Nick Minchin (SA, Liberal Party, Leader of the Opposition in the Senate) Share this | Link to 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.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

From the outset, in discussing the objects, I believe that this bill neither responds to—as it certainly ignores the overwhelming view of Australian wheat growers—nor advances the position of Australian wheat growers. I cannot see how we can claim that it is responsive when it does not actually acknowledge the overwhelming sentiment of Australian wheat growers, who do not want to lose the single desk. They do not want to lose it because they believe losing it will not advance their position.

It is well and good to talk about individual producers, but we have to find out the full proposition with regard to their access to ports. There has been some conjecture as to whether, if this goes through—and I do not want it to—some individual traders will have access to ports, and the proposition with regard to individual producers I imagine falls into the same category.

I also seriously query the technical capacity of this act in regard to some of the major exporters who currently have agreements pertaining to ownership of ports—I specifically refer to ports in Melbourne. I query whether this act, as it currently stands, is technically correct or whether it has a fundamental flaw in its drafting. I specifically refer to whether the AWB will have clear and unambiguous access to their port. I understand that, although this is a technical inadequacy in this bill, we can live with that technical inadequacy until a later date, but I call into question the competency of a government that would put forward a piece of legislation that has a huge and gaping hole in the middle of it. This is an issue that I think has not even struck a feature tonight. It is amazing.

Not only are we about to vote on a bill that is technically inadequate, but no-one has proposed an amendment to fix that inadequacy up. That is something that I find peculiar in the extreme. I know for a fact that there are people running around this building tonight desperately trying to fix this hole. Now we arrive in the chamber to vote on it and, rather than fix the hole, we have just forgotten that the hole ever existed. I would like to clearly put on the record that I and the other National Party members do not support this in any way, shape or form, although it is a matter of conjecture where voting on every issue would lead. It is quite clear and apparent that this bill is neither responsive to nor advances the issues of growers. It is technically inadequate in its drafting, it comes here as a pack of toilet paper tickets and now we are going to vote on it and we are all going to look sombre and perplexed as we go forward with a piece of legislation that we know in the end has a huge, gaping hole in it that no-one wishes to talk about.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I will make what is likely to be a preliminary response. Firstly, we are debating the amendments as a whole. Some the government will be supporting, others we will be opposing. So when the time comes for the vote I will indicate those. Perhaps we will put them in two groups.

The first amendment—and I am hesitating because I am about to say ‘opposition amendments’; I am not sure whether they are amendments on behalf of just the Liberal Party—

Opposition Senators:

The Liberal Party.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

It is just the Liberal Party. I did not want to suggest that the National Party are supporting the amendments, given that you have different positions.

Firstly, in respect of the first amendment as to the objects, I indicate the government will be supporting it. The use of ‘interests’ rather than ‘needs’ is a more positive expression of intent to improve the situation of growers. The use of ‘needs’ implies a basic level, whereas ‘interests’ is broader and more proactive. It is a bit like the use of personal needs versus personal wants. We will be supporting the first amendment.

My next comments go to amendments (2), (3), (4), (5) and (6), which we will not be supporting. They go to definitions—‘individual wheat producer permitted to export’, ‘grain receivals’, and ‘individual wheat producer permitted to export’. The government has consulted extensively on the legislation, including those handful of growers who are large enough to be able to supply a hold in a bulk export ship. The government has been assured by those growers that the particular amendment that the Liberal Party has presented is not necessary. The government accepts that growers who are large enough to participate in the bulk export market prefer to operate as companies for risk management purposes. The legislation as it currently reads does not prevent individuals from applying for accreditation. The government is also concerned that allowing individuals to escape the accreditation provisions would create a major compliance difficulty for Wheat Exports Australia. The WEA would have to put in place a rigorous compliance and monitoring regime to assure itself that a grower is exporting his own wheat and not that of any other individuals. This compliance problem would create additional costs which would be passed back to growers. Whilst the government is sympathetic to the argument, the government does not support this particular amendment, on the basis that individuals are not prevented from exporting. In practical terms very few if any growers will be affected. Those that are required to seek accreditation are not concerned about that, and the cost of compliance would be a burden passed back to other growers through the accreditation schemes.

Amendment (7) goes to the operation of state and territory laws. ‘Transport WA’ might be the correct title to give to amendment (7). The government will be supporting it.

Amendments (8) and (9) go to the Productivity Commission review. The government will be supporting them, but I will put on the record some remarks about amendments (8) and (9). The start date of January 2010, as proposed, will mean that only one crop will have been marketed since the new laws will have taken effect and only two crops will have actually been harvested, as crops are harvested from October to January each year. This will mean that the review will not be able to make judgements about the effectiveness of the ACCC access test provisions which commence in October 2009. The Productivity Commission could make some observations about storage and handling, but they would be unable to make firm judgements about the full effect of the legislation in relation to marketing of the crop. Therefore having the review too early will deny the Productivity Commission the benefit of being able to make proper judgements and in all likelihood will only result in the need for another review.

The Liberal opposition have argued that the January 2010 start date is necessary to ensure a ‘fair dinkum’ review. But the effect of the amendments is actually that it would ensure that the review would not be ‘fair dinkum’, for the reasons that I have already stated. The government would consider a review with a start date which allowed the Productivity Commission the benefit of being able to consider the effect of at least one season of marketing a crop, and therefore a start date of July 2010 and an end date of January 2011 would be acceptable. Having considered the issue, to those comments I add that we will support the amendments.

