Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

It gives me great pleasure today to talk about the National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011.

An honourable senator: It is one of your pet subjects!

That is right. I have been keeping a very close eye on this matter and I am very pleased to be making some presentations today. This bill outlines changes to the National Consumer Credit Protection Act 2009, which introduces, first, a requirement for lenders to provide a key fact sheet for standard home loans. Second, it introduces reforms to lending terms for credit cards, which was the government's election policy announcement, by, firstly, prescribing rules for approval of the use of credit cards above the credit limit; secondly, specifying an allocation hierarchy for payments made under credit card contracts; thirdly, restricting credit providers from making unsolicited invitations to borrowers to increase the credit limit of their credit cards; and, finally, introducing a requirement for lenders to provide a key fact sheet for credit card contracts. The coalition will not oppose this bill; however, we do have concerns over some of the elements contained within it.

By way of background, I think it is important to advise the chamber that, as part of the 2010 election campaign, the Labor government introduced a Fairer, Simpler Banking policy which, among other things, aimed to more closely regulate the issuance, limits, fees and charges, and product disclosure of credit cards in order to enhance the protection of consumers. This was then followed by Treasurer Swan's announcement in December of last year of the government's Competitive and Sustainable Banking system, which included a key fact sheet for new home loan customers. This was in response to the coalition's nine-point banking plan. The National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011 deals with both of these policy announcements.

There are a number of issues associated with this matter, Mr Deputy President—and I congratulate you on your appointment today to that very high position. This bill is an unsatisfactory response to perceived issues within the banking industry. While some elements within the bill such as changes to the hierarchy of payments under credit cards contracts are worthy of consideration, the other sections relating to credit card reform seem to be poorly drafted. Industry concerns seem not to have been fully addressed. At the eleventh hour, the government decided to listen to industry and put forward some substantial amendments to this bill in the House of Representatives. These amend­ments are embarrassing for the government as they had previously refused to listen to industry concerns—a matter I would have thought of extraordinary embarrassment to this government given their behaviour in relation to this matter.

The bill sets out the following changes. First is a key fact sheet for standard home loans. This measure was initially set to apply from 1 September 2011. Following con­sultation with industry, the deadline has now been extended by the government—I have to say it was at the eleventh hour through amendments—to 1 January 2012. The contents of the key fact sheet will be prescribed by regulations which are yet to be released by the minister. We expect them soon—unless they have already been prescribed, which I do not think they have; I am sure the parliamentary secretary would have told me so. It is another delay, and these regulations are yet to be prescribed. The government has also chosen to remove in their amendments the strict liability which applied to this section—a concern which was consistently raised by industry and institutions.

I will now turn to reforms to lending in terms of credit cards. Firstly, in relation to prescribing rules for the use of credit cards above the credit limit, the government has chosen to remove the sections relating to the default buffer limit at 10 per cent of the credit limit, as well as the allowance for a supplementary buffer. These reforms were to prevent consumers from exceeding an agreed-upon limit. However, industry bodies and institutions expressed concern that the bill could send a message to consumers that they may in effect have a 10 per cent higher credit card limit if they choose. The government has now removed this section through its eleventh-hour amendments and replaced it with a requirement for consumers to be notified if a credit card is used in excess of its credit limit and an express requirement for no fees to be imposed and no higher rate of interest to be charged if a customer exceeds their credit limit, unless they have provided explicit consent for a fee to be charged.

The second reform specifies an allocation hierarchy for payments made under a credit card contract. This section of the bill requires credit providers to apply relevant repayments first to the part of the consumer's balance that attracts the highest credit rate, and this seems to be a reasonable reform. The third restricts credit providers from making unsolicited invitations to borrowers to increase the credit limit of their credit card. Some institutions have stated that a potential unintended consequence would be to force credit providers to push borrowers towards higher initial credit limits than otherwise would have been offered. The fourth intro­duces a requirement for lenders to provide a key fact sheet for credit card contracts. Concerns about this section of the bill are similar to those for the key fact sheet for standard home loans.

I would now like to turn to Greens amendments rejected in the House of Representatives—and that, of course, is the Greens political party, who are in a political alliance with the Australian Labor Party that we are all acutely aware of. We have seen the outcomes of that in the last 36 hours and undoubtedly we will see a lot more of that relationship between the Australian Greens and the Australian Labor Party as they head, in coalition, to thoroughly and completely destroy this country. Mr Adam Bandt MP, the member for Melbourne, moved amend­ments seeking to have divisions 5 and 6 apply to transactions and payments made under a credit card contract entered into before or on the date of the legislation coming into effect. Division 5 relates to the use of a credit card in excess of the credit limit and division 6 relates to the order of application of payments made under credit card contracts, which is a reasonable reform. The coalition opposed this amendment in the House of Representatives. The amendment was retrospective on existing contracts entered into prior to the legislation coming into effect.

In summary, the coalition will not oppose this bill. The amendments moved in the House of Representatives are embarrassing for the government and highlight the deficiencies in their approach to this policy matter. It is not just with this that we have seen this sort of lack of detail and lack of understanding about what is required to properly govern this country. We have seen time and time again this government dragged kicking and screaming into having some sensible policy responses to key issues. Why is it that they are so inept that they require others to do their work for them? I look at the work that Senator Cormann has done in relation to this. I look at the work the shadow Treasurer has done in relation to this. Again the coalition is required to fix the govern­ment's messes—time after time after time. Industry and institutions have warned on a number of occasions throughout the legislative process that some of the elements contained in this legislation would have unintended consequences—a fact that the government have chosen to take on board at the eleventh hour. The unintended conse­quences were not news to them; they had been told about them and they chose to do nothing about it until the eleventh hour, when again the coalition addressed their deficiencies and told them how to best rectify the matter.

The coalition believes that the govern­ment's approach of imposing additional regulation and interfering in commercial decisions of banks is not the preferred approach when addressing market deficiencies. The coalition stands by its call for a root-and-branch review into Australia's financial system as part of the nine-point banking plan announced in October last year. Of course, that nine-point banking plan was the coalition again proactively putting forward some policy proposals to address issues. Again there was a requirement for the coalition to do the policy work for an inept government. Again the coalition was required to go out and say to industry and others: 'We've got some solutions. We will work with you to make better legislation'—and that has been the outcome today. So I congratulate Senator Cormann and the shadow Treasurer for again being in a position to get bad laws made better. We will not be opposing this bill, but I hope the government finally starts to learn some lessons about its completely inept handling of legislation and of the economy.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate my support for the second reading of the National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011, but I foreshadow that I will have a number of amendments that I will ask the Senate to consider seriously. This bill follows the Treasurer's announce­ment in December last year that the govern­ment wanted to 'promote a competitive and sustainable banking system to give every Australian a fair go'. Under this bill, yes, some good measures are being introduced. Consumers will be provided with fact sheets prior to entering a home loan or a credit card contract. Lenders will not be able to offer unsolicited invitations to borrowers to increase credit limits they may not be able to afford. This is something that as a member of the South Australian parliament I cam­paigned for and it is an important issue in terms of basic consumer rights in the face of that sort of aggressive behaviour by some lending institutions. Also, over-limit fees will be prohibited, and credit card payments will pay off higher interest debts first, which I think is a good and innovative solution. These are good measures.

But if the government is serious about ensuring a competitive and sustainable banking system then it needs to seriously reconsider its blanket ban on exit fees. I acknowledge that this chamber recently debated a motion—moved by my colleague Senator Cormann, for the opposition, and by me—to disallow the government's regu­lations which came into force on Friday, 1 July. However, I wish to highlight again my concerns about the impact this blanket ban will have on small lenders and the con­sequence for competition in the banking sector.

At the outset, I make it clear that I do not support the excessive exit fees that have been imposed by lenders to date. While the government might have the right intention, a blanket ban on exit fees is not the solution. Banning exit fees across the board was the government's knee-jerk reaction late last year to public demand for greater competition in the banking sector. The only way to ensure competition in the banking sector, however, is to support the smaller players. All the govern­ment's ban on exit fees will do is reduce competition in the longer term because smaller players will be severely impacted as a result and there will simply be cost-shifting in where the fees are being charged.

The simple fact is that small lenders need to be able to cover their costs of lending, which the big banks are able to offset in other areas of their business. The big banks also have much greater flexibility in their ability to raise finance. Smaller lenders are forced to pay third parties to complete the administrative necessities of a home loan such as valuations, legal fees et cetera. These costs usually total between $1,000 and $2,000, so fees are applied to cover these costs should borrowers leave their mortgages in the first few years. Unlike the big four banks, small lenders are not able to offset these costs in other ways. By banning exit fees, small lenders will have to either bear the costs themselves or lift their rates, making them uncompetitive against the big banks that can absorb these costs elsewhere.

While the government's ban may have been intended to improve competition, it will actually have the consequence of reducing competition by severely impacting on the non-bank lending sector and, as a consequence, interest margins on mortgages will rise over time. To address this, I foreshadow I will be moving amendments in the committee stage of this bill so that the ban on exit fees will only apply to lenders and their subsidiaries who hold a particular market share or greater to ensure that smaller players are able to, within reason, apply fees to their own customers.

There will be an overarching consumer protection provision, which this bill has not addressed, because the amendments I will be moving will have a reasonableness test. There must be some materiality for all fees and charges relating to the provision of credit. For instance, that reasonableness test would also apply to credit card fees.

I welcome the measures in this bill, but I think the government needs to seriously think about its blanket ban on exit fees if it truly wants to promote a competitive and sustainable banking system to give every Australian a fair go. My concern is that the government's changes will have the effect of further reducing the competitive pressures within the banking industry. It will further, since the GFC, consolidate the power in the big four banks.

There is something fundamentally missing here and that is the issue of unfair contract terms. At the moment, ASIC needs to give some guidance in unfair fees. I think the current test is simply too vague. The amendments I will be moving will ensure there must be a link, a reasonableness test, a materiality test, between what is being charged by any lending institution in the provision of credit with respect to any penalty fees and the like. I think it is important that there is substantial consumer protection reform. Simply giving consumers information is not enough. You need to give consumers protection so that what they are being charged is reasonable and so that the fees being charged are materially linked to the cost of providing that service. This bill does not do this and that is why I will be moving amendments during the committee stage to improve this bill.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Firstly, congratulations, Mr Deputy President, on your election. The National Consumer Credit Protection Amend­ment (Home Loans and Credit Cards) Bill 2011 delivers on the government's election commitment to crack down on the unfair treatment of Australians with credit cards and to help them obtain a better deal with their credit card and home loans. I thank senators for their contributions and commend the bill to the Senate.

Question agreed to.

Bill read a second time.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I seek leave to split amendment (2).

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

For clarity, it is your intention to move the first part of amendment (2) on sheet 7110, which relates to the Banking Act, and then move the second part of amendment (2), which relates to the National Consumer Credit Protection Act 2009, and deal with them as separate amendments.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

That is the best way of dealing with it, I believe. I am sorry it was not split up previously, but they are distinct concepts and so it is appropriate to split them.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Is leave granted for Senator Xenophon to deal with this as two separate amendments?

Leave granted.

We will deal with the first one first. We will call it No. 2 on sheet 7110.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

For the sake of completeness, I should move amendment (1), which is a consequential amendment that relates to the commencement of part 3 of the act and states that it commences 'The day after this Act receives Royal Assent'. I should move that along with—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Xenophon, if I could just interject there, we will deal with that afterwards as that is consequential. We will deal with the two amendments that we have just highlighted, if you are comfortable to deal with it that way.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I do not think that it is possible for you to interject from your position.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

It's disorderly!

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Can I offer a direction in that regard.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I was not suggesting that what you were doing was disorderly, Mr Chairman. I am suggesting that you are giving me a direction rather than an interjection.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

And, if you accept that direction, we will go ahead and deal with amendment (2).

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I wholeheartedly accept that direction and I move amendment (2) on sheet 7110:

(2)   Schedule 1, page 25 (after line 20), at the end of the Schedule, add:

Part 3—Amendments relating to termination fees and credit fees and charges

Banking Act 1959

1 At the end subsection 9(4)

Add "or the requirements of section 9AF".

2 After section 9

Insert:

9AF Variation of conditions of certain authorities

(1)   APRA must, within 30 days of the commencement of this section, vary the con­ditions of relevant existing section 9 authorities to give effect to this section and any new section 9 authority granted after that commencement to which this section applies must include conditions that give effect to this section.

(2)   The section 9 authority for a bank which has a market share of more than 10% must prohibit the bank from imposing an early termination fee in respect of any loan agreement or mortgage contract entered into by the bank after the commencement of this section.

(3)   If a bank which has a market share of more than 10% has an interest of 51% or more in a subsidiary which is an ADI, the section 9 authority for that ADI must prohibit the ADI from imposing an early termination fee in respect of any loan agreement or mortgage contract entered into by the ADI after the commencement of this section.

(4)   In this section:

bank means an Australian ADI that is permitted under section 66 of the Banking Act 1959 to assume or use:

  (a)   the word bank, banker or banking; or

  (b)   any other word (whether or not in English) that is of like import to a word referred to in paragraph (a).

early termination fee means any additional charge imposed on a borrower or mortgagor in any situation in which the borrower or mortgagor chooses to pay out the loan agreement or mortgage contract, as the case may be, ahead of the time specified in the relevant loan or mortgage contract.

market share means market share determined by APRA on the basis of proportion of total deposits.

National Consumer Credit Protection Act 2009

3 Before section 31 of the National Credit Code (in Division 4 of Part 2)

Insert:

30C Credit fees or charges relating to credit contracts

(1)   A credit fee or charge payable by a debtor to a credit provider must be reasonable.

(2)   ASIC may, if satisfied on the application of a debtor or guarantor that a credit fee or charge is not reasonable, apply to the court for an order annulling or reducing the credit fee or charge and for any other ancillary or consequential orders.

(3)   In determining whether a credit fee or charge is not reasonable, ASIC must have regard to whether the amount of the credit fee or charge materially exceeds:

  (a)   the credit provider's reasonable costs of undertaking the activity or service to which the credit fee or charge relates; or

  (b)    the credit provider's average reasonable costs of undertaking the activity or service to which the credit fee or charge relates in respect of that class of contract.

(4)   In considering an application by ASIC under subsection (2), the court must have regard to whether the amount of the credit fee or charge the subject of the application materially exceeds:

  (a)   the credit provider's reasonable costs of undertaking the activity or service to which the credit fee or charge relates; or

  (b)    the credit provider's average reasonable costs of undertaking the activity or service to which the credit fee or charge relates in respect of that class of contract.

[termination fees and credit fees and charges]

This first amendment prohibits banks of greater than a particular market share percentage from imposing an early termination fee in respect of any loan agreement or mortgage contract. It also includes a reasonableness test—or that is what it relates to.

According to APRA, based on total deposits the big four banks hold 75 per cent of the market. Westpac has 20.5 per cent market share, the NAB 16 per cent, ANZ 15.9 per cent, and the Commonwealth Bank 22.5 per cent. There is no question that there is a real concern about the lack of com­petition in Australia's banking sector because of the dominance of the big four. It is vital therefore that small lenders are given as much support and assistance as possible to ensure that they are able to continue to offer consumers alternative banking choices, and I believe that an unintended consequence of the government's blanket ban on exit fees is that small lenders will be pushed out of the market.

Unlike the big four, who can offset costs and who have much greater capacity for borrowings, the small lenders need to be able to charge basic fees to keep them in the market. The fact is that small lenders pay third parties to complete the administrative necessities of a home loan such as valuations and legal fees, and small lenders cannot offset losses like the major banks and there may well just be a case of cost-shifting.

But what concerns me is that since the GFC, with the guarantee that the government has put in place—which of course was welcome and was the right thing to do—the nuances of that in terms of the imple­mentation of that were that it simply strengthened the power of the big four. They increased their market share in business banking and the home loan sector and I fear that, unless we provide some support for those small lenders, consumers will ultimately be worse off.

So effectively that is what this amendment relates to. This amendment applies the ban on exit fees only to big banks with more than 10 per cent of market share and their subsidiaries, which are defined as being owned 51 per cent or more. That is the gist of this amendment and I urge my colleagues to support that. I am not sure what the coalition's view would be, but it would be not inconsistent with the measure that I co-sponsored with my colleague Senator Cormann on behalf of the opposition that sought a blanket ban on exit fees. It is not in the same form—I acknowledge that—but it is true to the general intent there about the impact that it would have on small lenders.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I indicate that my remarks apply to the other amendments, Senator Xenophon, so I do not want to unduly take the time of the chamber and be repetitive. The government will not be supporting the amend­ments. We do understand your inten­tion, Senator, in moving the amendment and your commitment to a better deal for consumers. You have been very consistent in that approach over many years. However, the government cannot support the amendments, as they duplicate laws we have already created and would put their enforcement at risk. The government has already banned exit fees for all lenders, not just the big banks. Making any further regulation in this space is therefore unnecessary. It would create significant difficulties for our financial regulators in enforcing an exit fees ban on new home loans.

