Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary for Social Inclusion and the Voluntary Sector) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the Foreign Acquisitions and Takeovers Amendment Bill 2009 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

ACIS Administration Amendment (Application) Bill 2009

The ACIS Administration Amendment (Application) Bill 2009 confirms that the commencement date for the ACIS Administration Amendment Act 2009 is 1 January 2010.

The Government’s ‘New Car Plan for a Greener Future’ committed to providing the motor vehicle producers with a smooth transition to the new Automotive Transformation Scheme by providing increased assistance under ACIS in 2010. It was also the Government’s decision that this additional assistance be conditional on the enactment of the Automotive Transformation Scheme Act 2009, which occurred on 29 September 2009.

The amendment corrects the unintended consequence arising from the link between the ACIS Administration Amendment Act 2009 and the commencement of the Automotive Transformation Scheme Act 2009.

This Bill clarifies that the commencement date for the ACIS Act is 1 January 2010.

The amendments to the ACIS Administration Amendment Act 2009 also include an application provision to make it explicit that additional assistance to be provided to the motor vehicle producers is limited to their production of motor vehicles, engines and engine components from 1 January 2010. It removes any uncertainty that the new provisions could be applied to production of motor vehicles, engines and engine components undertaken in the final three months of 2009 for which duty credits will be issued in the first three months of 2010.

Coal Mining Industry (Long Service Leave Funding) Amendment Bill 2009

This Bill will amend the Coal Mining Industry (Long Service Leave Funding) Act 1992 (the Funding Act) to ensure the continued operation of existing unique long service leave arrangements in the black coal mining industry. The amendments will clarify that the existing long service leave entitlements preserved by the Fair Work Act 2009 will be covered by the Funding Act. The Bill will also introduce definitions of ‘black coal mining industry’, ‘employee’ and ‘employer’ and amend the definition of ‘eligible employee’ in the Funding Act to ensure that the scheme applies universally in the black coal mining industry.

Long service leave entitlements in the black coal mining industry currently flow from industrial instruments (awards and workplace agreements) and from contracts of employment. They are based on an employee’s service in the industry, rather than service with a particular employer.

Employees in the black coal mining industry have accessed portable long service leave entitlements under the terms of federal awards since 1949 which in turn were funded by an excise on coal production. Since 1993, under the Funding Act and related legislation, the funding of entitlements has been through an employer levy scheme. The Funding Act also established the Coal Mining (Long Service Leave Funding) Corporation, which administers the scheme. The Funding Act provides for the reimbursement of employers where they have made a payment to an eligible employee in respect of the employee’s entitlement to long service leave.

From 1 January 2010, the present industry awards prescribing long service leave will be superseded by modern awards under the Fair Work Act 2009 which are not permitted to include long service leave entitlements. While long service leave entitlements will be preserved through the operation of the National Employment Standards under section 113 of the Fair Work Act after 1 January 2010 they will no longer be award-based. As a consequence, from 1 January 2010, employers in the black coal mining industry will not be entitled to reimbursement under the Funding Act in respect of long service payments they make to employees in respect of the preserved entitlements.

These amendments will address this by ensuring the Funding Act applies to the preserved entitlements in the Fair Work Act 2009. The amendments also ensure all eligible employees will be entitled to the longstanding existing standard of long service leave for the black coal mining industry as of 1 January 2010. The government has had representations from both industry and unions for these amendments to be made.

The bill will include definitions of the ‘black coal mining industry’, ‘employee’ and ‘employer’ and amend the existing definition of ‘eligible employee’, to align with the Modern Award. Industry stakeholders have suggested to the government that these definitions will provide greater certainty as to the scope and application of the existing scheme. Those definitions will also apply to related legislation, that is, the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992.

The government considers that these proposals by industry participants are sensible and is happy to facilitate them by making these minor amendments.

The effect of this Bill is to preserve existing arrangements for employees in the black coal mining industry with respect to long service leave and also ensuring the reimbursement of employers from the fund in respect to long service leave payments they make to eligible employees.

The government considers that this is a desirable measure that recognises the unique historical circumstances surrounding long service leave in the black coal mining industry.

I commend this bill.

Foreign Acquisitions and Takeovers Amendment Bill 2009

Today I introduce legislation to improve the integrity of Australia’s foreign investment screening regime.

The Foreign Acquisitions and Takeovers Amendment Bill 2009 clarifies the operation of the Foreign Acquisitions and Takeovers Act to ensure that the Government has the capacity to examine all substantial investment proposals that could potentially raise national interest concerns.

The Government welcomes and encourages foreign direct investment because of the benefits that it provides the Australian economy.

Foreign investment creates new job opportunities for Australians, encourages innovation and skills development, introduces new technologies and promotes competition amongst our industries.

Foreign investment has helped build the competitiveness of our economy and will continue to do so into the future.

The Foreign Acquisitions and Takeovers Act 1975 seeks to get the balance right between encouraging investment into Australia and ensuring that the Government can review significant foreign investment proposals and intervene where these could undermine the national interest.

The Act requires foreign investors to notify the Government of their transactions in certain circumstances and empowers the Treasurer of the day to block, or place conditions upon, those proposals that could be contrary to the national interest.

The Act focuses on situations where a foreign investor obtains substantial influence or ‘control’. Overall, the current provisions in the Act that deal with control have worked well, and its approach remains sound.

However, since the Act was drafted in the 1970’s, more complex investment instruments have evolved.

The use of innovative financing arrangements has been a growing feature of investment activity over recent years. These arrangements have highlighted that ownership interest and control can be held in a variety of forms other than through traditional shares and voting power.