They are all the amendments we have before us. An issue has been raised by Senator Joyce. Firstly, I have to make the point that this is a matter on which, I understand, the Australian Wheat Board has been making representations to some members of parliament very recently. It is a matter that has come to the government’s attention only very recently and it has been considered. The government does not believe that the change that is being suggested by the AWB, as suggested by Senator Joyce, is warranted. The issue that has been raised by the AWB is a commercial matter between the joint venture partners. It is unreasonable to assume that a joint venture partner who relies heavily on access to a port terminal facility would have no control over its operation. Therefore the Labor government believes it should be resolved between the partners themselves. It is not up to the government to intervene by legislation in what we see as a commercial issue. To allow an accredited exporter with a significant interest in a port terminal facility an exemption from the access test would undermine the integrity of the scheme; therefore there is no amendment before the committee and the government has not proposed an amendment. But I have made those comments in response to the issue raised by and the comments made by Senator Joyce.

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

I want to respond to the government’s elucidation of their position on our amendments and welcome the government’s support for most of our amendments. I note with respect what the government have said on the review, but I think that, from the point of view of growers—and we know, as I was able to experience earlier in the week, there are some growers who are not happy with this—a review at the time that we have proposed does make a lot of sense. Ensuring, for their confidence, that this will be looked at at an appropriate time is important. It may well be that further reviews are required—I am sure they probably will be—in order to ensure that Australian wheat growers are satisfied with the continuing operation of this new system, but I do not think that is a reason to further delay the review as proposed.

I am disappointed that the government are not able to accept our amendments with respect to individual wheat growers. We do not accept their arguments. We do think individuals should be able to market and sell their own wheat without having to comply with this regime, and we will be pursuing those amendments.

With respect to the matter Senator Joyce raised and to which Senator Sherry responded, from the point of view of Liberal senators we think this is a matter for the government. We are not at this stage persuaded—as, it appears, is the government, from Senator Sherry’s remarks—that further amendments are required. I am certainly sympathetic to the arguments put by Senator Sherry that this is a matter between the joint venture partners. It is a commercial matter for them, and we are not persuaded that further amendments are required.

However, can I say to the chamber that, from a procedural point of view, if the government does not accept our amendments with respect to individual growers and the chamber nevertheless passes those amendments, the bill will inevitably have to go back to the House of Representatives, where the government will have to consider its position on the amendments made by the Senate that it does not agree with. That would be an opportunity for the government to further consider this matter if it so chose. Then of course the bill will have to come back to this chamber, where this chamber will have to decide what its position will be on the amendments in the event that the government indicates in the lower house that it is not prepared to accept those amendments. So I suspect we will be talking about this bill once more next week—through you, Mr Chairman, to Senator Joyce. In the meantime, the government will have the opportunity to further consider its position with respect to the joint venture matter. But certainly at this stage, it is the position of Liberal senators that we concur with the remarks of Senator Sherry on that matter.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I understand completely the tactics. We certainly want the ability to ventilate this issue further. I personally would support amendments that I think are not so much non-controversial as inconsequential, but they are consequences only in that they make the issue go to the other place and then return here. I understand that completely. However, I ask this question of the government: did you consider an amendment to deal with the issue that pertains to the obvious technical inadequacies of the bill in dealing with the access regime between AWB and the Melbourne port?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Firstly, in respect of Senator Minchin’s analysis, having been in this place long enough I accept the Realpolitik that he outlines. Secondly, Senator Joyce, I have already indicated that the government have considered the issue. I have indicated our position: we do not believe that an amendment is required. It is a commercial decision between AWB and the Melbourne port.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

In considering the issue, did the government draft an amendment?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am advised we did draft an amendment but decided, after receiving advice, not to proceed.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I thank the minister for correcting the record. Can the minister outline the role of the ACCC with regard to access regimes, as the legislation currently stands?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The role of the ACCC is outlined in the bill. As I have already remarked, it is not uncommon for many amendments to be considered and drafted in respect of many bills and for them not to make their way into the chamber after reflection on whether they are appropriate. It is a commercial decision between the AWB and the Port of Melbourne.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So the role of the ACCC will now be fundamental in the determination of access regimes; is that the case or not?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I go back to the provision in the bill: from 1 October 2009.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Can you please advise the chamber as to exactly how that operates with regard to the operation of entities that will want to access ports under this current bill?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

For the period until 1 October 2009, accredited exporters who operate port terminal services will have to publish the terms and conditions under which they will allow access to other exporters. After 1 October 2009 they will also be required to have access undertakings in place with the Australian Competition and Consumer Commission for port terminal facilities.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So prior to that time, the commercial terms and conditions do not have to concur with the ACCC?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

They have to provide access, they have to publish the terms and conditions and, if they do not, they are revoked.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I ask the question again: does that process, prior to that date, involve the ACCC?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

As I think I have indicated twice, no.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Thank you for that answer, Minister. Prior to that date, how is another entity, in their negotiations on is the price, going to have access to a dispute resolution process with regard to what is a commercially fair term, considering they do not have access to the body to do it?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The general provisions of the Trade Practices Act will apply.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

As the general provisions of the Trade Practices Act apply, what arbitrary body is going to deal with them?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The ACCC and the courts.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Did you not just say the ACCC does not apply prior to that date?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The general competition law under the Trade Practices Act applies. That act exists at the present time.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So you are now saying the ACCC is involved prior to that date?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Your question went to the specific reference for a date in the bill. I have drawn your attention to that date in the bill which is quite specific. The Trade Practices Act applies before that date.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Can you please refer me to the section of the Trade Practices Act? I really am wondering about your answer, because we have had an answer that the ACCC does not apply. Now, within two minutes, we have an answer that the ACCC does apply. In the meantime, I am in a complete quandary as to who is the determinant body to work out what are fair and reasonable commercial terms because, under your legislation, there will be inevitable discussion as someone tries to get access to a port.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Before 1 October 2009, it is normal competition law under part IV of the Trade Practices Act, section 46, Misuse of market power.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So we are going to use section 46 of the Trade Practices Act prior to 1 October 2009. Can you please inform us how we are going to determine commercial terms in usage of that act, if that is the case now? Your answer really is that the ACCC is involved prior to 1 October 2009 and after October 2009. So they are involved. That being the case, can you please inform me of the dispute resolution process and how it is currently utilised in Australian trade practices law for the determination of commercial terms? Do you believe that this will be a fluid and immediate resolution process or do you think it will reflect the current resolution process, which on issues like the Telstra access regime has meant seven years now in the courts?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