The government has already given ASIC the power to prosecute any fee in any credit contract that is unfair or unconscionable to consumers. These powers are contained in section 128F and 12CB of the ASIC Act. Duplicating these laws with inconsistent tests and definitions would put at risk ASIC's ability to prosecute under our existing laws, and that in turn would risk letting the banks off the hook and hurting consumers. Therefore we cannot support Senator Xenophon's motions to amend.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Just quickly and on behalf of my colleague Senator Cormann—and obviously I am acutely aware of the motion jointly sponsored by Senator Xenophon and my colleague, as Senator Xenophon quite rightly said—this is not in the same form and we will not be supporting the amendment, on the basis that it introduces a differential regulation based on market size.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

It's a cousin to it.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I fear a distant one, Senator. We are opposed to differential regulation as it creates market distortions and market-distorting regulations will eventually reduce the efficiency of markets and cost consumers more. Differences in fee structures based on market size will make comparison of products harder and will create confusion for consumers. The coalition favours a level playing field where consumers are able to select between products with certainty and clarity.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am disappointed but not surprised. I can indicate that I have introduced a bill which I hope will be dealt with by committee, particularly in relation to the next amendment, and I hope that there will be a modification of the position of my collea­gues on both sides at some stage in the future. I indicate that Senator Ronaldson of course is quite correct: it is not identical but it would have, I believe, a similar effect in relation to the market distortion that has occurred as a result of the blanket ban on exit fees. If the ban were applied only to the big four, that is something that they could easily absorb, but the disproportionate impact on the smaller players in the market is one that is of concern. We have seen the contractions since the GFC, in part because of the way that the guarantee was structured. That was something that was raised in the banking inquiry of the Senate Economics References Committee, very ably chaired by Senator Bushby, and I supported the coalition in their concerns about that blanket ban on exit fees.

This is a slight modification, but I think it will have the same effect in terms of those small operators in the marketplace. I under­stand that this amendment will go down. I will not be seeking to divide on it. I think we need to carefully monitor the effect of the blanket ban on exit fees, including whether consumers get slugged with other fees—so in the end consumers are not any better off; they are simply affected some other way. That is something that I believe my next amendment will substantially remedy.

Question negatived.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

We will now move to the part of amendment (2) on sheet 7110 that relates to the National Consumer Credit Protection Act 2009.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move:

(2)   Schedule 1, page 25 (after line 20), at the end of the Schedule, add:

National Consumer Credit Protection Act 2009

3 Before section 31 of the National Credit Code (in Division 4 of Part 2)

Insert:

30C Credit fees or charges relating to credit contracts

(1)   A credit fee or charge payable by a debtor to a credit provider must be reasonable.

(2)   ASIC may, if satisfied on the application of a debtor or guarantor that a credit fee or charge is not reasonable, apply to the court for an order annulling or reducing the credit fee or charge and for any other ancillary or consequential orders.

(3)   In determining whether a credit fee or charge is not reasonable, ASIC must have regard to whether the amount of the credit fee or charge materially exceeds:

  (a)   the credit provider's reasonable costs of undertaking the activity or service to which the credit fee or charge relates; or

  (b)    the credit provider's average reasonable costs of undertaking the activity or service to which the credit fee or charge relates in respect of that class of contract.

(4)   In considering an application by ASIC under subsection (2), the court must have regard to whether the amount of the credit fee or charge the subject of the application materially exceeds:

  (a)   the credit provider's reasonable costs of undertaking the activity or service to which the credit fee or charge relates; or

  (b)    the credit provider's average reasonable costs of undertaking the activity or service to which the credit fee or charge relates in respect of that class of contract.

This amendment is also the subject of a private senator's bill that I introduced in the last sitting week. I hope it will be subject to an inquiry. I urge my colleagues to support this because it is quite straightforward in what it is intending to do. I am grateful for the advice I have received on this from Associate Professor Zumbo, from the University of New South Wales School of Business. He has been a long-time champion for small businesses and for the rights of consumers.

This provision seeks to modify the current Consumer Protection Code and is entirely consistent with what this legislation is trying to achieve—that is, to empower consumers, to give them more information and to level the playing field for consumers. The current rules state that ASIC has the power to strike down any unconscionable terms in relation to early termination fees for residential loans, unconscionable fees and unfair contract terms. This provision seeks to introduce a reasonableness test into the National Consumer Credit Protection Act 2009 for any credit fee charge payable by a debtor to a credit provider.

I know there have been concerns about the level of bank fees, not just exit fees, that are charged. This amendment states that any fee or charge that relates to the provision of credit, whether it is a personal loan, a mortgage or a credit card, must be reason­able as compared to the cost of undertaking the activity by the credit provider. That means that smaller lenders may have a different fee structure. They might be charging more for termination fees or penalty fees than a bigger institution. Having a reasonableness test—so there is some material link between what is being charged and what it is actually costing that institu­tion—is entirely consistent with the National Consumer Credit Protection Act in its current form. It is about giving some certainty. It is about having a specific test that targets the whole issue of unreasonable fees.

The whole issue is one of materiality. ASIC's Regulatory guide 220issued in November 2010 is welcomed but it does not give the clarity that I believe is required. You need to have a link between the materiality of charges that a lending institution is hitting a consumer with and the issue of reasonableness. To say that you must apply the test to consider the issue of materiality I think would make a big difference. This amendment states:

In determining whether a credit fee or charge is not reasonable, ASIC must have regard to whether the amount of the credit fee or charge materially exceeds:

(a)   the credit provider's reasonable costs of undertaking the activity or service to which the credit fee or charge relates; or

(b)    the credit provider's average reasonable costs of undertaking the activity or service to which the credit fee or charge relates in respect of that class of contract.

Again, that is the question of reasonableness and materiality.

I understand that the government and the opposition do not support this, but I would like to hear them say whether there is enough specificity and clarity under the current ASIC guidelines. This is a reasonable amend­ment that will give clarity and cer­tainty to lending institutions and consumers and will prevent the sort of gouging we see with various credit fees.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

We will be opposing this amendment. The National Consumer Credit Protection Act 2009, which came into effect in July 2010, already deals with uncon­scionable or unfair fees and charges. Borrowers can already complain to ASIC or to an external dispute resolution scheme. The borrower or ASIC can seek a review of fees by a court. This proposal would require ASIC to determine what is a reasonable fee, which is beyond the current scope and role of the regulator. As each credit provider's average reasonable costs would be different, this would require extensive ASIC resources and high costs in each case. These higher costs would need to be passed on to consumers or funded by the taxpayer.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I referred earlier in my contribution that the government would not be supporting this regulation. The government has given ASIC the power to prosecute any fee in any credit contract that is unfair or unconscionable to consumers. That is contained in sections 12BF and 12CB of the ASIC Act. As I mentioned earlier, duplication and inconsistent test definitions are inappropriate. We will not be supporting the amendment.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Again, I am disappointed but not surprised. I am just trying to understand the coalition's point of view. Senator Ronaldson, I apologise if I misheard you but how would it cost taxpayers more if there were greater clarity in the test? How would it be a burden to simply have guidelines that say there must be some materiality between what has been charged and the cost, and to measure that as a yardstick of reasonableness in terms of interpreting the ASIC guidelines?

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I am sure that Senator Xenophon and my colleague Senator Cormann can have a longer discussion about this at some time in the future, but the point I was making is that the increased costs that might be imposed on ASIC would require extra resourcing from somewhere.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

For a man of Senator Ronaldson's calibre, I am surprised that this is the best he can come up with. I have a lot of respect for his powers of argument and putting up a cogent case—but honestly! He is saying do not add an extra layer of protection for consumers because ASIC will not have the resources to do so. In fact, this would make it easier. Let us put this argument to rest. Having a clearer test would mean less uncertainty. If you have clearer guidelines and a clearer test it would arguably lead to a lessening of the resources needed by ASIC to deal with what is currently very vague. I am not sure if that will convince Senator Ronaldson to change his view in relation to this. He seems unmoved, so I will not pursue it.

The minister says there is a regulatory guide. Since the guide came out in 2006 how many actions have there been, how many warnings have been sent out and how many prosecutions have there been in relation to breaches of unfair contract terms that we are supposed to interpret with this regulatory guide?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Firstly, I want to congratulate Senator Ronaldson for the fine speech he has just made. Senator Xenophon, I think you are a little harsh on him.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

Yes, I agree with you.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Senator Xenophon, I will have to take your question on notice. Unfortunately we do not have anyone from ASIC here. But there are plenty of opportunities to find out. ASIC attend estimates on three occasions during the year, and I am the representative minister at those hearings. They also attend two or three meetings of the Joint Committee on Corporations and Financial Services. So that is at least five times a year. I will take your question on notice and endeavour to get that information for you as soon as possible. I will personally follow it up and see what we can find out.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I did not mean to be harsh in relation to Senator Ronaldson. I actually have a great personal regard for him.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

You said that but then you whacked him!

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I just thought it was a weak argument! And Senator Ronaldson said that I have a weak argument. He is not shy in coming forward, and I respect that. But let us wait and see, I guess. I still believe this amendment has merit. It is about tying in a test to make it clearer as to what is reasonable or not. It does not seem unreasonable to have a material link between the actual costs of providing a service and what a consumer is charged. Some banks and credit institutions charge a fee that is completely disproportionate to the cost of providing that service, and that is what this amendment is intended to provide clarity on. The minister has indicated that he will provide an answer in due course in relation to the matters raised. I think ASIC has one hand tied behind its back by virtue of the vagueness involved in these current regulations. So I will maintain this amendment and, if there is another voice with me, I will be seeking a division.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Thank you, Senator Xenophon. I think Senator Ronaldson will survive the evening with that bruising! I call Senator Madigan.

John Madigan (Victoria, Democratic Labor Party) Share this | Link to this | Hansard source

I support Senator Xenophon's amendments to the bill as tabled.

Question put:

That the amendment (Senator Xenophon's) be agreed to.

The committee divided. [17:47]

(The Chairman—Senator Parry)

Question negatived.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

That now makes amendment (1) on sheet 7110 redundant.

Bill agreed to.

Bill reported without amendments; report adopted.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Link to this | Hansard source

Mr Deputy President, I also congratulate you on your election to that position today. It is well deserved and is a very popular appointment. I sincerely congratulate you and look forward to attending the chamber and arguing the toss under your judicious and judicial guidance.

The Military Justice (Interim Measures) Act was introduced as an interim measure to sustain the military justice system while Defence attempts to address the issue of the trial of serious service offences following the invalidation of the legislation establishing the Australian Military Court in the famous case of Lane v Morrison, which was handed down on, I think, 26 August 2009. The minister at the time, Senator Faulkner, said that the legislative mechanics of establishing a correctly constituted military court was of the highest priority. Unfortunately, like most high priorities for this government, we have neither seen nor heard of a successful piece of legislation arresting this problem since. Two years later, here we are and nothing has been achieved. Minister Smith, in his second reading speech on 10 May 2011, acknowledged that there would be new legislation but that it was still in the formulation stage.

The Military Justice (Interim Measures) Amendment Bill 2011 is very, very important. It is a stopgap measure to provide for the appointment and also the remuner­ation and other entitlements of statutory office holders—namely, the Chief Judge Advocate and two judge advocates, each of whom are full-time members of the Australian Defence Force. Schedule 3 of the act currently provides a fixed tenure for up to two years. Of course, the expiry of that term is the problem for the government. It expires in September this year and, accordingly, this bill is necessary to continue the remuneration and entitlements of those statutory office holders.

The Australian Military Court was established in 2007 by legislation supported by both sides of the parliament. The court's establishment followed a series of Senate committee reports over a number of years. I was involved in the 2005 Senate Standing Committee on Foreign Affairs, Defence and Trade military justice inquiry, which made a number of very important and serious recommendations touching on the issue of the administration of military justice inside Defence. As I said, on 26 August 2009, the High Court of Australia handed down its decision in the case of Lane v Morrison. The case challenged the constitutional validity of the then Australian Military Court. The High Court found unanimously that the provisions of the Defence Force Discipline Act 1982, establishing the Australian Military Court, were invalid because the Australian Military Court purported to exercise the judicial power of the Commonwealth without meeting the requirements set out in chapter 3 of our Constitution.

As I said, the defence minister at the time said that the mechanics of establishing a correctly constituted military court were a priority. Here we are, two years later, and we are still waiting. This legislation is necessary because of the wait—because of the dilatory performance of the government on this. All stakeholders are keen to see the permanent establishment of a properly constituted military court to administer justice inside Defence.

The opposition supports the bill as drafted. I commend the bill to the Senate. The Senate has a very energetic and active role as a participant in the oversight of the military justice system and, as far as the opposition is concerned, that role will continue into the future.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I thank Senator Johnston for his contribution and commend the bill to the Senate.

Question agreed to.

Bill read a second time.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

As no amendments to the bill have been circulated, I call the minister to move the third reading, unless any senator requires that the bill be considered in the Committee of the Whole.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

The Intelligence Services Legislation Amendment Bill amends the Australian Security Intelligence Organisation Act 1979—the ASIO Act—the Intelligence Services Act 2001—the IS Act—and the Criminal Code Act 1995 to ensure consistency and interoperability of provisions, to clarify provisions relating to computer access warrants, to provide new grounds for the collection of intelligence on an Australian person and to clarify the existing immunity provisions for intelligence agencies and officers.

On behalf of Senator Brandis, I indicate that the amendments proposed by the bill amend the ASIO Act to align the definition of 'foreign intelligence' with the definitions in the IS Act and the Telecommunications (Interception and Access) Act 1979 and amend the ASIO Act to clarify that a computer access warrant authorises access to data held in the target computer at any time while the warrant is in force, and that is not limited to data held at a particular point in time, such as when the warrant is first executed. This does not change the law but ensures consistency within the computer access warrant regime. The bill's provisions amend the ASIO Act to exclude the communication of information concerning the engagement or proposed engagement of staff within the Australian intelligence community from the security assessment procedures in the ASIO Act and put ASIO on the same footing as other intelligence agencies in relation to sharing information relevant to employment within the community.

The provisions amend the IS Act to permit the Defence Imagery and Geospatial Organi­sation specifically to provide assistance to the Defence Force in support of military operations and to cooperate with the ADF on intelligence matters. This is for clarification to ensure consistency with the Defence Signals Directorate. They provide for ministerial authorisation for the purpose of producing intelligence on an Australian person where the minister is satisfied that an Australian person is involved in, or likely to be involved in, activities related to a contravention of a UN sanction enforcement law. They amend the IS Act to clarify that the immunity provision in section 14 is intended to have effect unless another law of the Commonwealth, a state or a territory expressly overrides it, and they make a corresponding amendment to the computer offences in part 10.7 of the Criminal Code.

The amendments to the act proposed in this bill are relatively procedural and non-controversial. However, because any amend­ments in relation to enhanced intelligence gathering on Australians or conferring immunity in respect of otherwise criminal activity should be subject to close scrutiny this bill was considered in detail by the Senate Legal and Constitutional Affairs Legislation Committee. That committee reported very recently and I think it is worthwhile making some reference to that report.

The majority of the committee agreed that the proposed amendments would improve the practical operation of some key provisions in relevant legislation while maintaining sufficient safeguards where appropriate. The committee expressed confidence that the oversight by the IGIS to review the legality and propriety of activities of agencies within the Australian intelligence community—including monitoring, inspec­tion and inquiry powers—is a sufficient and appropriate safeguard. I respectfully agree with the views expressed by the committee. However—and this is an important qualification—the committee had serious reservations about the quality of the explanatory memorandum produced to accompany this bill. It found:

The lack of detail in the EM, particularly in relation to the proposed foreign intelligence amendments, did not assist the committee in undertaking its consideration of the legislation. The EM does not provide a detailed explanation of the need for the provisions and how the expansion of ASIO's powers will assist it and other foreign intelligence agencies to perform their functions, nor does it mention the safeguards in place that will ensure appropriate use of the enhanced powers.

Unsurprisingly, the committee considered this a significant omission. It found that the information subsequently provided by the department to the committee was extremely helpful and should have been included in the EM in the first place. The committee there­fore recommended that the Attorney-General's Department revise and reissue the explanatory memorandum to the bill as a matter of urgency to specifically include all additional information contained in the department's submissions relating to the proposed foreign intelligence amendments in items 3, 7 and 13 of schedule 1 of the bill, including detailed justification and explanation of why the amendments are considered necessary; specific examples of how the expansion of the definition of 'foreign intelligence' will assist ASIO and other foreign intelligence agencies to perform their functions; and an explanation of the safeguards in place to ensure appropriate use of the foreign intelligence collection function.

Given the strength of that recommendation to the Senate and the bipartisanship of that recommendation to the govern­ment, apparently—unless my informa­­tion has been superseded—the government has not seen fit to comply with that—

Senator Sherry interjecting—

There is one available, I gather from the minister. That is very good to see. It is an omission which has been rectified. I am pleased to hear that the government has taken that advice on board.

This is important legislation and the opposition will not delay its passage. For those who seek a proper explanation of the bill, I will record for Hansard that they should seek out the committee's full report.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I start my remarks by congratula­ting you, Deputy President Parry, on the role that you now hold. I know that it was a bit of a close call for you this morning but congratulations nonetheless.

I would like to add some comments on behalf of the Australian Greens. We have very strong reservations about the bill. I will go through the parts of the bill that we believe are extremely controversial and also touch on those that are not. Senator Humphries has managed to skirt around most of the main issues that the Australian Greens have concerns about and, with just a shift of emphasis, has informed us that the coalition sees no problem in waving this bill through.

We have very serious reservations about this and it is the intention of the Australian Greens to vote against this bill, more or less on the single ground that I will identify now. The bill authorises the Attorney-General to issue a search, computer access or listening device warrant to ASIO for the purposes of collecting intelligence when the AG is satisfied that the collection is, 'in the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing'. This is a sharp contrast to the current conditions for a search, computer access or listening device warrant, which occurs when the Attorney-General is, 'satisfied that the collection of that foreign intelligence is important in relation to the defence of the Commonwealth or to the conduct of the Commonwealth's inter­national affairs'.

This bill also redefines 'foreign intelligence' to mean, 'intelligence about the capabilities, intentions or activities of people or organisations outside Australia.' What we have before us this evening is a significant departure from the current definition that is 'intelligence relating to the capabilities, intentions or activities of a foreign power'. A foreign power is currently defined as, 'a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisa­tion'. That is the definition we have at the moment. The amendments would change the definition to, simply, 'people or organisations outside Australia'.

