service. Community service organisation X is providing health services in a business management area. From my reading of this legislation, it would be subject to these provisions. In other words, the government could put observers on its board and take any asset. Even though the organisation is not funded by the government, under the provisions in this bill the government could take any of the organisation’s assets.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

My reading of this is very clear. On the same page 4 that you are referring to, under the heading ‘Definitions’, part (d) says:

(d) any other person or entity:

…            …            …

       (ii)   that is specified by the Minister (whether by reference to a class of person or entity or otherwise), by legislative instrument, for the purposes of this paragraph.

This clearly indicates that the model that you have described may come under that purview. But, again, if I could just stress my previous contribution: it is the intent that some negotiation would happen prior to that and certainly before these reserve powers would apply. It is very clear in the definition that the minister could do that by reference to a class of person or entity. So the scenario that you paint is in fact correct.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

People need to be very clear about what the minister can do once that situation occurs. This could happen to an incorporated organisation, as defined under the associations act, without it having to be prescribed under the legislation because that only applies to ‘any other person or entity’. The bill states:

(2) The Minister may give a direction, in writing, to the entity to do any of the following for the purpose of providing funded services in the business management area ...

I think we have clarified that assets do not have to be funded for the specific provision of that service. The bill goes on to say:

(c) if the asset is in the entity’s possession—transfer possession of the asset to:

  (i) another community services entity; or

  (ii) the Commonwealth; or

 (iii) a specified person;

(d) if the asset is owned or controlled by the entity—transfer ownership or possession of the asset to:

 (i) another community services entity; or

 (ii) the Commonwealth; or

 (iii) a specified person.

As I understand it, that asset does not have to be funded under the funding agreement that we are specifically referring to in part 5.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I have been informed that that is not the case. These reserve powers are to ensure that the services are delivered in a community to a specific standard.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Could you clarify that? The government’s position is that this part refers only to assets that are funded under the specific funding agreement that the government is seeking to alter under part 5, clause 65.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Again, for clarification: if those assets were owned, in the circumstances that you describe, by an NGO, a community government council, an incorporated association or an Aboriginal or Torres Strait Islander corporation incorporated under the act, yes, that would be the case. Perhaps I can paraphrase your question: if an NGO has an asset that is not owned or funded by some Commonwealth process, what is our capacity to direct that asset? Can I take that on notice and get back to you in a few moments?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I would also like clarification on clause 68(1), which says:

This section applies if:

(a) a community services entity owns, controls or possesses an asset; and

(b) the entity provides services in a business management area; and

(c) the Minister is satisfied that:

 (i) the asset’s use is required for providing services in the area; and

 (ii) funding has been provided by the Commonwealth or the Northern Territory that could be used to provide those services ...

Would you please provide an answer with respect to that clause?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As you suspect, it is any asset that belongs to those bodies, as previously described, delivering services within the community.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

These are very significant powers that, I think, will put organisations off wanting to work in prescribed areas. For example, if I am an NGO and the government can decide to off my assets—let’s get very particular here—and think that they might be good for providing some services—

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition (Social and Community Affairs)) Share this | Link to this | Hansard source

Senator Stephens interjecting—

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Senator Stephens, a bus is a very good example. The government could say: ‘That bus can provide the services. We’ll require you to give it to another community service organisation or to the Commonwealth’—which means take it to the Commonwealth—‘or to another specified person.’ If this is about delivering services in communities, there is a lot of power here and an awful lot of things for community organisations to be very worried about, because it is not limited. My interpretation is—and I think I have just had that agreed—that, if an organisation has an asset that may be used in one of these business management areas, it can be taken. This is astounding! If I were running an organisation, like I used to, I certainly would not be providing services in these areas because the government can come and take any of the other assets that it thinks might be useful to deliver services in that area.

This is way beyond what the government was talking about earlier in trying to improve services. I understand what the minister was trying to say earlier. I do not agree with it, but I understand that what the minister was trying to say earlier was that this is about improving delivery of services in the business management areas. As I said, I do not agree with it, but this is way beyond what the government was talking about earlier. I would be really happy to be told and shown in this bill where the brakes are put on this. You have just agreed with my interpretation that it is wide open for the government to come in and require community service entities—because the definition is very broad—to do things and use their assets in ways that those community service organisations may not want to, as well as put observers into the organisations to spy on them. I understand that applies to any community service entity that may want to put up its hand to carry out services in the business management or prescribed areas. This is another huge disincentive for any organisation that wants to provide services into these areas, yet the government keeps saying they are trying to improve services. This is a huge disincentive to that.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Perhaps for further clarification, I could go to clause 68(1)(c) where it states that the minister has to be satisfied that the asset’s use is required for providing services in the area, but most importantly subclause (c)(ii) states that funding has been provided by the Commonwealth or the Northern Territory that could be used to provide such services.