It is correct to say that potentially the ACCC could become involved depending on the nature of a dispute, if any occurs.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

This is getting more interesting by the minute. They are involved, they are not involved, they are involved, they are potentially involved, and we are still waiting for the answer as to how you can believe that they will have the capacity for an immediate resolution to a problem, when under the current trade practices laws it is an elongated and confused process? How is that going to be an operable process for the people who are going to currently want to get access to ports?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

As I have indicated, part IV of the Trade Practices Act applies. If there is a dispute, it goes to the ACCC. That is why I said ‘potentially’. We do not assume there will be disputes. There would have to be a dispute and then it would go to ACCC. That is what I mean by potentially. As to your question around speed and response time and fluidity of the ACCC, I cannot give any undertakings as to that. They are an independent organisation required to handle disputes. If they are handled by the ACCC, I cannot give any undertakings as to the response time. That is up to them.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

You said that that you assume that there will not be a dispute. Can the minister inform me if there have been representations from all the parties—of which we have been told by Mr Woods there could be 80 to 100—to inform you that they are unlikely to dispute an access regime clause?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Senator Joyce, I do not know whether there will be a dispute or not, or, if there is, how many there are going to be. You argue that there will be X number of disputes. I simply do not know. How do we know? You cannot pre-judge and say, ‘There will be disputes.’ I do not know and I would suggest that you do not know. You may speculate and believe there may be disputes, but I cannot give an undertaking that there will not be disputes. But if there are, it is a matter for the ACCC to determine.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

In the past minute you have once again completely contradicted the statement you made previously to the Senate. You said that you assume that there will not be disputes. Then in your next answer you say that you do not know, that there could be a number of disputes. Can you not see that in this process we are getting a different answer to every question we pose?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

That is your interpretation. I stand by my comments.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I stand by the Hansard, which will be well and truly read after this committee hearing is heard. To get you out of the embarrassment of that position, could we please move on to the next one. Can you please explain to us the dispute resolution process to determine commercial terms after 1 October 2009 and how you intend that process to be immediate and convenient and work in the capacity of the commercial terms that will be required?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have already outlined the process and I do not intend to add anything further, Senator Joyce.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

This is a committee hearing, and I think the Australian people and all those who are listening have a right to know. Could you please give us some illumination on what you believe the dispute resolution process will be? Your whole resolution hangs off this access regime clause. Putting aside the technical inadequacies surrounding it, where we have a complete debacle with regard to AWB’s access to their own port, can you please explain what will be the determinant action that will decide commercial terms when parties go into dispute after 1 October 2010?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have already indicated that. I do not want to do so for the third time but I will for you, Senator Joyce—access undertakings which the ACCC sets.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Have you given guidance to the ACCC or have they been in conversation with you or your department about how they will determine, or what the parameters are for determining, commercial terms for access to the ports?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The guidance is in the Trade Practices Act, Senator.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So the answer to that is: no, you have not?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The guidance is in the Trade Practices Act, Senator.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I will pose the question again. Have you been in any form of communication with the ACCC with regard to the commercial terms and how the determination of commercial terms will be set out post 1 October 2009? You either have or you have not.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I believe we have canvassed this well, but it obviously has not been to your satisfaction, Senator Joyce. We have outlined the situation with the ACCC, how the Trade Practices Act will apply. I do not have any further comments to make.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I put on the record that you did not answer the question.

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

I would like to put on record the Greens’ position on these issues. I have a number of questions for the minister and also, if it is appropriate, for the opposition, because I seek clarifications on a couple of points in their amendments. I will firstly go through our comments on the various amendments.

The Greens will be supporting amendment (1), which is a change to a clause. We think it reads a little bit clumsily but we will support that amendment. We do not support amendments (2) to (6), dealing with individual growers, for many of the same reasons as the government, in fact. We believe the accreditation system has been developed to put in place some surety for the system so that the system has some integrity. Firstly, we are concerned that individual growers on their own are not likely to be able to produce enough for bulk export. Secondly, without accreditation, we are concerned about the integrity of the system, quality control and also, as the government has already articulated, the need to put in some sort of checking system to ensure that it is the growers’ wheat that is being exported. So we have some concerns around those amendments and will not be supporting them. In terms of amendments (4) to (6), I will come back and ask Senator Minchin some questions. We question whether they are in fact necessary.

I understand item (7) regarding the operation of certain state and territory laws is largely driven by my home state of Western Australia, which still has laws in place. I would like to confirm whether this item is there not only to deal with that issue but also to deal with any future state governments who may introduce laws restricting transport by road. We have some concerns there. Obviously we are keen to see as much grain being transported by rail as possible, and into the future this is going to be an increasingly important issue. We are a little bit concerned that that may restrict an orderly approach to rail transport.