To be honest I do not understand how the Legal and Constitutional Affairs Committee got through the assessment of this bill and took the evidence that we did and, at my insistence, held a hearing which took about 90 minutes on a sitting day, and did not find that the provisions have radically expanded the scope of work that ASIO can now undertake. Most of the other clauses in this bill are more or less inoffensive, and some of them we strongly support. But the fact of the matter is that we have completely widened and opened up the mandate of this intelligence service, which has operated until now on very strict definitions of what it can and cannot investigate, and these strict definitions have been there for very good reason.

The bill clarifies that a computer access warrant authorises access to data held in the target computer at any time while the warrant is in force, not limited to data held at a particular point in time. That to me seems like a fairly common-sense amendment. It allows ASIO, like other AIC agencies, to share information about employment dec­isions about a person's employment or proposed employment without fear of that person gaining access to the information. Again, ASIO does not have these immunities and has requested them.

The bill gives the Defence Imagery and Geospatial Organisation, DIGO, a function to provide assistance to the ADF in support of military operations and to cooperate on intelligence matters. This is not an extension of power but a clarification of functions and is consistent with the functions of the DSD. The bill provides a new ministerial ground for obtaining intelligence when a person may be contravening a UN sanction. That is a common-sense amendment.

The bill provides immunity from civil and criminal activities for a limited range of circumstances directly related to the proper performance by the agencies of their functions. So certain laws, including state and territory laws, could impose a liability on agencies. The immunity provisions for computer offences in part 10.7 of the Criminal Code will also be amended to clarify immunity unless another Common­wealth law or state or territory law expressly overrides it. All of these provisions in the bill would be supported by the Australian Greens if we win support for the amendments that I will debate and move in the committee stage.

During the inquiry into this bill, very serious reservations were expressed by the Law Council and by the Castan Centre at Monash University. The Legal and Constitutional Affairs Committee, of which I have now been a full member for three years and one day, fast-tracked this inquiry and nobody was able to tell why. Our initial reporting date was September, and I am going to call on the minister when we go into the committee stage to explain what on earth was the rush, why the committee was required—and, I propose, probably instruc­ted—to report three months early, just as we had identified these very serious concerns.

The Law Council expressed strong concern in their submission and at the hearing, which was eventually held, as I say, during a sitting day. I was only able to attend because a particular bill that I was working on was pulled, and it still has not returned to the chamber; otherwise, I would not have been able to attend at all. ASIO, who you would argue is probably the most important agency with respect to this bill, did not appear. They were too busy on that day, so we did not take evidence from them. The questioning that I put to ASIO during the last round of budget estimates was curtailed by the chair. She informed us that the agency would report to the committee when it held its hearing, and of course that did not occur. So there has been quite a serious breakdown of process, on a really important matter, and I do not think we should overlook that.

The Law Council said in their submission that the bill would:

… afford the Minister and the agency almost unfettered discretion to determine when and how ASIO’s powers may be used to gather information about people’s activities, communications and relationships abroad.

'Almost unfettered discretion'—and it is the very tightly bound discretion under the current act that oversight agencies like the IGIS, for example, absolutely depend on to determine whether ASIO is acting within its mandate or not. We will splatter that mandate all over the landscape and allow them to simply go wherever they like. It will make it incredibly difficult for oversight agencies to tell whether the agency is within its mandate or not, because it is going to be very difficult to tell what that mandate is henceforth.

Currently, the threshold test for obtaining a warrant domestically is much more stringent. The minister must be satisfied that there are reasonable grounds to believe that it 'will substantially assist the collection of intelligence … in respect of a matter that is important in relation to national security'. So there is an implied test in there which is about to go missing. The Law Council indicates this is significant broadening of the range of circumstances where listening device warrants, computer access warrants and surveillance and search warrants are available about any person or group outside Australia whenever those activities are considered to be somehow relevant to national security, foreign relations or economic wellbeing—for heaven's sake. We have dramatically expanded the scope of this agency's reach, at the stroke of a pen.

The Law Council also expressed strong concern in their submission that:

… the oversight function of the Inspector General of Intelligence and Security is seriously undermined because, ultimately, the ASIO Act provides the framework against which that Office assess the lawfulness and appropriateness of ASIO’s activities.

We repudiate these views, I think, at our peril. It will be very, very difficult to unpick this or constrain ASIO if this sails through the parliament again on this bipartisan consensus that I am wearily used to on anything with 'national security' in the title. I think the committee process in this case—and it is unusual for me to say this—has actually failed us.

I have great respect for the vital work of the IGIS, but I am concerned that when I asked her for a response to the Law Council's concern she said she would:

… continue to monitor this closely, as not only will it affect my workload but also a significant increase in warrant applications could be a clear indicator of whether the relevant conditions are being applied too broadly

So she is going to just wait and see. She has clarified in subsequent correspondence to the committee that that was not intended to be a concern, that she was not anticipating or proposing that there would be a radical increase in warrant applications; she was simply stating the facts of the matter. If there are suddenly a flood of warrants, that will be an indication that the power is being interpreted too broadly. By then it will be too late. If I come in here with a private senator's bill proposing to restore the situation to that of the present day, there will be nine of us on this side and everybody else on the other. I can be fairly sure of that. It is important to get this right now because, once these powers are expanded, it will be extra­ordinarily difficult, as we have seen since September 11, to bring them back into some kind of proportionality.

The Castan Centre also registered concern that the amendments permit ASIO to investigate a far wider range of individuals and organisations, even where Australia's defence interests and international relations are not at stake. That is what is happening here. They explain in their submission that most non-state actors that threaten Australia are captured by existing notions of 'foreign political organisation'. That was the pretext provided in the—as Senator Humphries outlined, manifestly inadequate—explana­tory memorandum. We found during the committee work and during estimates hearings that the most difficult thing was to establish exactly what it is that the government proposes by way of these amendments. What is it ASIO needs to do that it cannot currently do? Nobody has been able to tell us that. The hearing descended into farce, as far as I was concerned, when the officer at the table simply was not able to tell us what ASIO would be able to do that they currently cannot. I can give the minister a heads-up now that that is the first thing I am going to ask him when we go into the committee stage.

Under existing law, the collection of foreign intelligence is confined to the collection of intelligence concerning the activities of foreign governments, organisa­tions they control or foreign political organisations for the purpose of the defence of Australia or the conduct of international affairs. That is how ASIO have been doing the work that they have been doing in tracking al-Qaeda and tracking terrorist organisations that are much closer to home operating in our neighbourhood. They have these powers. They use them extensively. It is the sole justification that has been given to us for why their staffing and their budget quadrupled in the last decade. It is precisely because they have the range of powers that they need to track non-state actors who mean Australians harm or mean to pursue violent political activities in other countries. They have the powers that they need. When we asked what exactly this was all about, nobody was able to tell us.

What it does do is that it permits ASIO much wider scope to investigate the activities of Australians who are overseas and who do not necessarily pose a threat but perhaps do have implications for foreign relations, such as Julian Assange and other people working in the WikiLeaks organisation. WikiLeaks and Mr Assange obviously have implications for Australia's foreign relations. Things falling out of the document drop were on the front page of every newspaper in the country day after day after day six months ago, and even now those shock waves continue to reverberate through the diplomatic community. So there is no way that you can say that there are no implications there for Australia's foreign relations. But should that entity be spied on by ASIO? Should our clandestine Cold War era spy agency be tracking down Mr Assange, maybe his family if they travel abroad, people working for that organisation, journalists, or people he is talking to or that that organisation is involved with? It appears that the reason that this bill has been known as the 'WikiLeaks amendment' in the Attorney's department is that that is precisely what is intended. The committee simply did not address that issue, and neither did the officer at the table when we asked during the inquiry. This is one example of how a person or organisation outside Australia, combined with the notion of Australia's foreign relations, very considerably expands the scope of ASIO's activities. Australians working overseas for firms that are major rivals to key Australian industries would also be covered. They would be caught by the economic wellbeing argument. If the government has a counterargument to this, it would be delightful to hear it.

Finally, the Australian Greens object very strongly to the committee reporting three months early so that this bill can be rushed through the Senate. What is the hurry? Why must the committee report on 22 June and not on 21 September, our original reporting date? Why is this bill being passed today? I was told in the hearing by the department: 'While I cannot reasonably talk about specific cases here, I can assure you that this is very important.' That is the clarification that Senator Humphries and the rest of the committee were seeking. We were told, 'It is very important, I can assure you.' We have to take that as read without any justification at all. Eventually in the Attorney's third submission they came up with the example of illegal fishing. This whole process smells fishy, so it is interesting that that was where they landed—illegal fishing, for heaven's sake. What is it meant to mean that the shorthand term for this bill in the A-G's department is the 'WikiLeaks amendment'? The fact is ASIO are already empowered to obtain, correlate and evaluate intelligence relevant to security and they may obtain warrants for this purpose. That is what they do. That is what this agency is up to day to day. The current definition of 'foreign intelligence' includes intelligence relating to the capabilities, intentions or activities of foreign political organisations, whether or not they are connected to or sponsored by a state. The power is there already, so what is this bill about?

In their evidence to show how the amendments would operate in practice and in their second and even third submissions—it is quite unusual for a department to have to come back with a third submission because the first two were so inadequate—the depart­ment were not clear on what additional targets they envisaged being picked up by the amendments. They do not explain—and I do not think they can explain—what legiti­mate targets of spying would not get picked up by the current definition of 'foreign political organisation'. Please do not give us illegal fishers, for heaven's sake. The answers, I think, have been quite embarrass­ing. They have been the subject of media attention as a result, and I think that has been entirely justified.

The Senate's committee system is pivotal to the thorough scrutiny of legislation. I have enjoyed serving on the committees that I have served on in the last three years. I think it is an incredibly powerful role of this chamber through the committee work it does. It is mostly extremely collegial. The work is mostly collaborative. To a degree party allegiances, if the bill is not too polarising, get left at the door and we can do the jobs that we were elected to do and that we are paid to do. When the committee process is short-circuited, we are all the poorer for it because there is no other line of defence in here. When this vote is taken, we will have missed the opportunity.

The inquiry process solicits expert opinion. It takes evidence in public hearings. It was absolutely not appropriate to hold a rushed public hearing in 90 minutes on a sitting day. I think that was completely out of order. The process is meant to assist in weighing up whether laws afford the right balance between security and civil liberties and whether they are necessary and proportionate. Something that the new independent terrorism legislation monitor is going to be giving a great deal of his time—his very limited time as a part-time appointment—to assessing is whether the laws that we have guiding the agencies that are tracking, challenging and shutting down terrorist activities in Australia and in our neighbourhood are proportionate, whether they are necessary and whether they are doing what the government said. If you wanted to get a headline on being tough on security and if these laws were put through on a bipartisan and not cross-party basis, are they actually serving a function? Do they make us safe? If they make us safe, let us leave them there and let us review them, assess them and approve them. If they do not—if they are simply about attacking civil liberties or pursuing other agendas under the guise of national security, which is a term I think is now far too loosely interpreted under the amendments that we are considering tonight—then let us at least take a good, cold, hard look at what we are doing, because it is extraordinarily difficult to roll these things back once they are in force.

I for one am very concerned that we are simply following the United States down the path of the Patriot Act—that anything at all can be justified in the name of national security. I invite the opposition and the government to contemplate the amendments that we will move in the committee stage. They are no more or less than what the Law Council proposed. They do nothing more than go after the definitions that I have been speaking on tonight. They do not go into any of the other non-controversial or quite sensible aspects of the bill. They are very tightly constrained. So I invite both the opposition and the government, when we move into the committee stage, to consider pausing and paying attention to what the Law Council and other witnesses told us on this extremely important matter and not just to wave this bill through because it has 'national security' in the title.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I would like to acknow­ledge and thank senators for their contri­butions to the debate on the Intelligence Services Legislation Amend­ment Bill 2011. Before I make my concluding remarks about the bill, there were a couple of points raised during the debate that I would like to take the opportunity to respond to.

Firstly, I would like to acknowledge and thank the members of the Senate Committee on Legal and Constitutional Affairs Legisla­tion Committee for their work in examining and inquiring into the bill. The committee tabled its report on 22 June 2011, making one recommendation, which was that the explanatory memorandum be revised and reissued in order to include more detail on the foreign intelligence amendments. The government accepts this recommendation, and I have the replacement explanatory memorandum which includes this additional information.

In respect of at least some of the matters that Senator Ludlam raised, there has been a lot of interest in and speculation about the amendments in this bill relating to ASIO's foreign intelligence function. I will take just a moment to reiterate that this is not about expanding ASIO's functions so that it can do a whole range of new activity; it is about ensuring that ASIO's limited foreign intelligence role is consistent with the foreign intelligence functions of Australia's other intelligence agencies.

ASIO has long played a role in and is intended to complement the foreign intelli­gence role of the other intelligence agencies. These roles have not been completely aligned, because legislation was drafted at different times, reflecting different threat environments. The amendments in this bill will complete the process of aligning the terminology in the Intelligence Services Act and the ASIO Act. This continues the government's commitment to more seamless cooperation between relevant agencies, which was recognised in the National Security Statement and the Smith review.

ASIO's core function is to obtain and assess intelligence and advise government in relation to matters relevant to security. This will not change. In addition, ASIO has a limited function to obtain foreign intelligence within Australia under warrant issued by the Attorney-General at the request of the Minister for Defence or the Minister for Foreign Affairs, who are responsible for Australia's foreign intelligence agencies. This is separate from ASIO's security function and is not initiated by ASIO.

Currently, the definition of 'foreign intelligence' in the ASIO Act differs from that in the Intelligence Services Act. This could create intelligence gaps because it would mean that foreign intelligence collected within Australia would be a narrower range of intelligence than the foreign intelligence agencies are able to obtain in exercising their functions outside Australia. With the rise of individuals and non-state or non-political organisations engaged in activities such as the proliferation of nuclear, biological, chemical and conven­tional weapons and related technologies, it is increasingly important to address this issue.

There are a range of safeguards and accountability mechanisms that apply to ASIO's foreign intelligence function. These are outlined in the replacement explanatory memorandum. In particular, I emphasise that ASIO can only exercise its foreign intelligence function under warrant or auth­orisation issued by the Attorney-General. The Attorney-General must be satisfied, on the basis of advice from the Minister for Defence or the Minister for Foreign Affairs, that issuing a warrant or authorisation in a particular matter is in the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing.

These are serious matters of significant national interest. These matters have provided the construct and limitations for the functions of Australia's foreign intelligence agencies since these functions were enshrined in the Intelligence Services Act in 2001. ASIO's foreign intelligence function, as with all its activities, is subject to rigorous oversight and accountability, including by the Inspector General of Intelligence and Security. The inspector general has access to all of ASIO's records and warrant documentation and is able to examine the legality and propriety of ASIO's activities.

In addition to the foreign intelligence amendments, the bill makes a number of other important amendments to improve the operation of the ASIO Act, the Intelligence Services Act and the Criminal Code. These are measures that have been identified through practical experience with the legislation. The government remains committed to ensuring that our national security agencies have the necessary tools and resources to undertake their important functions in a changing and dynamic national security environment.

I table a replacement explanatory memorandum relating to the Intelligence Services Amendment Bill 2011. The memor­andum takes account of recom­mendations made by the Legal and Constitu­tional Affairs Legislation Committee. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill stand as printed.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

In the few minutes remaining to us I think that, rather than moving the Greens amendments, I might just put a fairly simple question to the minister. Maybe the government has had a bit of time to think about this one now: what will this bill allow ASIO to do that it cannot currently do?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

The amendment will mean that ASIO's foreign intelligence function is complementary to the functions of Australia's foreign intelligence agencies. The ASIO Act is currently limited to intelligence about foreign powers, which may not cover the same range of intelligence about individuals and non-state or non-political organisations that are covered by the Intelligence Services Act, so I emphasise that 'foreign powers' could be taken to read as being different from intelligence about individuals and non-state or non-political organisations.

An officer of the Attorney-General's Department gave a number of examples of the sorts of scenarios where the proposed amendment might apply at a Senate estimates hearing on 21 May 2011. The examples are: the proposed amendment will enable foreign intelligence collection agencies to better counter the activities of weapons proliferators. The proliferation of nuclear, biological, chemical and conven­tional weapons and related technologies is a complex global issue, and those involved include individuals and companies working in and across multiple countries.

Sitting suspended from 18:30 to 19:30

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Welcome, Senator Feeney. Maybe you can shed a little bit more light than Senator Sherry has.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I understand we were in the middle of having a conversation about cyber­security. In considering the cyberattacks on Australian government and commercial infrastructure related information networks, I understand that cyberattacks are an emerging threat to Australia's national security and national economic wellbeing. There is also a concern about major organised crime syndicates and their capacity to be effective in attacking the Australian banking sector. That would mean that there would be a significant loss of confidence in the banking system, and that would have collateral effects through our whole financial and economic system and in that way would do considerable damage to our national economic wellbeing. I understand that was the point that Minister Sherry was halfway through when we broke for dinner. From this moment onwards I am happy to take questions as I hear them.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I have a couple of questions before I discuss and then move the set of amendments I have proposed. The issue that I had put to the minister before we got up for dinner was the purpose of the bill—what it is actually for—because nobody has really been able to satisfactorily identify what you need ASIO to be able to do that it cannot already do. In the pursuit of its quite legitimate surveillance and intelligence-gathering activities on organisations engaged in politically motivated violence, terrorism and so on, I do not think there is anything controversial about ASIO going ahead and doing that. What becomes controversial is when we quadruple its budget and staffing allocation, build it a fortress down on the lake and then completely open the floodgates to the kind of investigative work that it can undertake.

This is not about new powers for ASIO. That was something that the minister said before we rose for dinner to try to ease my mind that ASIO was not getting any new powers here. That is not the point. What they are being given is the ability to exercise the powers that they currently have across a vastly broader range of groups, individuals and now, I think quite clearly, civil society organisations.