While these types of investment arrangements have a solid commercial basis, they have raised questions around the Act’s full application.

It was for this reason that the Government announced earlier this year that we would amend the Act, to safeguard its policy intention.

The Bill clarifies that under the Act, foreign investors must notify the Government where the investment arrangement could deliver influence or control over an Australian company valued above the relevant monetary threshold.

And the Act will apply equally to all investments, irrespective of how they are structured.

The amendments specifically include transactions involving instruments that eventually convert into shares.

This will be achieved by first, expanding the definition of ‘voting power’ so that it covers the number of votes that could be cast if it is assumed that a future right is exercised.

And second, by clarifying where the Act deals with interests in shares. The Act currently provides that a person is deemed to hold an interest in a share if they have a right to acquire a share or to have a share transferred to them.

The Bill clarifies that a right can include a right under an instrument, agreement or arrangement, whether the right is exercisable presently or in the future and whether on the fulfilment of a condition or not.

The amendments are designed to capture all significant foreign investments that have the potential to provide substantial influence or control over an Australian company.

These amendments are not the result of any one investment proposal. They ensure the Foreign Investment framework keeps pace with the changing nature of foreign investment proposals and with trends that were evident some time before this Government was elected.

The amendments in this Bill apply from 12 February 2009—the date that I announced the changes – to provide certainty around the Act’s application.

To ensure that investors are not unfairly affected by the retrospective start date, the Bill includes transitional provisions that apply in relation to business proposals and transactions that occurred between 12 February and the date of Royal Assent.

The transitional provisions provide flexibility for foreign investors to notify of any relevant transactions that became subject to the amended Act in the transition period within 30 days after commencement.

Subject to the need for post-commencement notification, these investors will not be subject to the normal criminal penalties in respect of those transactions entered into during the transition period.

I consider that these changes improve the integrity of the Act and capture arrangements that may be deliberately structured to avoid foreign investment screening.

These changes are consistent with Australia’s international obligations under our free trade agreements.

The full detail of these amendments is contained in the explanatory memorandum.

This Bill does not change the robust national interest framework that underpins our foreign investment policy, nor the screening and examination arrangements of the Foreign Investment Review Board.

These procedures are well established and familiar to foreign investors.

The examination procedures and the decision to block or impose conditions on foreign investment proposals will continue to be based on whether an investment has, or will, alter the control of an Australian business or corporation and whether the investment is contrary to the national interest.

I am confident that this Bill strengthens and modernises Australia’s foreign investment framework.

As we build stronger foundations for Australian prosperity beyond the global recession, the Government is committed to a regulatory regime that gets the balance right – protecting the national interest, while ensuring that Australia is a more competitive destination for foreign investment.

Debate (on motion by Senator Stephens) adjourned.

I move:

That the resumption of the debate be an order of the day for a later hour.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I would like to speak on this motion. In so doing, I preface my remarks by indicating that the arrangement of the program is such that we are now going to have to return to this chamber next week. Mr Acting Deputy President Bernardi, you will know that the travel allowance given to senators and members relates to the registered sitting days. Next week it will be a question of whether senators—and I assume members—can afford to bring staff down under their existing travel budget. So, in considering this motion, it is a question of whether, when we next sit and the orders of the day are being presented, we will have the benefit of having staff here.

I appreciate that ministers and party leaders like Senator Brown, who tried to stop me from asking this question, are in a different situation. Obviously Senator Brown, as a leader, gets a lot more pay and allowances than the rest of us. That is obviously why he wanted to prevent me from asking this question. In a most unprecedented way leave was refused. I indicate to the Greens that if they ask for leave for anything for the rest of this year—

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

You have just denied us leave!

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I didn’t deny you anything. It happened to be the Labor Party.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Order!

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Mr Acting Deputy President, I raise a point of order. I do not think that accusations across the chamber are appropriate for any member of this chamber, particularly people who should know better and are mature enough to speak to people properly and like human beings. I think the senator should reflect on his comments.

The Acting Deputy President:

There is no point of order, but I will make the point that interjecting is disorderly and responding to interjections does not assist the conduct of the Senate. Senator Macdonald.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. I will ignore that interjection from someone whose judgment one would call into question here. I repeat that the Leader of the Greens deliberately prevented me from asking this question, no doubt because he has extra pay, extra allowances and extra staff, so it did not really worry him. In an unprecedented way he has refused to let me ask the question at the appropriate time. But I think it is relevant to do so on this motion before the chair. It just shows how much the Leader of the Greens lives in relation to his former political associations: freedom and democracy are not important.

Getting back to the issue, ministers have staff here next week, so it does not really matter to them, but we senators have a travel budget for bringing staff here based on the number of days in the schedule, and we are going to be in a very difficult situation next week. I ask the Special Minister of State, in considering this motion, and perhaps the Parliamentary Secretary for Social Inclusion and for the Voluntary Sector, in responding, to indicate that additional allowances will be made to senators and members to allow them to bring staff to Canberra next week to assist us in the debate on a very important topic before the chamber. I appreciate that the parliamentary secretary may not have the information, but I cannot imagine that the government would object to that. Every minister has a huge team of staff here in Canberra to assist them. Other members in the chamber—apart from the Greens leader, who clearly has a lot of staff and a lot of allowances—do need the assistance of staff, and we find ourselves budget constrained unless the government will extend the travel allowance to allow us to bring staff to Canberra. I would ask that Senator Ludwig seriously consider that and perhaps respond sometime during the day.

Question agreed to.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.