In terms of timing of the review, in particular we support item (9), which sets a reporting date. That should be required; when starting a review you obviously need a reporting date. We also share the concerns about the limited time for the review. It only allows for one season of a properly functioning market. Obviously, if it turns out that there are major problems with this system we want to pick them up as fast as possible, but I suspect we would pick them up anyway, even without this review. We would have preferred to see the date for the beginning of the review remain 1 January 2011, but with a reporting date of 1 July 2001. Having said that, we will not oppose this amendment.

I will now go to my questions of both the government and Senator Minchin. I will deal with the accreditation process first. I have a few general questions around the accreditation process for the minister. As I understand it, the government has allocated $1.15 million to an information program. Is the minister able to provide any details on what that program will look like so that growers have an idea of the services that will be provided? Will it provide financial education and counselling in marketing and risk management, which were recommendations of the committee inquiry? Will the government guarantee that the program will be extended beyond one year? As I understand it, resources have only been allocated for a year. Will it guarantee that, if the program is needed and there is demand from farmers, it will be extended beyond the first year?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

As Senator Siewert has indicated, there is $1.15 million to help growers and customers understand how the arrangements will work and the options available. I have just consulted with the officials. Discussions are being finalised at the present time as to details of delivery. I am informed it will be approximately two weeks before the final details are ready. I am able to indicate that as soon as they are available in detail we will be able to provide them to you or, for that matter, to any senators who require them.

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

Sorry, but I may have started those questions saying ‘access’. I have questions on access. Obviously I was referring to the accreditation process. Minister, I appreciate your answer that the details are coming, but I am particularly keen to know whether it is just information about the new regime or whether it is in fact information on financial counselling and risk management support, which were clear recommendations. Those issues were teased out during the committee process.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am informed that the two issues you have raised are part of the package.

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

The third one was around whether it goes beyond one year. I am aware of the discussions that went on in, for example, South Australia when the barley market was deregulated and there was cancellation of some of the information programs because they were not needed—and I appreciate that. I presume you are being cautious because of that, but I think this is a much bigger issue. I think there are bigger problems here, and I am keen to know if the government is prepared to make sure that there is funding available if it is necessary to go beyond the 12 months of the program.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

It is important that all industry participants are fully informed about the new arrangements and how they can take advantage of the opportunities available. For the sessions to be most effective they need to be completed before the upcoming harvest. The department is working with state farmer organisations to develop an information program which covers all bases and is accessible to industry stakeholders across Australia. We are confident the program will address industry needs. But, if it is found after the first harvest that further assistance is required in this area, that will be considered.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Minister, can you please inform us whether there is any security of payment from accredited exporters to growers?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Under the current arrangements there is no guarantee of payment for wheat delivered to the national pool. Grower confidence in being paid under a single desk is based on AWBI’s payment record and credit worthiness. Similarly, under the new system, the best way to ensure payment security is for a grower to exercise commercial judgement on the credit worthiness of a marketeer they choose to deal with. WEA will only accredit exporters who pass a strict probity and performance check. For example, exporters may need to provide in their application evidence of sufficient liquidity to meet the estimated maximum wheat tonnage they intend to export. WEA will also regularly review the financial conditions and activities of accredited exporters to make sure they are complying with the conditions of their accreditation.

While the assessment process is designed to ensure only reputable exporters are accredited, it does not guarantee payment and it remains the grower’s responsibility to perform their own due diligence in choosing exporters. When growers deliver wheat to AWBI they receive an advance from AWBI which is actually a loan. This loan is paid up as AWBI sells the wheat. Not only do they not own the wheat; they have to repay AWBI. The financial exposure of growers to marketeers of wheat that may go broke will be the same as for other agricultural commodities and the same as for AWBI at the present time.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So your statement, Minister, is that there was no security in the past—though you acknowledge that there was forwarding of funds—and therefore there will be no security in the future. You premise your answer around the liquidity process that would be part of the accreditation process under the WEA. I pose the question: will that liquidity process be affected if the new accredited exporter has an incapacity to export their wheat because of the inability to get access to a port because they are being dragged through the courts by reason of an elongated process, trying to find resolution through the ACCC? Do you not acknowledge that that could affect, even at an initial stage, the liquidity of any accredited exporter unless you get that accredited exporter to come into the WEA office with a signed-off access regime on commercial terms?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

There were a lot of hypotheticals there that, in your view, are connected to the issues that you have been raising in the committee debate. I have nothing to add to the detail that I provided in terms of the specific issues you have raised.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

But I confirm, though, that your statement is that there was no security in the past and there will be no security in the future. So when a farmer delivers to an accredited exporter they must work on the premise that there is no security in their payment, even though the goods become the possession of the person who takes them, the accredited exporter, and they have not got a redeemable asset?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Senator, you reworded the same question. I have made my comments and answered your questions.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I confirm that the answer is yes. What were the issues you considered with regard to the problems at Melbourne Port when you previously acknowledged that you did actually look at a draft of an amendment?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

As I have indicated, governments of both persuasions look at lots of different amendments and may or may not proceed with them. I have covered your question.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So you acknowledge that there were issues that certainly needed considering?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have answered your question.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

You have not answered my question; you have actually been mute on the issue. You have given us reference to part IV of section 46 of the Trade Practices Act as a reliable mechanism to determine the access and commercial terms. Can you please give me an example of where this has worked in the past, so that we can give Australia some sense of confidence in how it is going to work in the future?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have already dealt with the question and I do not have anything further to add to it.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Do you know of any area where part IV of section 46 of the Trade Practices Act has been a reliable mechanism?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have answered your question.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

You have not answered my question, Minister.