I will put to you a brief quotation from the submission of the Law Council of Australia to the Senate Legal and Constitutional Affairs Legislation Committee on 5 May. They told us that the threshold tests—the boundaries around which ASIO is permitted or not permitted, either on their own motion or, later, if ASIO is being investigated by the IGIS as to whether they were inside or outside their mandate—are important. Mr Grant, the Secretary-General of the Law Council of Australia, said:

These threshold tests are important. If they are framed too broadly they provide no safeguard against the misuse or overuse of ASIO's powers. Further, the effectiveness of the oversight function of the Inspector General of Intelligence and Security is seriously undermined because, ultimately, the ASIO Act provides the framework against which that Office assess the lawfulness and appropriateness of ASIO's activities.

My question to you, Minister, is how, even if you accept that the government does need to expand ASIO's mandate—and I do not for a moment—you answer the quite legitimate point raised by the Law Council. You have thrown the baby out with the bathwater. You have gone so far that there will henceforth be no benchmarks against which to assess whether ASIO is acting legitimately or not, because you have so broadened the range of targets that it may now surveil.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I thank the senator for his question. While your question is a reasonable one, I do not accept your conclusion. The first point I would make is that the amendments to the foreign intelligence collection provisions are not too broad. We must remember that ASIO's foreign intelligence role is a role that is defined by and complements the functions of the other existing intelligence agencies, which are also responsible for obtaining foreign intelligence. ASIO's foreign intelligence function is intended to enable similar intelligence to be collected where it is necessary to collect foreign intelligence within Australia. For the ASIO foreign intelligence function to operate as a truly complementary function, it needs to reflect the same intelligence and purposes for which that intelligence may be obtained under the Intelligence Services Act 2001. If they are not aligned, there are some potential gaps in Australia's intelligence coverage.

I would also make the point that the threats that are identified to Australia in this space are forever changing, and it is our challenge as legislators to make sure that the agency remains continually equipped with the powers it needs to discharge the function we all require of it. So the ASIO Act being currently limited to intelligence about foreign powers may mean that ASIO is not able to cover the same range of intelligence about individuals, non-state and even non-political organisations and actors that are covered by the Intelligence Services Act.

The obvious issues we need to turn our minds to in that respect are the proliferation of nuclear, biological, chemical and conventional weapons. Of course, what flows from that is the need to have a look at related technologies in a complex global environment and the multiplicity of actors that might be operating in that space, and that then may mean individuals and com­panies working across multiple countries. I know, from having listened to you talk about nuclear proliferation issues in the past, you are utterly familiar with those questions. In addition to those, it will facilitate oppor­tunities to detect cyberattacks. Cyberwarfare, I guess, is an increasing focus not just of commentators, not just of intelligence organisations, but also of us legislators. So my answer is that, as ASIO's role needs to countenance new technologies, the internet and increasingly complicated networks that may span non-state actors, for all of those reasons this legislation is giving ASIO powers that accord with its traditional task but enable it to move across the changing environment of organisations and non-state actors that it must keep an eye on.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for his response. Minister, can you clarify for us that, for the 60 years of the Cold War and the entire period of the existence of this agency, they have been unable to track nuclear, chemical and biological weapons if they are in the hands of non-state actors? I find that utterly incredible.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

It is probably fair to say that I am not in a position to confirm that at all, because I am not the minister to whom ASIO reports and it is not the sort of operational information that would properly find its way into my hands, and it has not found its way into my hands. So, no, I am unable to confirm that.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, I just wonder then whether, as a courtesy, you could put that question to the officers from the department who are sitting immediately on your left and who are paid by the responsible minister to know answers to questions like this one, which goes to the heart of the question that I put to Minister Sherry before we got up for dinner: what is this bill allowing you to do that you cannot already do? ASIO has been able to track non-state actors' handling of weapons of mass destruction, precursor materials and things involved in exactly that kind of trafficking, which are legitimate targets of clandestine intelligence agencies. You have been doing that for 60 years. Can you please tell us what has changed.

There is nothing in this bill—unless you can point it out to me; there is certainly nothing controversial—that addresses the medium; there is nothing that addresses cyberattacks. It is about the people and the 'who' we can go after, not about the medium or the vector that we might be being attacked behind. There are a couple of questions rolled in there, but I am still trying to get to the heart of what this amendment actually allows ASIO to do that it cannot already do. Just by way of an aside, I do not think the example of tracking of weapons of mass destruction or their precursor materials is a legitimate example. Our intelligence agencies are already perfectly capable of doing that, and they have been doing that for decades.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Two points, Senator. The first is that ASIO's mandate, if you will—and that is my word—is set out in the section I am looking at here, which is where 'security' is defined. It is part I, section 4. There we see the definition of security:

"security" means:

and then it is set out in paragraphs (a), (aa) and (b). I think we see there a codification of some of the issues that you are looking for.

I guess that when one contemplates the Cold War one is contemplating an environ­ment that is dramatically transformed today. We are obviously not today working in an environment where there is something of a global contest between two clearly discerni­ble ideologies and constellations of nation states. What we are looking at today is, firstly, a multipolar international environ­ment where non-state actors are particularly relevant and, secondly, an environment which has been transformed by technology. So the sorts of materials you were talking about and the sorts of tools that are required to monitor the movement of those materials, I think, have greatly changed, and as legislators we need to make sure that that is something we remain abreast of.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, that was fascinating. I recognise that you are here in a representational capacity.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Yes!

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The internet has been around for a decade and a half in broad use. We saw the extraordinary violence inflicted by non-state actors on the people of the United States on September 11, and the subsequent attack that killed Australian citizens. We have been in this fluid security environment, you could say, at least since the late 1980s or early 1990s. What does this bill do, after all that period of time, that our intelligence agencies have not been able to do for the last 15, 20 or 30 years? I still feel absolutely no closer at all to understanding that.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

If anything is a threat to security as defined in the ASIO Act then ASIO can investigate that matter. There may be some overlap, but this is about ASIO's foreign intelligence function and it is important to align the definitions so that there is no gap.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, you will be very pleased to hear that when I move the Australian Greens amendments we will in fact be moving some consequential amendments to the Telecommunications (Interception and Access) Act 1979 so that the definitions remain entirely consistent. This is not an argument about consistency; it is an argument about appropriateness. Can the minister address the question that in framing—and I will use the same term as you did—the mandate of ASIO to be able to track a vastly larger range of actors you have now brought in groups of people who were up until this point, and I guess that is the whole point of the bill, beyond the range of surveillance and tracking by ASIO, including civil society organisations such as WikiLeaks?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Firstly, I will address your point concerning WikiLeaks, which I am sure was not entirely rhetorical. At a Senate estimates hearing on 25 May this year, the Secretary of the Attorney-General's Department stated that that was not the department's view and that the officers of the department did not refer to this amendment as the 'WikiLeaks amendment'. The Director-General of Sec­urity also advised that the amendments are not connected to the WikiLeaks matter and he stated that the amendments to the legislation were considered long before WikiLeaks arrived on the scene in the way that it did.

I suppose the government would emphatically assert that this legislation is not the product of WikiLeaks or the issues around WikiLeaks. We would assert that this bill was in development long before WikiLeaks became the topical issue that it has subsequently become.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister, for the comprehensive answer to the question that I did not ask, which was how the bill was being described within the A-G's Department. Is it fair to say that this organisation, very specifically and not hypothetically, is now within the range of surveillance by ASIO, whether or not it was before?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The problem I have here, Senator, is that it is inappropriate for me to get into operational matters. As a consequence, I would be straying wildly outside my lane if I started to identify those organisations that may, were or may not be subject to ASIO investigation. So I do not think I am able to provide an answer.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I am incredibly disappointed but not at all surprised, because that is the same brick wall we ran into with the officers of the department, the same ones who are advising you tonight—'It is just tremendously important. We cannot tell you exactly why but it is important. You will just need to trust us that, operationally, something or other needs to happen behind the scenes so that undisclosed organisations can now be tracked by our clandestine surveillance agency.' It is going to make it monstrously difficult for the oversight agencies and offices like the IGIS to determine whether or not they are acting unlawfully because henceforth it is going to be impossible to tell. If we have landed at the same point of stalemate as we did in the estimates committee and in the committee hearing into this bill, I will proceed to the amendments that I have circulated on sheet 7102.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Senator Ludlam, taking that point, the government would make the counterpoint that the legislation that is being proposed, together with the existing regulatory frame­work, means that there are already signi­ficant safeguards that apply to ASIO's foreign intelligence function. For those of us who are students of political history, we will find that the Greens are not unique in seeking to make sure that these intelligence organisations are subject to the proper controls. That is a tradition to which my own party belongs as well.

Having said that, the government is obviously satisfied with the safeguards that exist. I am happy to spend a moment talking about those. Firstly, safeguards under the Intelligence Services Act are applicable because ASIO's foreign intelligence function is performed at the request of the Minister for Defence or the Minister for Foreign Affairs, and they are responsible for Australia's foreign intelligence agencies. Before a request is made of ASIO to collect foreign intelligence within Australia, requirements under the Intelligence Services Act need to be complied with. These include requirements to obtain a ministerial authorisation if the agencies undertake an activity for the purpose of producing intelligence on an Australian person. You would have to agree that is of signal significance. A ministerial authorisation may be granted by the Minister for Defence or the Minister for Foreign Affairs only if they are satisfied that the Australian person is engaged in certain specified activities. There is a range of other safeguards that apply in the event that a ministerial authorisation is given, including time periods for that authorisation, being six months. In addition to all of that, the defence minister or the foreign affairs minister must be satisfied of the basis of the request for ASIO to collect foreign intelligence. The relevant minister would provide sufficient information for the Attorney-General to be satisfied as to why the request is in the interests of Australia's national security, foreign relations or national economic wellbeing.

In making a decision regarding the discharge of its foreign intelligence function, ASIO has to comply with relevant guidelines and ministerial directions about how it should perform its functions. ASIO must also comply with internal protocols and procedures, which have been carefully drawn with a view to ensuring that their powers are exercised carefully and appropriately. ASIO also has to consider this in the context of its limited resources and other intelligence priorities. It is not resourced to the point that it can engage in intelligence frolics.

Warrants are submitted to the Attorney-General for approval only after they have been through an exhaustive system of checks within ASIO and the Attorney-General's Department. If ASIO seeks to procure a foreign intelligence collection warrant, ASIO has to make a case with supporting material when putting a warrant request to the Attorney-General. The Attorney-General must be satisfied on the basis of advice received from the relevant minister that the collection of foreign intelligence relating to a matter is in the interests of Australia's national security, Australia's foreign relations or Australia's economic wellbeing. All of these are significant matters of national interest.

There are also reporting obligations in section 34 of the ASIO Act requiring the Director-General of Security to report in writing to the Attorney-General on each foreign intelligence collection warrant. The Director-General must report on the extent to which the action taken under the warrant has assisted the organisation in carrying out its functions. Similar reporting requirements apply to the foreign intelligence agencies under section 10A of the Intelligence Services Act. This provides further assurance that foreign intelligence collection by ASIO is appropriate and being used for legitimate purposes.

Finally, section 17A of the ASIO Act includes an express protection for lawful advocacy, protest or dissent, and I am sure that you will agree that that is also of signal importance. The Inspector General of Intelligence and Security regularly reviews ASIO's warrant documentation and, in doing so, has full access to all of the warrant information including the supporting evidence that is provided to the Attorney-General. The Inspector General of Intelligence and Security looks at the legality and also the propriety which encompasses all those other aspects that sit in and around the legislation, including of course whether ASIO has sufficiently adhered to its internal guidelines. So, Senator, I suppose the government's position here is that there are strong protections and strong safeguards and this is not an undue or unwarranted, let alone frivolous, expansion of the powers of our intelligence agencies.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister and I feel enormously reassured.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

So you should!

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I feel as though the minister just read a big bag of wet cement into the Hansard record. All I will do, I suppose, by way of response is read briefly one last time from the Law Council's submission, where they put to the committee:

The proposed changes will almost render meaningless the threshold test that must be met by ASIO in order to obtain a warrant or authorisation to collect intelligence under 27A and 27B. A warrant or authorisation will be able to be obtained to gather information about the activities of any person or group outside Australia whenever those activities are considered to be somehow relevant to Australia's national security, Australia's foreign relations or Australia's national economic well-being.

Even if it is accepted that the current definition and test need revision in light of the changing nature of threats to Australia, it does not follow that the new definition and test must necessarily be reframed in such broad terms.

And finally they say:

The new definition and test will afford the Minister and the agency almost unfettered discretion to determine when and how ASIO's powers may be used to gather information about people's activities, communications and relationships abroad.

And I think that pointed submission from the Law Council kicks a bit of a hole in what the minister just read in that was supposed to reassure us about the safeguard framework that has been built up in a cross-party way by this parliament, by state parliaments, by conservatives, by the Labor Party and by the Greens to safeguard against the undue use of power by clandestine agencies that this parliament has a limited oversight of. This is where we find ourselves. Chair, I will seek your advice about whether I should seek leave to move amendments (1), (2), (3) and (4) together or just (1), (2) and (3).

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

My advice would be (1), (2) and (3), Senator. Are you seeking leave to move (1), (2) and (3) together?

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Unless Senator Brandis would like to make a brief late contribution and put some sense on the record.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I have been listening to the exchanges between Senator Ludlam and Senator Feeney. I do intend to say something but I thought I might say that when Senator Ludlam moves his amendments.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—The Greens oppose items 3, 7 and 13 in schedule 1 in the following terms:

(1)   Schedule 1, item 3, page 3 (lines 13 to 16), item TO BE OPPOSED.

[definition of foreign intelligence]

(2)   Schedule 1, item 7, page 3 (line 24) to page 4 (line 4), item TO BE OPPOSED.

[collection of foreign intelligence]

(3)   Schedule 1, item 13, page 4 (lines 17 to 24), item TO BE OPPOSED.

[collection of foreign intelligence]

I think that they do no more or less than what the Law Council proposed. They oppose the definition of 'foreign intelligence' and the language around the collection of foreign intelligence in two clauses. I will subse­quently move amendment (4), which makes consequential amendments to the Tele­communications (Interception and Access) Act which then change the definition in that act to provide for that consistency that I think all parties are very keen to see remain on the statute books. So, without further debate, I will commend those first three amendments to the chamber.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition opposes the Greens amendments. Let me explain why. Before I do, let me affirm the opposition's full confidence in ASIO, and in its Director-General in particular. I listened to the exchanges between Senator Ludlam and Senator Feeney, and the opposition joins with the government in being of the view that the safeguards provided for in the ASIO Act and the mechanisms of institutional scrutiny through the director-general of intelligence services and parliamentary scrutiny through the joint parliamentary committee provide for an appropriate and thorough range of safeguards. There are also—and this is a point that Senator Feeney made—statutory protections in the ASIO Act itself which are unaffected by this legislation. So, on a statutory basis, from the point of view of parliamentary oversight and from the point of view of institutional oversight through appropriate oversight agencies, the opposition is well satisfied that we have the appropriate balance between giving ASIO, the particular agency in this case, the operational flexibility it needs and ensuring that it does not overreach its functions and that, were there to be any overreach or inappropriate use of power, that overreach or inappropriate use of power would be identified and arrested by institutional and parliamentary scrutiny.

Against that background, let me address the amendments which Senator Ludlam moved. The effect of the amendments is to oppose the proposed amendments to the ASIO Act which change the definition of 'foreign intelligence'. Let me deal with them seriatim. The first of the amendments opposed by the Greens would insert a new definition of 'foreign intelligence' into the ASIO Act. The new definition would define foreign intelligence as 'intelligence about the capabilities, intentions or activities of people or organisations outside Australia'.

The current definition of 'foreign intelligence' in the act, which would be replaced by that definition, is intelligence relating to the capabilities, intentions or activities of a foreign power. A foreign power in the ASIO Act is defined as a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisa­tion. The term 'foreign political organisation' is not defined. There is no question at all that the effect of this amendment would be to expand the scope of foreign intelligence that might be lawfully gathered by ASIO, in particular, by identifying individuals which the current act does not provide for and expanding, by making more generic, the character of organisations which might properly be the subject of intelligence gathering by ASIO.

I am bound to say that in the changed national security and international security environment, particularly with the growth of terrorist organisations of a very amorphous form, many of them identified with individuals and inspired by individuals, and those organisations which are unstructured and represent a much less easily defined character of threat to Australia and its interests, it seems to the opposition to be absolutely prudent for the definition of foreign intelligence to be made more flexible than being defined merely by reference to foreign governments or foreign powers, given the rigidity of the definition of 'foreign powers' in the ASIO Act. There is much talk, as we know, in this area of policy about non-state actors, but non-state actors can assume a variety of forms, and it is because of the variety of forms which non-state actors may represent that it is, in our view, important that the intelligence capability of ASIO be made more flexible. None of the safeguards in the act is affected by this amendment. This is a jurisdictional amendment to reflect the realities of the practice of international terrorism in particular. It leaves the protections in the ASIO Act entirely unaffected.

The other two government amendments to the ASIO Act which are opposed by the Greens are amendments to sections 27A(1)(b) and 27B(b) of the ASIO Act. They have a common form. In both cases, they extend the interests which might be the subject of a ministerial directive from the interests as currently defined which are—and I will paraphrase—limited to the collection of intelligence relating to matters important to the defence of the Commonwealth or the conduct of the Commonwealth's inter­national affairs—that is the language of the current act—to intelligence relating to the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing. Apart from the substitution of the term 'Commonwealth' for the use of the word 'Australia', there are two substantive changes effected by those amendments. The first is to broaden the first category from Australia's defence to Australia's national security.