I have been at some pains to explain that these are reserve powers. The notion from Senator Siewert is that suddenly this will be a disincentive for people coming there to provide services. This is simply a mechanism to ensure that a service paid for by either the Commonwealth or others is supplied. The challenge normally is that the service provision is not up to standard and this legislation gives the minister capacity, as a reserve power, to act to ensure that that service will be supplied. The underpinning process of this whole matter is that the intent is to provide a service to a high level of amenity and provide a sense of wellbeing throughout the community so that the community can enjoy access to amenities available to every other Australian. That is the intent of this and, as I have gone to some pains to explain, this is a reserve power that enables the minister to take action in the circumstances where other negotiated processes and arrangements have not reached agreement.

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition (Social and Community Affairs)) Share this | Link to this | Hansard source

Minister, in relation to the questions that Senator Siewert is pursuing, will you comment on this: where a homeland association may have been a CDEP provider, is it the intention under this legislation that, with the withdrawal of CDEP, the resources in that community which are related to it and have been raised through the CDEP could be acquired and directed to other employment programs, therefore stripping the homeland association of the capacity to tender for something like Work for the Dole?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I recognise you were not present during some of my earlier submissions, Senator. The homeland process and movement principally deals with outstations, and this only refers to the prescribed communities, which, generally speaking, excludes outstations, town camps and those organisations that are operating within a current municipal shire.

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition (Social and Community Affairs)) Share this | Link to this | Hansard source

Thank you for the clarification. Let’s take the homelands out of it. In relation to a current CDEP provider—and there are many successful providers who are underpinning the social and community services in those communities—is it an effect of this legislation, given your explanation to Senator Siewert, that some of those CDEP providers could lose the assets that are within their organisations, thereby preventing them from successfully meeting the tendering requirements for other programs such as Work for the Dole?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I will accept that we are trying to find some sort of exemplar to carve the argument around. If the providers were providing services as a community government council, an incorporated association or an Aboriginal and Torres Strait Islander corporation within one of the prescribed communities—and I am assuming that you are referring to the fact that that might mean they are also providing some sort of service outside the community—then, yes, that would be the case in that scenario. But, as I say, these powers are specifically reserve powers to be used within prescribed communities and not within the outstations. The CDEP is not a matter for this legislation at the moment.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I indicate on behalf of the Labor opposition that Labor will not be supporting Democrats amendment (5), which is to oppose part 5 of the bill relating to business management areas. We see this as part of what is essential to the emergency intervention. Labor will be supporting the government on the question that part 5 stand as printed. So we will not be supporting the Democrat amendment. I just thought I would indicate that, as that is the matter before the chair.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I want to go to another clause in part 5 as well. Division 2, subdivision A, clause 67(2) states:

(2) The Minister may give a direction, in writing, to the community services entity to do all or any of the following:

(a) provide the service—

which is fair enough—

(b) provide the service in a specified way (including directing that a specified person is to do, or is not to do, any specified thing in relation to the provision of the service) ...

Does that mean that the level of micromanagement that will go on is actually where the government, through the minister, will be specifically directing what people will be doing and who does what?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Consistent with the remainder of this aspect of the legislation, this is a description of a reserve power. At the end of the day, if the minister thinks that we can provide further protection to children and families through ensuring that this reserve power can ensure that the services are delivered, or that the outcomes that the minister intends to deliver through this emergency intervention are delivered, then that indeed is just another reserve power.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Saying that these are reserve powers is a very cute way of fooling people into thinking that it is all okay, this is not really going to happen. It is absolutely outrageous legislation. You are giving yourselves the power—whether it is reserve or not, the fact is that it is in the legislation and it can happen—to virtually take control of a non-government organisation, put observers in there and take their assets, if you are funding them. If you are providing an organisation with a service you are now writing into legislation that you can take their assets and give them to yourselves, to another organisation or to another person. It is absolutely extraordinary. As I have already articulated, we will be supporting this amendment. In fact, it is also incorporated in one of the amendments that we will move, which is to oppose parts 3 to 6. This is an extraordinary piece of legislation. The government is trying to be cute, to tie it up by taking this power, micromanaging communities—because that is what it is—and calling them ‘reserve powers’. It is absolute nonsense. It is a furphy trying to disguise the fact that you are taking these extraordinary powers. We will be opposing this.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

As there is some desire to extend to 20 past seven, I wanted to ask one more question rather than just put the vote. I presume we would need to move out of committee first.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

We will be reporting progress at 6.50 and there will be a procedural motion to continue in committee, which is imminent.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

APerhaps I will ask the minister in the 45 seconds available. He can ponder the answer while he is moving the procedural motion, because we all know he is multiskilled. The broader issue, which I think goes to a key issue raised in the Scrutiny of Bills Committee report, is the exercise of all these reserve powers, which Senator Siewert has just been outlining. What sort of scope is there for any sort of review or appeal of any decision that is made using these reserve powers? Is there any scope for anybody who is affected by them to have any sort of standing or any sort of enforceable right of appeal or review of those decisions?

Progress reported.