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

I am not sure if Senator Siewert is going to ask me any questions as she indicated she might, but I am happy to answer any questions she may have. I will just pick up a couple of points particularly with respect to the security of payment in the matter that Senator Joyce raised. Senator Sherry said that there is currently no formal security of payment arrangement. Of course, what is contemplated here is simply that wheat growers, like every other person in business in this country, will rely on the operation of the ordinary laws of this country, as they do now in effect and will in the future. There are laws governing the enforceability of contracts, and that applies to you whether you are selling your wholesale bananas to the local retailer or whether you are selling to an accredited exporter. I point out to Senator Joyce that growers, like any other producer of any widget or any other product or service in this country, will of course have recourse to the ordinary laws of this country which, at a state and federal level, provide a greater degree of security in the law than those of virtually any other country on the planet. So I do not think that, out of this debate tonight, we want any sense among Australian wheat growers that suddenly they are being thrown to the wolves by this bill. That would be so far from the truth as to be ridiculous, so I do not think that that furphy should be allowed to run.

With respect to Senator Siewert’s remarks, I express surprise and disappointment that the Greens are not able to support our amendments with regard to individual growers, and I do not think that it is a sufficient argument against these amendments to surmise that there will not be individual growers who will have the quantities of wheat to export in bulk. That is not a sufficient reason to oppose the right of an individual grower who has or may have the opportunity to export their wheat without going through this process. Much of the purpose of the accreditation scheme is to give growers who wish to export their wheat through an exporter a considerable degree of confidence in the financial wherewithal and capacity of that exporter. That is part of the reason for the accreditation. That is obviously, by definition, not necessary if the wheat grower chooses to export their own wheat. As our amendments make clear, with respect to whether someone might cheat the system by exporting somebody’s wheat, they would, by definition, be breaching the act, because our amendment very specifically refers to an individual producer exporting wheat produced by that individual producer. Were they to seek to export wheat produced by somebody else, they would automatically not be covered by our amendments but would be covered by the requirements of the act with respect to accreditation. So I do not think that that is a legitimate argument either.

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

Since we are going there anyway, I will go onto that issue, although I do have some further questions of the government. We agree with the government on that issue in particular—of putting in a compliance regime to find out whether it is the grower’s wheat or somebody else’s wheat. Could Senator Minchin explain how the opposition envisages that that would happen? And while I have his attention, I might as well ask about items (4) to (6), and that issue in particular. I seek further explanation on that amendment because it seeks to exempt individual exporters from the requirements to produce the export report and the annual compliance report. As they are exempt from the accreditation system anyway, why would those amendments be necessary?

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

I thought I had explained it, but I am happy to do so again. In our view, an individual who is capable of producing wheat in sufficient quantities to export their own wheat and not be reliant on an accredited exporter should, by definition, be able to do so. We fundamentally believe in free enterprise and we do not see any need for unnecessary regulation. Indeed, I thought that was one of the mantras of this government. They renamed my old department the Department of Finance and Deregulation. We are yet to see the evidence that would support such a change of name. Nevertheless, we also agree that regulation should only be imposed on Australians where it is absolutely necessary, and we see absolutely no necessity to impose on an individual grower, exporting their own wheat, the necessity to comply with provisions that are in there for the purpose of ensuring that growers who use accredited exporters, rather than export their own wheat, are properly protected.

This bill, to the government’s credit, does provide a lot of protection for growers using accredited exporters, but, by definition, there is no need for that if the grower is exporting their own wheat and not doing so through an accredited exporter. That is the purpose. To ensure that those relevant provisions do not apply to a grower exporting their own wheat, we have followed the expert advice of the draftsman and attached (4) to (6) to proposed clause 86A, because, by definition again, the act does not apply to someone exporting wheat in bags or containers. We think, therefore, by definition, that the same exemptions from the operation of the act should apply not only to someone exporting wheat in bags or containers but also to an individual producer exporting their own wheat. Of course, with respect to the matter of whether it is their own wheat, any grower who tries to cheat the law by setting themselves up as an exporter to get around the act and export somebody else’s wheat is, by definition, breaking the law, and they will bear the full consequences of so doing—just as anybody else who breaks the law in this country does. We do not believe that you should set up some sort of police-state mechanism to check everybody’s wheat, but the individual wheat grower will know that they will be breaching the law should they attempt to export anybody else’s wheat other than their own.

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

I am seeking a bit of further clarification. I may be misunderstanding the bill or reading something into it. Firstly, Senator Minchin—through you, Chair—I am presuming that, in response to my question about how we guarantee an individual is in fact only exporting his or her own wheat, you are not proposing any checking mechanism, which I have some concerns about. My second question was about amendments (4) to (6). As I understand it—and I can totally understand why this is—you have individual wheat growers who are exporting who are exempt from the accreditation process. I would have thought that they were then automatically exempt from compliance with the accreditation process. That is why I am questioning those particular amendments. I am presuming that the other amendments in there dealing with bags or containers are because wheat exporters who are exporting bulk wheat may also export in bags and containers, and therefore this bill is saying, ‘You don’t have to report against those but you have to report the rest.’ Maybe I am confused. I am asking why we are putting the individuals in there when quite plainly if this amendment goes through they will be exempt from the requirements of accreditation.