I will pause here and challenge Senator Ludlam to tell the chamber why it is that it is unwise to define the proper subject of a ministerial directive to the Director-General of ASIO as a matter relating to Australia's national security rather than Australia's defence. National security has a broader connotation, but surely what ASIO is concerned with is protection by the gathering of intelligence in relation to Australia's national security—'national security' being a somewhat more comprehensive and more modern term—rather than Australia's defence in a purely military sense. That seems, to the opposition, to be the very thing that ASIO ought to be concerned with.

The second respect in which these two proposed amendments of the ASIO Act expand the scope of a ministerial directive is to include a new category—that is, Aust­ralia's national economic wellbeing. Senator Ludlam, who could possibly imagine that in the modern world in which economic warfare, in particular cyberwarfare, is identified by any intelligent observer as one of the great threats to a nation's wellbeing, there is something wrong or perverse or overreaching in character about identifying a new category—that is, Australia's economic wellbeing—as a matter properly to be within the purview of a ministerial directive to the director-general of intelligence? For those reasons the two material changes, the second and third of the government amendments which you oppose, are appropriate amendments by redefining defence as national security and including a new category—that is, the protection of Australia's economic wellbeing. These seem to the opposition to be entirely suitable amendments and, for that reason, the opposition supports the government's amendments and opposes your amendments which would seek to delete them from the bill.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Brandis for making a contribution to at least make clear the coalition's views on these changes. I think Senator Trood raised a couple of issues during the committee hearing but, apart from that, the coalition has been almost totally absent from the debate. So it is good that you are least here this evening to give us the benefit of your views. I do not share your comfort that the definitions that the govern­ment is introducing here, which we are seeking to repeal tonight, do not, as the Law Council and the Castan Centre for Public Law have indicated, radically broaden the range of subjects on whom ASIO should now be spying. I am not as comfortable as Senator Brandis and his colleagues in the coalition or the Labor Party with the idea that corporate espionage is now an entirely legitimate activity for ASIO. They must be doing something in that giant complex that is under construction on the other side of the lake; they are not in there quite yet, but we now have a better idea, albeit still shrouded in complete ambiguity, of what ASIO will be up to. I do not share the opposition's comfort whatsoever that we are not about to vote through a very significant expansion to ASIO's mandate. I will not detain the chamber further. I commend the amendments.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I do not want to prolong this, but may I respond to Senator Ludlam's contribution by saying this. First of all, we have discussed like matters in the past—not these particular matters but like matters—and I entirely accept your good faith in relation to this. As the saying goes, I know where you are coming from. I think you understand that I always cast a sceptical eye over any legislation which significantly expands the policing power of the state, including the intelligence-gathering power of the state. With all due respect, I urge you not to adopt the Pavlovian response that, merely because a piece of legislation expands the mandate of a national security agency, it is ipso facto to be opposed. There are materially changed circumstances.

Any sophisticated observer of these matters would share your view, whether they be from the right of the political spectrum or the left or all points in between. We do have a broader understanding of what national security consists of—beyond merely military defence—than we did when this provision was written into the ASIO Act. We do have a more acute awareness of the extent to which damage to the economic wellbeing of Australia is itself a matter which has a direct bearing on the Australian national interest. As I said earlier, the practice of attacking our important and vital trading interests through cyberwarfare—a phenomenon we have seen in recent years—has a direct bearing on our national wellbeing.

Like you, Senator Ludlam, I start from a presumption against further expanding the policing powers of the state—because I am a good Liberal. You are probably not a good Liberal, Senator Ludlam; you are probably a good Green—whatever that means. But Liberals do have a presumption against the expansion of state power. It is therefore a non sequitur that any statutory amendment which brings up to date and contemporises the powers of a national security and policing agency is ipso facto a bad thing. On this occasion, on a considered and reflective view, the opposition agrees with the government that these are beneficial and appropriate amendments.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government obviously opposes Greens amendments (1) to (3). I do not think that will come as any surprise to Senator Ludlum but I needed to state that on the record. I thank Senator Brandis for his contribution. Indeed, I thank the opposition for their position with respect to these amendments.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that schedule 1, items 3, 7 and 13, stand as printed.

The committee divided. [20:16]

(The Chairman—Senator Parry)

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (4) on sheet 7102:

Schedule 1, page 7 (after line 14), at the end of Part 1, add:

Telecommunications (Interception and Access) Act 1979

28A Section 5 (definition of foreign intelligence)

Repeal the definition, substitute:

foreign intelligence means intelligence relating to the capabilities, intentions or activities of a foreign power.

I do not think I need to further debate amendment (4) on the same Australian Greens sheet, 7102. It is consequential to the first three amendments, so I will just commend it to the Senate.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

It is a consequential amendment. I would indicate on behalf of the opposition that, for the reasons indicated in the speech I gave a little earlier, the opposition will be opposing this change to the definition of foreign intelligence.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Chairman, I take this opportunity to congratulate you on your election as Deputy President of the Senate. I would also indicate the government's opposition to Greens' amendment (4). The government does not support this amendment and I would make a few points with regard to that.

The Telecommunications (Interception and Access) Act 1979 was amended in 2010 to provide a definition of foreign intelligence that is consistent with the Intelligence Services Act. Earlier in the debate, Senator Ludlum indicated that his amendment would remove any inconsistencies and certainly would not give rise to any new inconsistencies. Unfortunately, it is the government's view that this is not the case. While the government's bill ensures that there is consistency with the Intelligence Services Act, the act that governs the collection of foreign intelligence by other agencies, Senator Ludlum's amendment would introduce a further inconsistency between these acts.

Further, the amendment of 2010 was particularly important for ensuring that Australia's national security agencies were able to obtain interception warrants, to gain intelligence necessary to protect our national interests, not just from traditional sources but from challenges posed by foreign individuals and organisations operating without any government support, whether it be for economic or personal gain.

Repealing this definition would prevent interception warrants being obtained under sections 11A, 11B and 11C of the Telecommunications (Interception and Access) Act in relation to individuals in nonstate or nonpolitical organisations who might be involved in activities such as people smuggling, people trafficking, illegal fishing and weapons proliferation. I simply repeat the point that has been made several times during this debate: the plethora of nonstate actors and the development and evolution of new threats and new technology threats are all things that the government remains keenly concerned about and the legislative framework should reflect that fact.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that Greens amendment (4) on sheet 7102 be agreed to.

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I would like the Australian Greens votes on the third reading of the bill recorded.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

Mr Deputy President, in commencing, I add my congratulations on your election by the Senate to the office of Deputy President.

I rise to speak on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. The bill amends the Migration Act 1958. The purpose of the bill is stated to ensure that anyone who is charged with a criminal offence whilst in detention is found to have failed the character test. From the date of commencement, a person will fail the character test if they have been convicted of an offence committed in immigration deten­tion, during an escape from immigration detention, during a period where a person has escaped from immigration detention or if the person has been convicted of the offence of escaping from immigration detention, whether the conviction or offence occurred before, on or after that commencement. Where a person fails the character test, the delegate has the power to refuse the grant or cancel a visa on these new character grounds.

The coalition will be offering some support to this bill. However, we will be seeking to make an important amendment which I will return to later in my remarks. In the coalition's position, the bill is too little too late and it has only become necessary because of the deliberate policy of the former Rudd and the current Gillard Labor governments to soften the coalition's tough but fair border protection policies. All this bill does is create provisions to ensure that anyone inside a detention centre will fail the character test if they commit a crime that attracts a custodial sentence of less than 12 months duration. These changes are in part in response to the criminal behaviour during the recent disturbances at the Christmas Island and Villawood immigration detention centres which caused substantial damage to Commonwealth property and which cost taxpayers millions of dollars. It is stated that it is intended that these changes will also provide a disincentive for people in immi­gration detention from engaging in violent and disruptive behaviour.

In discussing this bill we must be cognisant of the fact that it does not excuse the minister's continued failure to act to cancel or refuse visas during his time in office. The important point to remember is that the minister currently has the powers to do that but he has failed to avail himself of those powers. After the Christmas Island riots, which began on 12 March 2011, the minister gave a press conference where he stated:

Character can have regard to a number of factors: whether somebody has been sentenced for a criminal activity to prison for more than 12 months, and also general conduct and whether somebody’s general conduct implies that they are not of good character. ... character considerations will be taken into account for those on Christmas Island who have organised and perpetrated this sort of activity. It will be taken into account by our decision makers and ultimately by me.

That was the statement of the current minister. When the minister uttered those words he was admitting that he is currently personally able to make a decision to cancel a person's visa pursuant to section 501(3) of the Migration Act. In such a case, the decision is not subject to the rules of natural justice, nor is it reviewable on the merits and nor is the minister bound, in Australian law, by any of the matters set out in ministerial directions. I again state for the record: the minister has failed to make any decision to refuse or cancel visas using the existing powers. In fact, despite these powers, the history of Australian Labor Party ministers is that they have used their powers under section 501 only once in the past two years to refuse or cancel a visa.

Let's now compare that to the time between 1996-97 and 2003, when Philip Ruddock, as the minister for immigration, personally cancelled 570 visas under the character test provisions of section 501. Those are provisions which are in place and which the current minister, if he chose to, could avail himself of.

However, the current minister is one who refuses to exercise these powers. Why?—because he is a minister who is weak, spineless and completely out of his depth when it comes to the immigration portfolio. One of the fundamental flaws of this bill is that the amendment proposed by the government will only apply to a limited number of people. Whilst the coalition support the new criminal provisions we believe they do not go far enough in that they do not apply to every non-citizen. In fact, the government have failed to provide an explanation as to why the provisions do not apply to every non-citizen.

The government is very good in its rhetoric when it talks about wanting to strengthen the current border protection policies in Australia but this bill only goes part of the way. The coalition want to see this bill go all of the way and will help the government. We will help the government strengthen border protection in this country. We are going to propose an amendment to ensure that all visa holders are subject to the same requirement. Every visa holder convicted of a crime that attracts a custodial sentence of less than 12 months will also be found to be of not good character and liable to visa cancellation.

Why does the government want to restrict this bill to a certain class of person—those inside immigration detention—when it is telling the Australian public that the purpose of this bill is to strengthen the current laws? The current laws entitle the minister, if he chooses, to cancel someone's visa. But he does not choose to do that.

Proceeding to visa cancellation requires decision makers to consider the requirements set out in ministerial direction 41. The minister is not bound by these directions, nor is his decision subject to appeal on the merits. Under section 499 of the Migration Act the minister may give written directions to decision makers, including the Adminis­trative Appeals Tribunal, on how they are to exercise powers under the Migration Act. The direction requires no act of parliament or regulation. It is issued administratively by the minister and is legally binding on all decision makers.

In June 2009, Minister Evans, the then immigration minister, issued direction 41 under section 499 in relation to visa refusal and cancellation under section 501 of the Migration Act. Minister Evans's direction revoked the previous direction 21 issued by Minister Ruddock in August 2001. The three primary mandated considerations established in the Ruddock directive for determining whether discretion should be used under section 501 to deny a non-citizen from remaining in Australia were (a) protection of the Australian community and members of the community; (b) the expectations of the Australian community; and (c) the best interests of the child or children, where they are involved.

The Evans directive abolished the 'community expectations' mandatory con­sider­ation. This requirement would have had special relevance to the recent riots and incidents in our detention network, where, surprisingly, under the coalition's directive, it would have demanded action. However, under Minister Evans—under the Australian Labor Party's watered down directive—there is no community expectation test.

In addition, under the 'protection of the Australian community' mandatory con­sideration, the Evans directive abolished the subcriteria that 'visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)' as well as specific reference to serious crimes against the Migration Act. This is also telling, given that the minister is now saying to the people of Australia that he wants to provide a general deterrent against misbehaviour in the detention network. If this is the case why doesn't the current minister merely seek to amend the new directive?

The Evans directive also abolished references to non-citizens providing bogus documentation or providing misleading statements or declarations as relevant to the consideration of a person's general conduct when considering whether they were of good character. Why is this relevant? This is relevant because during the coronial inquest into the explosion on board the SIEV36, numerous false statements were provided by those on board. However, we were faced with a minister who, yet again, did not take any action. All of the people on board the boat were provided with permanent visas, including those found to be part of a plan to scuttle the boat.

The Evans directive also gave greater primacy to international treaties. These are elevated to mandated primary considerations in all cases when exercising discretion. In the previous Ruddock directive they were listed to be considered only where relevant and they were subject to an overarching qualification that Australia's national interest take precedence. Paragraph 2.24 in the Ruddock directive stated:

Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.

That was under the Ruddock directive. That is not the case under the directive implemented by former Minister Evans.

The Ruddock directive states:

The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.

It is this latter sentiment that has been abandoned by the Australian Labor Party in the Evans directive, and maintained by Minister Bowen, despite his public statement that he wants to get tough.

The coalition believes the minister should repeal direction 41 and restore the provisions contained in direction 21, in particular the community expectations test and the sov­ereignty clause to give primacy to national interest requirements over international obligations. Whilst it is clear that the Evans directive weakened the grounds, it would not have prevented the minister acting in relation to the SIEV36 bombers or Christmas Island rioters should he have chosen to do so. The only reason we are debating this piece of legislation in the chamber today is that we have a minister that, despite having certain powers available to him, declines to exercise those powers and make a decision. We have a minister that is weak. We have a minister that fails to exercise the discretionary powers that he is able to under an act.

As outlined by the shadow minister for immigration, Mr Morrison, in his speech on the second reading of this bill, on several occasions the minister has simply refused to use his discretionary powers and let the opportunity pass by him We have a government that knowingly and willingly dismantled the successful policy regime it inherited from the coalition. They had the issue under control and yet they chose to make policy changes and created the problems that we are faced with today.

This is a government that has well and truly lost its way when it comes to protecting Australia's borders. Notwithstanding the current bill, former Prime Minister Rudd and current Prime Minister Gillard have an appalling record, and their lack of strong, decisive or appropriate action continues to confirm that the Australian Labor Party is failing to protect Australia's borders.

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

I rise to speak to the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. After listening to Senator Cash's contribution, I am still unclear as to why the opposition are voting for this legislation. While I and the Greens have a very different reason for why we will not be supporting this legislation, the point was made very clearly by Senator Cash that the powers that the minister has spoken publicly about and that this bill would give him already exist within the current legislative framework. We know that he already has powers to ensure that people who hold convictions for serious criminal acts can be judged on that in terms of their character test when applying for permanent protection or permanent residency in Australia.

I struggle to see exactly why the opposition would support this bill, despite Senator Cash—with all due respect—spending the entire speech saying how the government does not need this particular piece of legislation. I agree: the government does not need this piece of legislation. I think it is simply for show. It is a knee-jerk reaction by the government of the day, in the aftermath of some pretty awful and horrific events in detention centres on Christmas Island and in Villawood, as to how to deal with the public concern about what was going on in immigration detention centres.

We know that the big problem within the current system is the length of time people are detained without access to information about their cases. They start to dwell, often leading to a deterioration of their mental health, of their feelings and, of course, of their hope that at some stage down the track their application process will be resolved.

The bill is unnecessary because the existing mechanisms within the act that enable visa refusal or cancellation on the basis of character are sufficient. They already exist. In the view of the UNHCR, the 1951 Refugee Convention provides the appropriate legal framework and parameters through which matters relating to a refugee's character should be considered by the country of asylum. Article 51 of the convention sets out an exhaustive list of grounds on which an asylum seeker can be refused protection. The Migration Act as its currently stands already enables the minister to delegate or to consider past and present criminal conduct in determining whether to exercise discretionary powers under the existing character test outlined in sections 501 and 500A.

Let's get some facts on the table. The laws already exist for the minister to do this. In the past four to five years the minister has used this particular section no more than three times. I take the point that Senator Cash made when she said that, under Minister Ruddock, some 500 applications for visas were cancelled. I think that probably says more about the government of the day and the minister—that is, the 'lock up the kids and throw away the key' minister, Philip Ruddock—than about whether the legislation is sufficient to deal with these issues.

The legislation is sufficient if you want to judge people's character based on their criminal history. We know that. People have been able to do that in the past. The minister could do that now. This legislation simply goes to punishing people—vulnerable people—twice over because of their situation. If somebody is in serious doubt of an individual's character or the minister does not believe that a person should be given permanent protection and residency in this country, the minister already has the power to make those decisions. The proposed amendments will impose another tier of punishment on a person in addition to the punishment imposed by the court.

Because we have an awful situation within the immigration detention system, because we have people acting out of pure frustration about their current circumstances, and because we have overcrowding and long-term detention—the detention of children; the detention of people behind barbed wire, including children, as we do at the moment with 300-odd people held on Christmas Island—this bill says that, regardless of what the court decides, the minister will make a second judgment. This bill will take the power away from the court and the minister will decide whether somebody, simply because of one minor offence, should be subjected to a lifetime of fear, uncertainty and anxiety. That is what this bill will do.

This is not a bill that should be introduced by a government that believes in the fundamental principles of law. This is not a bill that should be introduced by a government that understands the funda­mental principles of human rights. This is not a bill whose passage a government should be asking for if that government fundamentally believes in our principles and obligations under the refugee convention. This government wants to ship people off to Malaysia—expel vulnerable men, women and children to a country that has not signed the refugee convention and that cannot guarantee their rights. This government is doing everything it can to undermine Australia's obligations to the refugee convention.

Existing criminal law is adequate to deal with the criminal acts committed in immigration detention centres. I totally agree that the people responsible for the destruc­tion of property, the burning of buildings, the rioting and violence that we have seen in immigration detention centres need to feel the full force of the law. That is what the law is for; that is what the courts are for. Let them do their job. Since when should the immigration minister be above the courts? Since when should the immigration minister, simply because of the political will of the day and the knee-jerk jumping at the ghosts of John Howard and Philip Ruddock, think, 'Hang on a minute; I'm going to put in a law that says that my decision is going to be greater than the courts of this land'? That is what this legislation does. It does not follow that this piece of legislation would be upheld by a government that believes in the principle of justice and the principles of law. It is likely to hand down lifetime sentences that are absolutely disproportionate in terms of punishment for the offence committed.

The Australian Human Rights Commission submitted during the inquiry to this bill that:

… people involved in disturbances in immi­gration detention centres may currently be prosecuted, convicted and sentenced under the Criminal Code Act 1995.

Any additional punishment is incompatible with the principles of Australia's democratic justice system. During the Senate inquiry into this bill, not only did the government try and push it through and give us only an hour and a half to inquire into this legislation late on Thursday night in the middle of a Senate sitting, but they did not receive one supportive submission to this piece of legislation except their own submission from the bureaucratic department. No-one else believes that this is a good idea. Speak to the legal experts: no-one thinks that this is a good idea. It undermines our basic principles of justice. It says that because this government is jumping at the ghosts of John Howard and Philip Ruddock—and we can see why; we can see the opposition jumping up and saying, 'You're not tough enough'—we have this government saying, 'We are going to start giving punishment above that of the laws and courts in our land.'

This bill proposes amendments that would breach our international obligations. We know that, as outlined by Professor Jane McAdam from the University of New South Wales, the existing character test regime under sections 500A and 501 already breaches Australia's obligations under international law because the scope and matters that are to be considered in refusing to grant a visa exceed the exhaustive grounds permitted under article 1F of the 1951 refugee convention. We already have these laws, they already breach our obligations and this government wants to extend them even further without any justification, without using the existing laws thus far, all simply to grab a headline to say: 'You know what? We can be as tough as John Howard and Philip Ruddock were.' Bollocks.

A refugee who commits a crime in this country should feel the full force of the law. No-one is suggesting that they should not, but the current laws allow for the minister to use that, to understand that and not to grant a visa if that is the case. We simply do not need something that extends this beyond the laws that already exist.

The way in which this bill has been designed—the way it looks and the impact that it has on individuals—is discriminatory towards detainees. We know that the Law Council of Australia noted:

… the proposed amendments continue a legislative approach which treats people differently depending on their mode of arrival.

That is, of course, another breach of our international obligations. We should in this country, as other countries who are signatories to the refugee convention do, accept people's case for protection regardless of their mode of arrival. If somebody comes by boat, or if somebody comes by plane, the place from which they fled, their reasons for fleeing and their need for protection are not different simply because they came by boat rather than coming by plane.

This particular piece of legislation continues that abhorrent discrimination against people simply because of their mode of arrival—and I will tell you why. It is because people who arrive by boat in this country are automatically thrown into immigration detention. We know that the current process means that they are in immigration detention for longer. It is prolonged detention—indefinite detention for some, especially those who have arrived since 7 May. It actively discriminates against people who are in immigration detention and those people who have had to take the most desperate avenues to reach our country.

The amendments are solely for those in immigration detention, which dispropor­tionately affects those who have arrived by boat, who are immediately placed into immigration detention. The amendment is focused on deterring:

… detainees from engaging in disturbances in immigration detention, rather than the need to ensure all non-citizens arriving in Australia are of good character.

That is what the Australian Law Council said. The weight is not on whether people are of good character. The weight is on what happened to them, what they did and their behaviour while locked up for months and months and years on end. Of course that is going to disproportionately affect people who come here as asylum seekers and are immediately subject to our mandatory detention laws.

Do not believe for one second that this is about ensuring that we have people in this country of good character. It is absolutely not. It is about deterring behaviour that could simply be deterred if we did not have 6½ thousand people locked up in immigration detention centres in remote locations around the country and, of course, on Christmas Island. Amnesty International cites that failing the character test is not fair or reason­able punishment for criminal behaviour. Amnesty International further highlights that, unlike punishment in the criminal justice system, such as imprisonment, being denied a visa may have unquantifiable, ongoing, long-term consequences. Of course that is the case. Very vulnerable people who are subject to long-term detention, mental health deterioration, anxiety and confusion about their case do unfortunately do desperate things and take desperate measures.

The idea that anybody who is charged with any type of criminal activity, regardless of how big or small, should not be able to access the protection laws that our country has signed up to under the refugee conven­tion not just undermines our obligations but undermines our ethos as a country for a fair go. It says that, regardless of the circum­stance, we will automatically deny you protection simply because we lock you up and put you in a situation where you are so desperate that the only cry for help you can make is to sew your own lips together and cause disturbance—whatever the definition of that is—in the small, confined space that you have been locked up in for months and months.

This is not at all an honourable piece of legislation. These are very vulnerable people. These are very desperate people. I absolutely agree that if people are convicted of serious criminal acts then of course we need to be looking at their character. But the laws already exist for us to be able to do that. That is not what this piece of legislation is about. This legislation is saying that if you act in disturbance in an immigration detention centre, regardless of your personal circum­stance, regardless of how long you have been there and regardless of the lack of service provision and access to independent support and advice that you have—who cares?—we are not going to let you into our country. We are not going to give you the protection of the convention that for some reason Aust­ralia's signature still sits on.

This government seriously has to start thinking about what it means to be a signatory to the refugee convention if it is simply able to be waved about or waived depending upon the domestic needs of the government of the day. That is not what the refugee convention is about. That is not what signatories to the refugee convention should be showing. Australia can do better than that. Australia should be showing the way in our region as to what a serious business being a signatory to the refugee convention is. When we start playing with our laws and saying that one minister should be above the courts of our land, we have a problem. If the courts want to give somebody a serious conviction, that should, of course, be taken into con­sid­eration. That is what the current laws allow.

If we simply believe in this place that, regardless of what the courts say, the min­ister can automatically deny people per­man­ent protection or avenues to be able to apply for protection then why do we even bother to go to places like Malaysia to nego­tiate protection for individuals? We do not even know what that means. We totally under­mine it. We are trashing our reputation in the inter­national sphere because of laws like this which this government wants to introduce. We are trashing our obligations to the ref­ugee convention, and it makes it very, very difficult for countries like Australia to argue that others in our region should sign up to the refugee convention when we do not even prove or show what that obligation really takes: commitment to human rights, justice, fairness and, of course, the rule of law.

This is a terrible bill, and the Greens will not be supporting it. I think the government has to seriously consider how far it wants to go simply to undermine our basic principles of law and access to justice, the principles of a democratic justice system and, of course, our international obligations. It is an appalling piece of legislation and it should not proceed. (Time expired)

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I rise both to speak to the amendment of Senator Cash and the opposition and to sum up the government's position. Firstly I thank all honourable senators for their contributions to this second reading debate on the bill. I remind senators that the purpose of the Migration Amend­ment (Strengthening the Character Test and Other Provisions) Bill 2011 is to ensure that a visa applicant or holder will fail the character test should they be convicted of any offence committed while they were in immigration detention. The bill will also increase the maximum penalty for the manu­facture, possession, use or distribution of weapons by immigration detainees from three to five years imprisonment. I remind senators that this strengthening will provide a more significant disincentive for criminal behaviour inside our immigration detention centres now and in the future. I note from the contributions of both the opposition and the Greens that there does at least appear to be a unanimity of view that it is not okay for immigration detainees to destroy property, to start fires, to throw roof tiles at staff and so forth. Senator Hanson-Young herself spoke to this point, and on that basis I think that is something we can all agree on.

The Australian community expects non-citizens who seek to remain in Australia to be of good character. To meet this expec­tation the government must not only have the ability to act decisively and effectively to deal with criminal behaviour by people in immigration detention but also have the legislative basis to refuse to grant a visa or to cancel a visa for those non-citizens who are not of good character. Where the character test is failed, it would, however, remain a matter for the minister or the minister's delegate to consider the factors in relation to the nature of the conviction, any sentence applied and countervailing considerations before deciding whether to exercise the discretionary power under sections 501 and 500A of the Migration Act to refuse or cancel a visa. In other words, a determination that a person does not pass the character test under the new ground would enliven the discretion to refuse or cancel a visa but would not dictate the outcome of the exercise of the discretion.

There is a vitally important point here, and I could not help but reach the conclusion on the basis of Senator Hanson-Young's re­marks that it had been lost on the Greens. That is that the ministerial discretion exists only when considering the case of a person who has been convicted. I refer to the explanatory memorandum. It states very clearly:

The amendments to sections 501 and 500A have been drafted to ensure that, where applicable, they apply only to persons who have been convicted of an offence by a court. The amendments made to sections 501 and 500A would not apply to a person who is charged before a court with an offence or offences, and the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but has discharged the person without a conviction on that charge, or any of those charges. That is, there must be at least one conviction for the amendments to sections 501 and 500A to apply.

I think, Senator Hanson-Young, that, when one absorbs the import of that, much of your argument vanishes. You are right: it is not enough to accuse a detainee of making a disturbance. You are right: a minister is not above the courts of this land. You are right: it is a foundation principle of our legal system. It is a question of what is right and proper. I think that, when you absorb that critical point, you must by your own logic find yourself in support of this bill.

The amendments to the character provisions also do not change the existing arrangements relating to natural justice or review rights in relation to the character test. The measures are intended to send a strong and clear message—a message that those opposite have agreed with and a message that the Greens party and Senator Hanson-Young's contribution agree with. That message is this: the kind of unacceptable behaviour recently seen at immigration detention centres will not be tolerated by this government.

I turn to the opposition's amendment found on sheet 7100. In considering this, I make the point that this amendment has already failed in the House of Repre­sen­tatives. I trust it will do so here too, because this is an amendment that, amongst its many failings, seeks to introduce a test that is effectively impracticable. The oppo­sition have flagged an amendment which would amend section 501(7) so that all people who have ever had a conviction for any offence with a custodial sentence would have the character test enlivened.

There are some four million permanent and temporary visa holders and applicants to Australia each year. The amendment would mean that, for instance, somebody applying to visit Australia on a tourist visa who had been sentenced to a custodial sentence in their home jurisdiction, even if that were 40 years previously, would fail this character test proposed by the opposition. It would mean that every single tourist to this country, regardless of visa type, would then have to be considered by the department in that light. This of course would have a significant impact on the tourist industry, let alone the regulatory and administrative burden that the opposition flings so blasely at the Australian government.

The amendment would also apply to skilled workers coming to this country under the 457 visa program, so many employers would be affected through that, and student visas would also be affected. I would like to see the impact on processing times. A regulatory impact statement on the oppo­sition's amendment, I am sure, would bring tears to all our eyes. The opposition has not thought this through. That is why the amendment has failed the common-sense test in the House of Representatives and why I trust it will fail that same test here.

It is appropriate that, if you are in immigration detention, you have a very clear understanding of your obligations, because offences in immigration detention—even offences which do not attract a penalty of 12 months or more—involve damage to Com­monwealth property, risk to other detainees, risk to Commonwealth staff and risk to staff of service providers. We have seen all of this in recent times. They are serious offences and it is appropriate that this parliament and this government send a clear message about that sort of behaviour.

I table an addendum to the explanatory memorandum relating to the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. I thank the Senate and commend this bill to the Senate.

Question agreed to.

Bill read a second time.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I move coalition amendment (1) on sheet 7100:

(1)   Schedule 1, page 3 (after line 31), after item 4, insert:

4A Paragraphs 501(7)(b), (c) and (d)

Repeal the paragraphs, substitute:   (b)   the person has been sentenced to a term of imprisonment or periodic detention; or   (c)   the person has been convicted of an offence and the court orders the person to participate in:   (i)   a residential drug rehabilitation scheme; or   (ii)   a residential program for the mentally ill; or

4B Subsections 501(8) and (9)

Repeal the subsections.

[character test]

I listened carefully to the minister's speech, and one of the things the minister said about why the government is putting forward this bill is that it expects non-citizens who remain in Australia to remain of good character. I agree with that; the coalition agrees with that. However, what I would say to the minister in relation to that statement is: if you expect non-citizens who remain in Australia to remain of good character, why are you proposing a bill that only applies to certain non-citizens, and they are those non-citizens who are in immigration detention? The bill as it is currently drafted does not apply to all non-citizens; it only applies to a certain class of non-citizen.

The coalition can help you with that, as I have already outlined. The coalition's amendment will ensure that the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill to strengthen the provisions relating to general criminal conduct under the character test will apply to all persons who are not citizens, not just to those who are or should be held in detention. In other words, the amendment would actu­ally achieve what the government has stated that it wants to do, which is to ensure that all non-citizens who remain in Australia remain of good character. The amendment that the coalition puts forward would enable this same test to apply to those on one side of the fence, in immigration detention, as it would to those on the other side of the fence, not in immigration detention. If the government were of a mind to ensure that we had clear standards about acceptable conduct and behaviour—and the minister has stated that that is what the government does have—it would apply these provisions across the board by supporting the coalition's amendment.

In relation to the allegation that the opposition's amendment will cause chaos in the processing of tourist visas and deny access to subclass 976 visas provided through the electronic travel authority, or ETA as it is known, the first thing I would say to the minister in relation to his comments is this: please don't talk about processing times to those on this side of the chamber. The department is currently gridlocked due to the continuous arrival of boats. It simply, at this stage, does not have the resources to properly deal with the processing of most types of visas. Delays are being experienced, as we have heard in evidence at estimates hearings, across most visa categories. Why? Because of the govern­ment's failure to control Australia's borders. Turning specifically to the amend­ment the opposition has put forward, the allegation that it would cause a collapse of the electronic travel authority and would somehow cause chaos within the processing system is simply wrong.

The condition to deny a person access to the 976 electronic travel authority or ETA visa is specifically provided in the Migration Regulations. It is not provided in section 501 of the Migration Act, which the coalition's amendment specifically relates to. Regula­tions relating to the 976 ETA visa stipulate—and I suggest the minister read this—that regulation No. 8528 is a condition that must be imposed with respect to that visa. If you go to regulation 8528, it clearly sets out:

The holder must not have one or more criminal convictions, for which the sentence or sentences (whether served or not) are for a total period of 12 months duration or more, at the time of travel to, and entry into, Australia.

It is this document here, the regulation, that sets the bar of a 12-month custodial sentence for the ETA; it is not the Migration Act, which is what we are dealing with. They are two completely separate processes.

The coalition agrees that it is important to the national security of this country that we are made aware of any convictions prior to the person entering the country. I am very surprised at the minister's statement in relation to persons that are convicted of an offence with a sentence of less than 12 months. The implication of what the minister has said is that that makes them less of a threat to Australia. The coalition does not subscribe to that position. If you have been convicted of an offence carrying a custodial sentence of 12 months or less, quite possibly you are just as much a threat to Australia, and that is why we are moving these amendments.

We also need to bear in mind, in relation to the amendment put forward by the coalition, that—surprise, surprise—we are not the first country, and I would pre-empt that we will not be the last country, that has a requirement to notify of criminal convictions carrying sentences of less than 12 months. This is not a novel idea that is being put forward by the coalition. It is a standard requirement in China, India, Russia, Canada and the United States. If the minister actually wants to stand by the statement that he made that the government expects non-citizens who remain in Australia to remain of good character, supporting the coalition amendment would be a very good start.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I will seek to respond to some of the points made by Senator Cash. Firstly, Senator Cash, you are quite right. This bill does have a narrow goal, if I can put it in those terms, and that is to deal with questions pertaining to persons in detention. It is not seeking to deal with the much wider class of persons that can be described as non-citizens. That is deliberate on our part and it is our continuing intention that that is the appropriate way for this legislation to operate.

On the question of boat arrivals and the workload of the department, I guess I would simply make the point that we believe the bill that we are offering to the Senate is practicable. We think that the amendment you are proposing would have a number of consequences, as I have already outlined in my summation of the second reading debate, that would render this legislation gravely flawed.

With respect to section 8528, the government simply makes the point that legislation always overrides regulation. We think the phenomenon you described is in fact a strengthening rather than a weakening or a distraction of the legislation.

Finally, on your point of custodial sentences and our using the time-honoured test of 12 months or more for a custodial sentence, I simply make the point that that is commonly found across legislation. It has been commonly found across legislation for many years. It was the same standard that applied when the coalition was in office and when Philip Ruddock was the minister for immigration. We think it is an entirely sensible course of action to continue to use that standard.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

Very briefly, the bill does have a narrow goal; I absolutely agree with you. That is why the coalition has put forward its amendment. But having a narrow goal is clearly inconsistent with the statement I believe that you made to the Senate, which was that the government expects non-citizens who remain in Australia to remain of good character. The more precise statement should have been that the government expects a certain class of non-citizens who remain in Australia—

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government would make this point: we expect every person in Australia to be of good character. I point to the fact that this bill adds to the existing regulatory and legislative framework; it does not replace or subtract from the framework. What I mean by that is that we are, with this bill, pro­viding the government with additional legislative powers with respect to non-citizens who are detained, but that in no way changes the existing obligations, or rights for that matter, of non-citizens found throughout the country. The existing pantheon of rules, laws and regulations will continue to apply to those persons. We would say to all of them that we expect them to remain of good standing in this country.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I will briefly respond to the minister's comments on the custodial sentence of 12 months or more, the reason the government has adopted that definition of more than 12 months and the fact that it was the same under the former Howard government—in particular when Mr Ruddock was minister for immigration. I would merely state that you are right; it was. However, the fundamental difference, as I outlined in my speech during the second reading debate, was that Minister Ruddock took it upon himself to undertake and use the discretionary powers that were available to him in, I believe I stated, over 500 circum­stances, which is fundamentally, diamet­rically opposite to the use of the powers by ministers under a Labor government.

Question put:

That the amendment (Senator Cash's)be agreed to.

The Senate divided. [21:25]

(The Deputy President—Senator Parry)

Question negatived.