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

Based on draftsmen’s advice, amendments (4) to (6) are required to ensure that individual wheat growers exporting their own wheat are not caught up in the accreditation process and the act does not apply to them. Of course, as you know, Senator, for quite some time the current regime regarding bulk wheat export has not applied to the export of wheat in bag or containers not capable of holding more than 50 tonnes of wheat. That has been the case for a very long time. The government, properly, is ensuring that such exports continue to be exempt from this operation. We want to exempt not only that sort of export of wheat but wheat exported by the producer of the wheat. Based on advice, the best way to do that and ensure they are not caught up in the accreditation process is to include these amendments. Can I say for the record that we on our side have enormous faith in the honesty and integrity of Australian wheat growers and we think it would be quite improper, wrong and unacceptable for this Senate to suggest that any wheat grower exporting their own wheat would want to cheat the system. We do not accept that; we do think they are honest farmers.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I think it is very gallant that Senator Minchin defends the government. I do not quite know who to pose this question to but I think I will pose it to the minister. It has been stated here tonight that the passage of title in wheat is the same as the passage of title in other goods—such as cattle, I presume. Do you believe that to be the case?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have already outlined the arrangements and so has Senator Minchin. On this occasion we agree. Usually we do not, but on this occasion we agree.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I will help you out then. For goods such as cattle, the title passes with the payment for the goods, which is generally underwritten by the stock and station agent. However, with the passage of wheat you become an unsecured creditor, so the farmer is an unsecured creditor for the product. It is intrinsically different. So to put the proposition that the law that you use to claim recourse for nonpayment for such items as cattle and sheep is the same law that you use to claim recourse for the nonpayment for such items as wheat is intrinsically wrong. With one you can redeem your property and with the other one you stand in line as an unsecured creditor. Do you believe that to be the case or not?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have already indicated what our considered view is on these matters, Senator Joyce.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I put to you, Minister, that your considered view is not very considered and it has become more apparent throughout the night that your knowledge of the issue is incredibly lacking.

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

I have a few more questions of clarification for the minister. I will try not to take too much time. I am now trying to chase some answers and clarification over Wheat Exports Australia. In the minister’s second reading speech he said:

Wheat Exports Australia will regularly review the financial conditions, and activities, of accredited exporters to make sure they are complying with the conditions of their accreditation.

Seeing as we all know that the last WEA had some fundamental issues and some of us believe that part of the AWB scandal was due to the poor ability of the WEA to audit and properly see what AWB was doing—so we are quite keen to make sure that WEA has got sufficient powers to do their job—could you tell me how regularly the government expects the WEA to conduct their regular review function? I should note that in the bill it does not say the WEA will regularly review; there is just a requirement for annual reports from exporters and powers to direct audits and seek information. I would like to see a clarification of what ‘regularly review’ means, and does the minister have something broader in mind than what the bill says?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

This is a matter for the WEA board. They will examine the risk profile of each entity and determine what is appropriate according to that profile.

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

Why then did the minister say ‘regularly review’ if that is not what the government intended? Does it intend more than, as I asked before, just the annual reports? This is an important point that people want to know about. The last WEA failed and we want to make sure this one does not.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

There is an annual audit and they will check according to what they believe are the criteria for risk assessment and risk profile. They will assess that depending on what they see—it may be monthly or it may be six-monthly. They will have a look at each entity to determine what is appropriate.

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

I am not entirely satisfied with that answer but I know I am not going to get any further on the matter. Will interested parties have the ability to complain to the WEA about an exporter who they think is not complying with their accreditation?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Yes, they will.

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

Will the WEA then be compelled to take action in response to such complaints?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The process is similar to ASIC and APRA, which are the regulators I am familiar with. When a complaint is laid, they will look at the details of the complaint and take legal advice as to whether there is any enforcement action that needs to be taken. They will then act on that legal advice.

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

Will they then be required to provide the reasons for the decisions to the person making the complaint?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Yes. Under administrative law they would be, even where they decided not to take any action.

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

This is my final question in this particular area, depending on the answer. How will the government ensure the WEA is in fact exercising its powers appropriately? Who audits the auditors?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

They are answerable to the minister in the same way that APRA and ASIC are answerable. They are independent organisations set up under an act of parliament. The process will be that if the minister believes they are not doing their job appropriately then the minister has to take the required action.

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

I did warn you that I may have another question if the answer needs clarifying. The reason I am asking this is that previously WEA did not seem to be that accountable to government. I am sure wheat growers would like to know that there is going to be a guarantee the minister will keep an eye on what is going on and take appropriate action. Last time, as you are aware, that did not seem to be the case.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The wheat authority is really no different in its approach, from other regulators. The two I am most familiar with are APRA and ASIC. The minister will be keeping a very close eye on things, I am sure, given the nature of the changed arrangements that are being debated tonight and will follow once the legislation is passed. Knowing the minister as I do, he will be keeping the entire process under very, very close check.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

As Senator Siewert has broached the issue of the board of the WEA, what selection criteria does the minister propose? What qualifications do board members need? How much input are you going to recognise from peak industry bodies? What transparency and review of that process is going to be delivered to the parliament?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Clause 41 of the bill provides:

(1)

Each WEA member is to be appointed by the Minister by written instrument.

…            …            …

(2)

A person is not eligible for appointment as a WEA member unless the Minister is satisfied that the person has:

(a)

substantial experience or knowledge; and

(b)

significant standing;

Then the clause provides quite a list of background expertise through to:

(n)

grain handling.