Bill agreed to.

Bill reported without amendments; report adopted.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I move:

That this bill be now read a third time.

Question put.

The Senate divided. [21:32]

(The Deputy President—Senator Parry)

Question agreed to.

Bill read a third time.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I rise to speak on the Mutual Assistance in Criminal Matters (Registration of Foreign Proceeds of Crime Orders) Amendment Bill 2011. The coalition supports the purpose of this bill, which is to address potential constitutional issues with Australia's current legislative framework for registering proceeds of crime orders. The coalition supports the aim of the amend­ments, which is to ensure that the framework for providing assistance to foreign countries and international tribunals in registering proceeds of crime orders issued by them continues to operate as intended.

It should be acknowledged that the Commonwealth Proceeds of Crime Act 2002 was introduced, and passed, under the former coalition government. The act provides a scheme to trace, restrain and confiscate the proceeds of crime against Commonwealth law. The act allows in some circumstances for it to be used to confiscate the proceeds of crime against foreign law or the proceeds of crime against state laws. The act also permits confiscated funds to be returned to the Australian community in an effort to prevent and reduce the harmful effects of crime in Australia.

The act was the result of a review which found that the inclusion of civil forfeiture at a federal level would vastly extend the capacity to recover funds from breaches of federal law. The coalition supports the policy of confiscation of assets and profit derived from crimes committed overseas. In this context, I regret that it is still necessary to raise the issue of the convicted terrorist David Hicks. Mr Hicks was convicted of a terrorism related crime on his own plea of guilty in the United States. His memoir Guantanamo: My Journey is estimated to have generated about $350,000 in earnings for Mr Hicks in its initial print run. This is a matter I have raised on numerous occasions in Senate estimates and I am mystified still that no action has been taken to ensure that Mr Hicks does not profit from activity that, on any objective assessment, was seriously criminal and, by his own admission, related to the support of terrorism. The only thing the government will say is that it has commenced an investigation into the applicability of the legislation for Mr Hicks's publication that details his support for, and participation in, a terrorist organisation.

Part 2-5 of the Proceeds of Crime Act provides for the making of a 'literary proceeds order' where a person has committed an indictable offence against either Australian or foreign law and the court is satisfied that the person has derived 'literary proceeds' in relation to the offence. The offence to which Hicks pleaded guilty under the Military Commissions Act of the United States clearly falls within the definition of 'foreign indictable offence' under the Proceeds of Crime Act. The failure of the government to pursue the matter is symptomatic of its slowness to act and its inability to make difficult decisions, preferring instead to brush an issue under the carpet until someone drags it out and confronts them with it. Even then, the government will prevaricate and delay. So I use the occasion of the second reading debate on this bill to once again call upon the government to take the action available to it against Hicks and, in particular, to call upon the Attorney-General to issue the instruction which he is enabled to issue under section 8 of the Director of Public Prosecutions Act to require the commencement of appropriate literary proceeds proceedings under the Proceeds of Crime Act.

Having said that, let me turn to some of the provisions of the bill currently before the Senate. Australia has a regime to permit cooperation with foreign countries in criminal matters, which includes the restraint and confiscation of benefits derived from foreign criminal offences where those assets are located in Australia. Part VI of the Mutual Assistance in Criminal Matters Act 1987 enables an Australian court to register and enforce orders issued by a foreign court. These foreign orders comprise restraining, confiscation and pecuniary penalty orders over property derived from serious criminal offences. Once a foreign order is registered in Australia, it is able to be enforced as though it were an Australian order made under the Proceeds of Crime Act. Provisions in the International Criminal Court Act 2002 and the International War Crimes Tribunals Act 1995 expand upon the regime in the Mutual Assistance Act and allow an Australian court to register and impose forfeiture orders issued by the International Criminal Court and designated international war crimes tribunals.

The need for this legislation arises from the High Court's decision in the case of International Finance Trust Company Ltd v New South Wales Crime Commission (2009). The court found provisions in the New South Wales proceeds of crime legislation which allowed for ex parte restraining orders to be invalid because they dictated to the New South Wales Supreme Court to a degree inconsistent with its status as a chapter 3 court under the Constitution. Under the New South Wales legislation the court had no discretion whether to hear from a person affected by the order, and there was no statutory provision available which allowed the person affected to challenge the making of the order.

The High Court's decision reinforced the principle that courts must be in a position to exercise control over the making or enforcement of proceeds of crime orders. Because there are similar mandatory provisions in the relevant Commonwealth legislation, there is an obvious need for the amendments proposed by this bill so that the Commonwealth legislative scheme does not fall foul of the High Court's decision. The amendments in this bill aim to ensure that the legislative regime providing a court with the power to register and enforce foreign orders continues to function as intended—that is, in conformity with what the High Court decided in the International Finance Trust Company case.

The bill will make technical but important amendments to the Mutual Assistance Act, the International Criminal Court Act and the International War Crimes Tribunal Act. The amendments will allow a court greater discretion when deciding whether a foreign order should be registered and enforced in Australia and whether or not to hear an application for registration on an ex parte basis. The amended provisions will require a court to register a foreign order unless it considers it would be contrary to the interests of justice to do so. In deciding whether registration of a foreign order is in the interests of justice, the court is to give due regard to the primary intention of the system. The bill will also insert an objects clause into subdivision A of part VI of the Mutual Assistance Act in order to clarify the intention of this system. The purpose of the subdivision is to allow Australia to give effect to foreign orders in circumstances where property related to serious foreign offences is located in Australia.

These amendments aim to bolster reciprocity as the basis of international crime cooperation. They aim to ensure Australia is able to provide the same level of assistance to other countries as we would expect of them. As I have foreshadowed, the amend­ments proposed by this bill are necessary and desirable. More than that, they are probably essential to the continued operation of the proceeds of crime regime as it applies to mutual assistance matters. Accordingly, they have the coalition's support.

Kate Lundy (ACT, Australian Labor Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

In the few minutes we have left I would like to take the opportunity to respond to Senator Brandis' comments about proceeds of crime action in relation to David Hicks. As Senator Brandis well knows, part 2 of the Proceeds of Crime Act 2002 enables action to be taken to prevent a person from earning profits by exploiting their criminal notoriety.

This can apply to crimes against foreign law if the benefit is derived in Australia or is transferred to Australia, and a decision to commence literary proceeds action under the Proceeds of Crime Act 2002 is at the discretion of the Commonwealth Director of Public Prosecutions following an investi­gation by the Australian Federal Police. The Australian Federal Police has given a range of material to the Commonwealth Director of Public Prosecutions for their consideration in this case and it would be inappropriate to comment on the likelihood of any future legal proceedings.

In general, it is appropriate to make a couple of general comments on this bill, including the fact that criminals have no respect for borders and they exploit new technologies to expand the parameters of their activities. Increasingly, the proceeds derived from a criminal enterprise are being moved offshore and hidden in other countries in an attempt to thwart law enforce­ment authorities in their investi­gations and prosecutions. In these situations, it is imperative that law enforcement authorities in different countries can cooperate with each other to register and enforce the proceeds of crime orders issued in one jurisdiction where the subject of the order is located in another.

The proposed amendments in this bill, as we have heard, will make sure that Australian authorities can continue to offer efficient and effective assistance to their foreign counterparts in enforcing proceeds of crime orders issued by foreign courts. This ensures that criminals cannot escape the consequences of their actions by hiding their illicit gains in Australia. These measures will allow Australian authorities to continue to assist in returning property to its rightful owners. It will also send a strong message of deterrence to potential criminals and where you have derived material gains from the commission of a criminal offence, law enforcement authorities will strip you of that benefit.

I commend the Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Amendment Bill 2011 to the Senate and I thank senators for their contribution.

Question agreed to.

Bill read a second time.

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

As no amendments to this bill have been circulated I shall call the minister to move the third reading, unless any senator requires that the bill be considered in Committee of the Whole.

Kate Lundy (ACT, Australian Labor Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

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

Order! It being almost 9.50 pm I propose the question:

That the Senate do now adjourn.

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Today, 4 July 2011, marks the end of the distinguished service of Air Chief Marshal Angus Houston in the Australian Defence Force, where he served for 41 years, the last six as Chief of the Defence Force.

The military has always been part of Angus's life, from his very early childhood which was spent on airbases in the United Kingdom where his father served as a Royal Air Force fighter pilot. Angus—or Allan, as his parents named him—was born in Ayrshire, Scotland, in 1947. Angus's efforts to join the RAF were thwarted by him simply being too tall, and this rejection was to be a life-changing event. At 20 years of age, and with less than $100 in his pocket, he headed for Australia.

After two years hard yakka on a sheep and wheat farm in Mukinbudin, experiencing floods, drought and penury, Cadet Air Crew Houston—by then and forever more known as Angus—was accepted into the RAAF, where he became a helicopter pilot. He never looked back. In 1980 Angus was awarded the Air Force Cross for his extraordinary skill as the pilot of an Iroquois helicopter during a maritime rescue in the most dangerous and difficult of conditions. The citation reads 'His display of outstanding skill, resolution and leadership undoubtedly provided inspiration for his crew in effecting this most difficult rescue.'

I think those words—outstanding skill, resolution and leadership—say much more about Angus Houston than just his endeavours on that shocking night back in 1979. He has shown those qualities, without fail, in every responsibility he has been asked to fulfil in the ADF. And let us not pretend this has always been easy. In 2002 it was Air Marshal Houston, the then Chief of Air Force, who was asked in his first appearance at a Senate estimates committee about whether he, as the Acting CDF, had informed the then defence minister there was no evidence to support the children overboard claims. I remember that afternoon well, as I asked Angus those questions. No-one should be surprised that, regardless of the consequences, he answered forthrightly and honestly. The headline 'Houston, we have a problem' was inevitable. The no-nonsense approach that day was typical of Angus Houston, who has earned and deserves such a strong reputation for his integrity and decency.

Tonight I would also like to acknowledge Angus's concern and compassion for the men and women of the ADF he has led. This has been clear to all—unfortunately far too often—when we have lost soldiers, killed in action in Afghanistan. The pain for families on their loss is searing, but Angus has always provided comfort to grieving families and grieving soldiers. He knows this to be a critically important and heavy responsibility for our nation's military leader.

In any organisation as large and as complex as the ADF, things will go wrong, and such problems will end up on the desk of the CDF. Angus has the highest standards and the highest expectations of our defence personnel, but, to be fair, they have not always been met. Angus Houston has driven major cultural changes in the ADF. He has not tolerated bullying, bastardisation or sexual harassment. I am sure he would have preferred to have seen current inquiries, such as those into HMAS Success and ADFA, concluded before his retirement, but he can be absolutely confident that his leadership will result in enduring cultural change for the better in the ADF. His commitment to the men and women of the ADF has always impressed me—even his use of language. He would always say 'our people'. He had no higher priority, and everybody knew it.

Angus has won very wide respect within and without the ADF, from all sides of politics and in the international community, where he has been a formidable advocate for Australia's interests. I have seen firsthand how influential and respected Angus was in international forums, particularly with our partners in the International Security Assis­tance Force in Afghanistan. I thank him for that strong and effective advocacy. I would also like to acknowledge his close working relationship with secretaries of the Depart­ment of Defence and other senior Australian public servants that he worked with as CDF. He respected the Defence diarchy and was committed to making it work. I know too, of course—it goes without question—that he had the absolute respect of all three services.

At a personal level, as Minister for Defence, I always appreciated his wise counsel and his confidences on so many very sensitive matters. I simply say tonight to Angus: I sincerely thank you for your help, support and steadfastness to me and my staff when I was defence minister. It was a real pleasure to work closely with you.

Angus's story is a unique Australian story. I think Australia, his adopted nation, owes him a great debt of gratitude. He has done his country proud. I also thank his family, particularly his wife, Liz, for all her support over so many years of service. I sincerely hope that Angus and Liz will now have time to do all the things together that were never possible over the past 41 years.

Finally, I wish General David Hurley, the new CDF, as well as Air Marshal Mark Binskin, the new Vice Chief of the Defence Force, and all the new chiefs well for the future. General Hurley has big shoes to fill, but I have total confidence that he too will serve with great distinction as Chief of the Defence Force.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

Two weeks ago I tabled and then spoke to my palliative care petition, which was signed by more than 4,000 Australians who care about palliative care. Later this week, I intend to table petitions with more signatories. Tonight, I want to speak about the palliative care service in South Brisbane that the Queensland state government is going to close down. In fact, the palliative care service at Canossa hospital would already have been closed but for people power in Queensland and—imagine this—the incompetence of the Queensland government. They could not even get their act together to achieve one of the savings they claimed to so desperately need to pay off the cost of the Queensland Health payroll mess. They hope to save a miserable $1.8 million by closing down the publicly funded beds at Canossa Private Hospital in South Brisbane.

The South Brisbane area currently has two level 3 palliative care services. Level 3 is the highest level of palliative care service there is. These services are at the St Vincent hospice service, which has 30 beds, 18 of which are public, and the Metro South Palliative Care Service, which currently has seven publicly funded beds located at Canossa Private Hospital. Both these services provide high-quality care and services, and both are working to full capacity.

In the June budget, the Queensland state government announced 10 new palliative care beds for the QEII Jubilee Hospital, but they forgot to mention that the hospital has not been finished yet and the beds are not, in fact, new beds; they simply replace the publicly funded palliative care beds at Canossa Private Hospital, which currently operates and has patients. The beds announced in the budget must be additional beds if the government is to call them 'new beds', not beds taken away from another service.

For the Labor state government to even contemplate taking these beds away from the Canossa Private Hospital is bewildering to say the least, because of what this hospital has to offer. Patients of Canossa palliative care unit—people who are terminally ill—and their families and friends, cannot praise enough the level of care that it provides. These patients know what they are talking about because they have had very considerable experience within the hospital system in all its incarnations.

Canossa provides a peaceful, caring and serene environment and a high level of care for its patients. Patients say that the staff are simply wonderful. Staff are compassionate because they have a deep understanding of what patients and their families are going through. That is what good palliative care means—well trained and understanding staff. It is worth remembering that it is not only the patients who need the physical, spiritual and emotional support but also family members. That is what good palliative care means—a holistic approach to the impending death of a loved one. Otherwise family members are left to process not only their loss but also the way in which their loved one died.

It is not only exemplary care that Canossa Private Hospital provides; it also provides excellent training for palliative care medical specialists—another must for good palliative care—and can provide training for palliative care nurses and other professionals involved in offering palliative care. These are all absolute necessities for good, holistic palliative care.

Nationally, there is a critical shortage of palliative care medical specialists, yet the registrar training program at Canossa is the largest registrar training program in Queensland and provides doctors with vitally important skills in the palliative care area. These are much needed skills which will cease to be taught at Canossa if the state Labor government has its way. Research has shown that medical specialists treat the underlying condition but often overlook taking care of the palliative care needs of a patient, such as ensuring the most basic of things like managing pain appropriately or managing the support needed by a patient's family.

A strategy paper released earlier this year by the Australian Pain Management Association made the point that one-third of older Australians live in chronic pain. It identified huge gaps in knowledge and the services available to Australians living with pain. Amongst those gaps was the inadequate pain relief for end-of-life care.

We must remember that palliative care is different to acute care. It is not uncommon to see palliative care patients, sometimes in chronic pain, waiting for hours in accident and emergency wards in Queensland hospitals and then being admitted to an acute ward that does not have the skill set to deal with palliative care patients.

We have a growing and an ageing population. In Queensland, the total population is just over 4½ million and the Metro South Health Service District, which Canossa Private Hospital falls under, has a catchment population of 1.34 million people. As I said, not only is our population growing, but it is ageing. It is therefore inconceivable that the Queensland government plans to take away these desperately needed palliative care beds from South Brisbane. Something is seriously wrong with both our federal and state health systems and our priorities if I have to make this argument.

Last year a petition was tabled in the Queensland parliament and a rally was held objecting to the closure of the public palliative care beds at Canossa hospital. I refer to the people power I spoke about earlier. That was partly the reason for a delay to the closure but, as I said, the other reason for the delay was the ineptitude of the Queensland government, which could not get anything else happening.

I urge the Queensland state government to listen to the people and to provide recurrent funding to Canossa Private Hospital for these palliative care beds. Across Australia we do not have enough palliative care beds. In Brisbane's Metro South area we do not have enough palliative care beds.

There was a paper released last year by Palliative Care Victoria, which gave a short summary of the growing body of evidence on the benefits of palliative care. It outlined a study conducted in 2008 of 33 high quality systematic literature reviews and 89 intervention studies and concluded that there is strong to moderate evidence that palliative care improves important aspects of end-of-life care, such as reducing a patient's distressing symptoms and relieving some of the burden on caregivers. Any of us can put ourselves in the situation and think about what it actually means when we talk about relieving the distressing symptoms of a terminally ill person or assisting their care givers. I think that would give us a better picture of what we have to do here.

Studies of a range of palliative care interventions from Europe, Canada, Australia and the US demonstrate that good palliative care leads to consistent improve­ment in pain and other symptoms, to consistent improvement in patient and family satisfaction, and to the likelihood that the patient will receive care, and die, in the place of their choice—usually, and I think quite unsurprisingly, their home. That is not a common occurrence right now.

The evidence that palliative care delivers quality-of-life benefits and better use of limited health resources provides a strong case for increased funding of palliative care as an integral part of our health and aged care services; not the miserable and counterproductive approach of the Queensland government.

In closing, I urge the Queensland state government to keep the publicly funded beds at Canossa Private Hospital open. They should not be shut down.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise this evening to place on record and to proudly boast of the support that this federal government has provided to people in the Northern Territory when it comes to the provision of health services.