There is a whole range in between that I will not read out. Then it concludes:

(3)

A WEA member holds office on a part-time basis.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I thank the minister for that answer, but I too can read clause 41.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I have some additional information. The minister has established a selection committee, chaired by the Secretary of the Department of Agriculture, Fisheries and Forestry, Dr Conall O’Connell, to provide him with a list of candidates for consideration. Other members of the committee are Dr John Laker and Ms Jenny Varcoe-Cocks. I know John Laker very well and he is chair of the Australian Prudential Regulatory Authority. I do not think you could get a much more respected and senior figure in regulation than Dr Laker. The minister will make the appointments of WEA chair and members based on the necessary skills and expertise required to govern WEA, in particular to ensure the operation of the accreditation scheme. I mentioned Dr Laker because he is personally known to me. I do not know Ms Jenny Varcoe-Cocks, but I do not in any sense suggest that she does not have appropriate background or qualifications; she is just not known to me.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Seeing you know him well, I ask you to explain Dr Laker’s involvement in the wheat industry so far.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

This is a gentleman who is on the selection committee—he is not going on the WEA itself. He is the head of the Australian Prudential Regulatory Authority. He is responsible for the prudential oversight of banking, insurance and credit unions in this country—it is a very responsible position.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I do not, for one moment, cast aspersions on Dr Laker’s character. The question I asked—quite clearly—is: what does Dr Laker know of the wheat industry?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

He is one of three people making judgements about recommendations to the minister about who will be the individuals on the regulator. In that sense he is superbly qualified.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

If Dr Laker does not have any experience in the wheat industry, can you inform us whether either of the other two individuals have any experience in the wheat industry?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The three people who will make the recommendation to the minister are experienced in gathering together names. Their job is to gather together names and assess the backgrounds of people who will then be put to the minister.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

From that I gather that none of the three have any experience in the wheat industry.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

They will be providing advice to the minister against selection criteria, which, obviously, include expertise in the wheat industry, as to who would be appropriate and effective members of a regulator.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Seeing none of them have any experience in the wheat industry—and looking at the qualifications you have spelt out in clause 41—is it possible that they could select a board that has great experience in regulation, public policy, business, law, and other international marketing but that no-one on the board may have any experience in the wheat industry?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

This is a three-person group which will give advice to the minister—against the selection criteria—as to which individuals would constitute a board which would provide effective prudential regulation of the wheat industry. That is the position. I think it is a very robust and considered process. It does not seem to me to be in any way an unreasonable process of consideration then recommendation to the minister—I think it is very sound.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Have you quarantined a position on the board specifically for someone who has experience at the grassroots level in the wheat industry?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The criteria include wheat industry background.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I pose the question once more: is there even one position on the board quarantined exclusively for someone who has had experience in growing wheat?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The answer is no. There is no specifically allocated person on the board, but the selection criteria include that as one of the criteria against which a recommendation will be made to the minister.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

It would be peculiar in the extreme if one of the criteria was not wheat. Thank you for answering the question, Minister. You have now confirmed that no-one on the board need necessarily have any experience in wheat, and the board could be totally selected without anyone having any experience in wheat. Yet this is the body that is going to have the Australian wheat industry in its hands. Do you propose to review this legislation in the future to have more of a nexus between the WEA and wheat growers?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The wheat growers are not excluded. I suggest you wait until you see the individuals that are appointed and take your considered view then as to whether you believe they are appropriate or not. We have a very sound group of three individuals who make the assessments against the criteria and give them to the minister. I think that is as robust a process as I have seen anywhere in any appointment process in terms of an authority. If you wanted X nominee on, you could have prepared an amendment. We do not have an amendment before the chair. Or you could have convinced the Liberal Party to put that. As I understand it, this has not been an issue of contention and has not been raised so far. I am not surprised because we consider the selection process analysis is robust.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I have to remind you that it is your legislation, not mine. In fact, I will be voting against the legislation and have done so so far. Seeing that the selection panel does not include a wheat grower and the board that it will select might not necessarily include a wheat grower either, can you please tell me what qualifications you see as being essential, or is it the case that no qualifications will be required? If qualifications are not required, are there going to be any criteria to ascertain experience, and are you going to table them so that we can have a transparent look at the selection criteria process by which the board members will be selected? That is a good enough start.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

And it is a good place to end. I have answered the question.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So we have determined that the selection panel has no people on it who are involved with the wheat industry and it is not necessary that any people on the board have any experience in the wheat industry. I suspect that they might in the short term, because it might be politically prudent. We have also determined that there are no criteria for experience or qualifications set out in the selection of this board. So, in the selection panel’s recommendations to you, how will you ascertain what is appropriate and what is not?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

We are back where we started. At the beginning of your questioning I drew your attention to clause 41. Your claim is not correct, Senator Joyce. I do not know whether you are forgetting the response I gave to the first question—that is, that it is in clause 41. Then I went through and gave you an outline of the process and the individuals involved. I also gave you the background of Dr Laker, to my knowledge. I think we have fully answered the question. I do not see this process as being any different from the appointments to most boards that I am familiar with in the Commonwealth government sector.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I refer you to clause 40, which says:

WEA consists of the following members:

(a)

a Chair;

(b)

at least 3, and not more than 5, other members.

Is it possible, Minister, that the five members and the chair could be people who all come from business, all come from law, all come from international marketing, whatever that may be, and that you could have a board that includes nobody from the wheat industry? It is quite simple. It is either yes or no.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

As the bill says, we will be seeking a balance of skill and knowledge. You can answer the question yourself. How likely do you consider it to be? I would contend that the meaning of ‘seeking a balance of skill and knowledge’ is very obvious, Senator Joyce.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So you are saying that, in your opinion, it is imperative that there be a person on the board who grows wheat. Madam Chair, I am looking for an answer.

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

There is no requirement for an answer, Senator Joyce. You may wish to move on to another question. I will ask the minister whether he seeks the call.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

No. I have answered.

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

Senator Joyce, another issue, perhaps.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Since it is now quite obvious that the selection panel, which we know for a fact has nobody on it who is involved in the growing of wheat, may select a board that does not necessarily have on it any person involved in the growing of wheat, and we know that the minister has no selection criteria with which to consider people’s experience in the growing of wheat, do you think that there is the capacity for the board to make the wrong decisions?

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

There is no response. Senator Joyce, I draw to your attention the standing order.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

That is fine. ‘No response’ is the answer I heard.

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

If Senator Joyce has finished with that issue, I have another issue to move on to. I want to check something to do with access. There has been quite a bit of discussion about access to ports and up-country facilities. During the minister’s second reading speech he said:

… if any problems are identified—

with access to up-country facilities—

then the government will take steps to remedy the situation including ... the development of a code of conduct.

Is that promise limited to the formal review process, or, if problems are identified, will that issue be dealt with on a more timely basis?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

It is the latter. It will be on a timely basis. It is not limited.

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

Thank you. That reassures me somewhat. I am just wondering, then, what process you will use to work out whether there are in fact problems coming to light before the review process. What process will be undertaken to identify those problems?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The minister himself or herself who holds the position at the time—I am assuming Minister Burke will be there for some time—

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

Well, for 2½ years.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Then it may be Senator Scullion. Who knows? If anyone has a complaint or a concern, we believe it will be dealt with promptly under the processes.

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

I would like to ask a few short questions for some information, if that is okay. Well, I am going to ask them anyway.

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

Go ahead, Senator Siewert.

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

The government announced that they will provide up to $2.52 million for the ABS to collect the necessary information on wheat stocks and for ABARE to prepare a monthly report which will be available to industry. Obviously, it is essential that this scheme works. When will this information system be starting?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The target date is December this year.

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

Thank you for that. What process are you going to put in place to ensure that the system that you are putting in place is in fact adequate and is working?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The ABS and ABARE are consulting with the industry to determine the best way to gather the survey data. I do not see this as an unusual process. I am aware of the ABS’s involvement in other information/statistical gathering. I have to say they are a very robust organisation. So it is December. They are a reliable organisation in terms of their developmental times. We are confident that the requirements of growers for survey data collection will be met.

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

It is not the case that I am casting aspersions on ABS and their inability to provide the data. It is more a question of whether the way the data is provided is adequate to meet growers’ needs or the market’s needs. Is that system actually working? Although I am probably well known for my criticism of ABARE, it is not the case that I am doubting their ability to provide the information.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

No, I did not take it that you were in any way being critical of ABS. I note your criticism of ABARE. I do not agree, but I understand why, because I have seen you questioning ABARE at estimates. I cannot give you the final survey forms or criteria for collection or the way in which the data will be presented. I cannot give you that tonight. I would be confident with respect to the ABS and the work that it will do with the growers. ABARE will be involved. But ABS has always done a first-class job with statistical data gathering and presentation. Beyond that commitment I cannot give you any further information on it tonight.

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

What I am seeking here is an understanding from government on whether there will be an ongoing process—the same way I was seeking it for access—to ensure that the information provision is meeting needs, again before the review process. This was identified during the inquiry as a critical element and a critical need. So I am seeking the clarification that the government is not just going to set this in place and then not worry about it until the review process is undertaken.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The $2.5 million is for this work over three years. Having some understanding of the way in which ABS collect data, and the way they have done it in other areas, I would have great confidence in their ability to collect the correct data and to design the form in which the material collection is presented—some of it may be electronic—because this would be a new data series, presumably. And then they may change the way that it is collected. That is part of their normal process for any data collection. I cannot give you any detail beyond that. Perhaps I could give you more information. We could approach the ABS to give us a report about where they are up to at this point in time, how they believe the data will be collected and the form it will be presented in. It is probably a bit early. We are halfway through the year, and it is due for completion in December. The consultations with the wheat industry are not concluded. But we have confidence in the ABS to do the work. If we get some further update about how it will be done and the form it will be presented in before December then I will be very happy to provide that.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

On the appointment of WEA members: it might be here somewhere, but do they need to be Australian citizens?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am happy to take that on notice and come back to you.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Having perused the legislation I can inform the minister that they do not.

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

There has been a request to divide the question. I propose to put the question that the amendments be agreed to on the basis of those that the government have indicated they will support. Is the chamber happy with this course of action?

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I do not intend to call a division but I want it noted that I would not be supporting amendment (1). If it is just noted on the record, I do not mind, but I am noting now that I see amendment (1) as intrinsically different to the following amendments. Amendment (1) goes to the whole substance of the bill. I feel the bill is not responsive to nor does it advance the interests of wheat growers, and we have proved tonight that it is technically inadequate. It certainly does not reflect the overall sentiment of wheat growers. So I would not be supporting amendment (1). With the following amendments, though I feel they are not so much non-controversial as inconsequential, I will support them as a mechanism to ventilate this issue further.

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

I put the question that amendments (1), (7), (8) and (9) on sheet 5488 moved by Senator Minchin on behalf of the Liberal Party be agreed to.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I ask that amendment (1) be addressed separately.

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

We will do that. The first question then will be that amendment (1) moved by Senator Minchin on behalf of the Liberal Party be agreed to.

Question agreed to.

We now move to amendments (7), (8) and (9).

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

May I note that I and others, whose sentiments I think I reflect, are against that amendment.

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

Thank you, Senator Joyce. That is noted. The second question is that amendments (7), (8) and (9) on sheet 5488, moved by Senator Minchin on behalf of the Liberal Party, be agreed to.

Question agreed to.

The Temporary Chairman:

The next question is that amendments (2), (3), (4), (5) and (6) on sheet 5488, as moved by Senator Minchin on behalf of the Liberal Party, be agreed to.

Question agreed to.

Bill, as amended, agreed to.

WHEAT EXPORT MARKETING (REPEAL AND CONSEQUENTIAL AMENDMENTS) BILL 2008

Bill—by leave—taken as a whole.

Bill agreed to.

Wheat Export Marketing Bill 2008 reported with amendments and Wheat Export Marketing (Repeal and Consequential Amendments) Bill 2008 reported without amendment; report adopted.