On 9 June this year I was delighted to accompany Prime Minister Julia Gillard, my Territorian colleague the Minister for Indigenous Health and minister for other areas, Warren Snowdon, the Chief Minister of the Northern Territory, Paul Henderson, and the Northern Territory Minister for Health, Kon Vatskalis, in opening a wonderful new medical teaching and education centre in Darwin. Based at Charles Darwin University and operated in partnership with South Australia's Flinders University, this centre will for the first time enable students to undertake an entire medical degree in the Northern Territory.

The centre will play a crucial role in providing training support for medical students during their first two years under the new Flinders University Northern Territory Medical Program. The Northern Territory Medical Program has been made possible by capital funding from this government of $27.8 million over three years, $14 million of which will fund the new teaching and education centre. A further $6.6 million will be provided over the next four years for operational costs. The Northern Territory government is putting another $2.2 million a year towards the recurrent costs of training these doctors and pharmacists. This program is helping to train more Indigenous doctors to work in Aboriginal communities in the Northern Territory, which suffer some of the worst GP medical workforce shortages in the country.

What is absolutely fantastic about this new facility is that we can now grow our own doctors in the Northern Territory. Students will no longer have to leave the Territory and their homes to become a doctor. For many kids in school aspiring to be doctors, the practicalities have become much less challenging. As well as being great for future students, by association, this is a great step forward for the future of health services in the Northern Territory. I have heard the Chief Minister champion many times—and with his generosity I will reiterate his sentiments this evening—the fact that, for the very first time in the Northern Territory, whether you are Indigenous or non-Indigenous, you can now go to preschool, primary school, secondary school and then university and come out as a qualified doctor. For us that is a great step forward when it comes to the provision of health services in the Territory.

Research has long told us that the quality of a training and educational experience is very important in determining future locational choice. What this means, we would hope, is that a doctor trained in the Territory is much more likely to remain and practise in the Territory. And we desperately need more of them. Moreover, the new centre and its medical program is going to have a focus on Indigenous health and the needs of Indigenous communities. It is already showing dividends for the Northern Territory. Currently, only 1.6 per cent of the national health workforce is made up of Indigenous people. When the NT Medical Program commenced this year, 24 students began the course, of whom 10 are Indigen­ous, with enrolments increasing to 40 per year in the future.

This facility, and its focused program, will make a real difference to the way in which we deliver health care across the Northern Territory. Remote Australia is sorely in need of more doctors and healthcare workers. I am quite confident that a good proportion of the 24 students currently enrolled will end up working in the Northern Territory, and hopefully in the bush, where they are most needed. I have now had the pleasure of meeting these students twice—on the very first day they started this course in February and, of course, back in June when we opened the physical location in which they now continue their course. Already, several of them have indicated to me their desire to stay in the Northern Territory once they have completed their training. This is the start of making a tremendous difference to health outcomes for Aboriginal people in the Northern Territory.

Even if not all of the students end up working in the bush or going to remote communities, it will be just as valuable if they choose to work in Darwin, Katherine or Alice Springs. The Royal Darwin Hospital's Emergency Department is the busiest in the country, and this is largely because of a shortage of GP services in Darwin and Palmerston. This new facility at Charles Darwin University will help take pressure off Territory hospitals by producing more GPs for the Territory.

I also add that the technology in this new centre is state-of-the-art. Our first-year students enrolled in this combined course with Flinders University watch and participate in lectures given at Flinders University with 100 or so other first-year students by teleconferencing over the internet. They now have the capacity to watch what is happening at a hospital in Adelaide or at Flinders University via the internet techniques and the state-of-the-art technology that has been put into this new medical facility. So it is not only forging a path when it comes to training more Indigenous and non-Indigenous doctors for the Northern Territory but it is also state-of-the-art when it comes to tele-health, e-health and internet service facilities for educational provision.

Also, we have the Palmerston Superclinic, another initiative of this government that is already starting to take pressure off our hospital. The Palmerston Superclinic will be a training centre for students who are at the medical school at CDU. The general practice side of the superclinic places an emphasis on providing the best care to the patients as well as teaching the new generation of doctors. It provides fantastic hands-on learning oppor­tunities to medical students in a clinical environment, and an incentive to studying, training and ultimately working in the Territory.

Of course, if the opposition had their way, there would be no superclinic in Palmerston and there would be no funding for the dedicated placements in regional and remote Australia because they campaigned against that at the last election. This silly policy decision by the opposition would have negatively impacted the Northern Territory for generations. In fact, one of the reasons we are struggling for doctors today is that the Howard government capped the number of places across the country for students to study medicine. But this government's national health reform ensures doctors, nurses and allied health professionals are trained and equipped to work in areas where they are most needed. This new facility is an important part of our aspiration to train 6,000 more doctors in Australia.

The Gillard Labor government is serious about investing in health, particularly in the bush. The Northern Territory got a further $150 million surcharge in health infra­structure, a massive boost that will not only provide much needed health infrastructure but also have the added benefit of stimu­lating the local economy and creating jobs. Through the Health and Hospitals Fund, the federal government is providing $70 million to go towards a hospital for Palmerston, with the Northern Territory government providing the additional $40 million. Not only will the Palmerston hospital reduce patient waiting times, encourage patients to get treatment and reduce the number of hospital admis­sions but it will also focus on improving Indigenous health. The Palmerston hospital will be tailored to meet the needs of people in the Top End, including culturally appropriate services and the capacity to train Aboriginal support workers as well as medical, nursing and allied health staff.

Of course, the rest of the Territory has not been forgotten either. From the health infrastructure surcharge we will see $50.29 million invested in seven new primary healthcare clinics in remote communities: at Robinson River, at Ngukurr, at Canteen Creek, at Numbulwar, at Elliott, at Galiwinku and at Ntaria—a massive injection for the provision of health services for Indigenous people in those communities. Also included in this funding are four upgrades to existing clinics at Titjikala, Papunya, Maningrida and Docker River. Laynhapuy Homelands Association will receive a $623,000 grant out of the Health and Hospitals Fund to build new health facilities in three East Arnhem communities.

These investments in health across the territory are crucial to working towards closing the gap on Indigenous disadvantage. By educating and training Territory doctors in Territory schools and our own Territory university medical facility, we will be growing our own much-needed medical workforce, combined with the injection of capital funds to ensure that those remote communities in the Northern Territory have the best equipped and most modern clinics they can get access to. We are uniquely placed to start to tackle the health challenges in the Northern Territory and commit to truly closing that gap.

Kate Lundy (ACT, Australian Labor Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

Congratulations on your election to your new role, Mr Deputy President. Since the Senate debate on 16 June on the Defence Force Retirement and Death Benefits Amendment (Fair Indexation) Bill, my constituents and those of senators in other states have expressed frustration and anger at the bill's failure. I understand this. Their indexation campaign has been a long one, and I have worked over the years to help promote it.

The reasons for the bill's failure were, firstly, the present budget situation and the need to return to a surplus by 2012-13; and, secondly, that the bill itself was so flawed. I took part in the debate on 16 June to point out some of the problems of this bill and why I was voting against it. In summary, this bill did not provide a sustainable, fair and funded solution to the inadequacy of CPI indexation. Unfortunately a lot of misinformation has since been circulated, either from ignorance or malice. One of these myths is that before the last election I and the Labor Party had promised to vote for this bill.

The facts are that in June last year the opposition put out a press release announc­ing that a coalition government would index DFRDB superannuation pensions by the same factors as used for aged pensions. This indexation would include a wage related or MTAWE factor, which the coalition government had so strenuously opposed throughout its 11 years of government. However, before this announcement the then Minister for Finance and Deregulation had announced that our government, the Labor government, had accepted the Matthews report and its recommendations. In essence the Matthews report recommended that the method of indexation for Commonwealth defence and civilian pensions should remain indexed by CPI alone, unless:

… a robust index which reflects the price inflation experience of superannuants better than the CPI becomes available in the future.

So at the pre-election meetings last year my colleagues and I were bound by the terms of the Matthews report and, of course, we were criticised by some for this stand. In a pre-election meeting in Canberra organised by SCOA and DFWA on 16 August last year, specifically on the topic of indexation, I acknowledged the government's acceptance of the Matthews report and I said:

And so my work and that of my colleagues has been to find a way to use the Matthews report to still achieve our basic aim of fair retirement incomes for all ComSuper and Defence superannuants.

Firstly, recommendation 4 of the Matthews report gives us the green light to implement a new and fair indexation method. The shortcomings of the CPI alone as a measure of the cost of living have been acknowledged—even by Matthews! The government in introducing its new index for the aged pension (the PBLCI—Pensioner and Bene­ficiary Living Cost Index) acknowledged this also, so it is not a point of argument.

I also said at that pre-election meeting:

I do not consider, as the coalition does, that a changed indexation applying to only one section of defence pensions is a fair solution. Of course they deserve it, and of course we owe a debt to those who have served Australia, but we should not seek to water down this campaign, or to divide those involved, by choosing to benefit only one group and not the others. I agree with David Jamison and the DFWA that this political football with veterans should stop.

At this same pre-election meeting Senator Humphries admitted that the coalition had no plans to extend the indexation provisions to other similarly disadvantaged groups, such as the over 7,200 Military Superannuation and Benefits Scheme members or those in the CSS or PSS schemes. I thought it fairly ironic to see that Senator Nick Minchin, who throughout the 11 years of the Howard government so vigorously opposed any change whatsoever to the indexation of military and civilian pensions, was on 16 June paired on the side of supporting the private member's DFRDB indexation bill.

As I have noted, I have supported the campaign to improve the indexation factors applying to all Commonwealth military and civilian pensions and have sought ideas on how to achieve this within the terms of the Labor government policies. This has included setting up a campaign section on my website. Through this website we have been able to gather information and ideas, to compile some case histories and case studies, and to gauge major areas of need, such as those on the lower pensions. I thank contributors who have made constructive suggestions and comments and those who have raised legitimate criticisms and aired their frustrations.

Unfortunately, because of recent inappropriate, inaccurate and abusive comments which unfairly reflect on many passionate and constructive advocates for fair indexation, I have decided to close this comments section for the time being. Of course, I could have filtered out the abusive comments, but that would bring accusations of censorship. Those interested in the history of the campaign to date can still access it on the website, and comments can still reach me by mail or email.

Together with many other senators and members, I continue to seek ways to improve the superannuation outcomes for those on Commonwealth, military and civilian pen­sions. Our work in persuading our colleagues of the merits and necessity for this action has, I think, been hampered by a daily barrage of abusive, sometimes racist and inaccurate emails apparently sent to all senators and members as well as staff. This is counterproductive to the campaign, and it has been recognised by the DFWA, who have apologised and disassociated their organisation from such action.

We need to remember that the Labor government, in so successfully tackling the impact of the global financial crisis, took major initiatives to help those on the lowest incomes, and these were welcomed by the superannuants organisations. They partic­ularly noted the benefits, such as the increase in the low-income tax offset, the increase in the tax-free threshold for low-income earners and the 50 per cent tax discount on interest on savings and deposits of up to $1,000. Those on ComSuper and Defence pensions, like others in the community, benefited from the economic stimulus plan and received either the $900 tax bonus payment or the earlier Economic Security Strategy payments to pensioners and carers of $1,400 for singles or $2,100 for couples. They have shared the benefits of the Labor government's investments in health reform and aged care services. Australians in general, including those on Commonwealth defence and civilian pensions, would not have fared so well under a coalition government and its cuts.

That said, we recognise there is still more to do. That the CPI no longer provides fair indexation is no longer in dispute, and I have sought advice on the development of a new analytical living cost index, or ALCI, as foreshadowed in the Matthews review, to reflect more accurately the cost of living of military and civilian superannuants, including the DFRDB recipients to whom this bill would have applied.

I will continue to consult and to work with representative organisations such as DRWA, SCOA and the peak body, ACPSRO, to whom I am indebted for ongoing advice. A priority of my advocacy within government will be to make the case for recognition of specific cost of living impacts on Commonwealth defence and civilian superannuants and to alleviate the tax burden of those on the lowest incomes. This is a campaign I feel very strongly about, and I commend this issue to all of my colleagues and believe that the campaign is at its best when it is bipartisan in its character.

Senate adjourned at 22 : 26

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

asked the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Minister representing the Minister for School Education, Early Childhood and Youth and Minister representing the Minister for Employment Participation and Childcare and the Minister for Indigenous Employment and Economic Development and the Minister for Sport, upon notice, on 29 November 2010:

Since 14 September 2010:

(1) Do the Minister and Parliamentary Secretaries have access to a departmental credit card; if so, can a copy be provided of all bank statements.

(2) (a) How many mobile devices are provided to the Minister's office; and (b) what is the total spend on mobile devices for each office to date.

(3) At what level is each staff member employed in the office.

(4) What has been the total cost of travel for the Minister and Parliamentary Secretaries.

(5) What has been the total travel for all staff, by office.

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

The answer to the honourable senator's question is as follows:

(1) The Minister and the Parliamentary Secretary are not issued with departmental credit cards.

(2) (a) The following mobile devices have been assigned to the Minister and ministerial staff since 14 September 2010:

Ministerial Office   Mobile phones, blackberries and data cards

* Mobile devices provided by the Department of Finance and Deregulation

** Mobile devices provided prior to 14 September 2010

# The Department of Prime Minister and Cabinet has not issued any mobile phones, blackberries and data cards

(b) Total spend on mobile devices for each office as per the Telstra and Optus billing period between September and November 2010 is as follows:

(3) The employment of staff under the Members of Parliament (Staff) Act 1984 is administered by the Department of Finance and Deregulation. On 19 October 2010, the Department of Finance and Deregulation tabled with the Senate F&PA Committee, Government Personal positions as at 1 October 2010.

(4) The costs of official travel by Ministers, Parliamentary Secretaries and accompanying staff employed under the Members of Parliament (Staff) Act 1984 are largely paid by the Department of Finance and Deregulation. As such, with the exception of those costs listed below, the information sought will be tabled by the Special Minister of State in the last sitting week of June 2011 in his six-monthly report on Parliamentarians Travel paid by the Department of Finance and Deregulation.

The total cost of short-term transport (e.g. hire cars, taxis) since between September and November 2010 was:

(5) The Special Minister of State will respond on behalf of other ministers.

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

asked the Minister for Tertiary Education, Skills, Jobs and Workplace Relations , upon notice, on 10 February 2011:

What is the total cost of media monitoring services for the department, its agencies and the Minister's office (listed separately) for each financial year since 2007-08.

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

The answer to the honourable senator's question is as follows:

Figures are GST inclusive.

Portfolio agencies and ministerial offices use the main DEEWR service but pay for any special orders placed (such as transcripts or video files) or additional services (such as subscription to services such as Meltwater or AAP wire services). The amounts for the additional orders and services are listed above by minister and agency.

* Includes former DEST, former DEWR and then DEEWR from December 2007.

**Office of the Workplace Ombudsman became the Fair Work Ombudsman on 1 July 2009.

***FWA came into existence on 1 July 2009

**** Paid for a 2 year subscription to online/internet monitoring service – hence no cost recorded for the subsequent year.

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

asked the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, upon notice, on 10 February 2011:

Can a list be provided detailing:

(a) the internet domain names registered by the department, related statutory bodies or agents on their behalf;

(b) the cost of designing and building each site; and

(c) the cost of maintaining each site (broken down by year since establishment).

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

The answer to the honourable senator's question is as follows:

Attachment A contains a list of domain names that represent active websites used by the department, related statutory bodies or agents on the department's behalf. A number of additional domain names have been registered to protect the trademarks held by the department.

The majority of departmental websites are developed in-house using existing staff from program areas, communication and IT teams from across the department. The department often uses in-house resources to develop websites for its statutory bodies and agencies, consistent with APS guidelines. In some cases elements of production of a website may be outsourced to support in-house activities. The department does not attribute costs of the various activities associated with the production of each website to that particular website.

Maintenance of websites is routinely performed using in-house resources, contracted service providers or a combination of both. The department does not attribute costs of the various activities associated with the ongoing content development and maintenance of each website.

Attachment A

List of DEEWR domain names for active websites.

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

asked the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, upon notice, on 27 April 2011:

(1)   What is the total number of staff currently employed.

(2)   What is the total number of staff with a disability currently employed.

(3)   What policies or programs are in place to encourage the recruitment of people with a disability.

(4)   What retention strategies are in place for people with a disability.

(5)   What career pathways or plans are on offer for people with a disability; if none, why.

(6)   Are there any specific targets for recruitment and retention; if not, why not.

(7)   What policies, programs or services are there to support staff with a disability.

(8)   Can details be provided of any policies, programs, services or plans currently under development within the department and its agencies, concerning the employment of people with a disability.

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

The answer to the honourable senator's question is as follows:

(1)   As at 30 April 2011, DEEWR employed 5472 staff.

(2)   As at 30 April 2011, 147 who disclosed a disability.

(3)   DEEWR's existing recruitment programs have been effective in attracting employees with disabilities. For example, the department's annual graduate intake has been successful in attracting graduates with disability from local universities. In addition the department has continued to participate in the 'Stepping Into Program" facilitated by the Australian Network on Disability (AND).

The department is also developing a pilot traineeship program for people with disability. Participants will be engaged under the APS Special Measures Circular utilising Disability Employment Service providers.

(4)   DEEWR has a range of supports in place for employees with a disability. Through our reasonable adjustment policy, DEEWR ensures that all new employees and existing employees who return to work after injury or illness receive the equipment (including assistive technology) they need to support them in the workplace. This also extends to modifying their physical environment to suit their individual circumstances.

More generally, DEEWR promotes a supportive environment for employees with disability. For example the department has a Disability Employee Network supported by DEEWR's Disability Champion, Mr John Kovacic, Deputy Secretary, Workplace Relations.

To increase disability confidence and awareness in the department, disability awareness sessions have been delivered for managers. Future additional sessions will focus on Mental Health and Workforce Wellbeing.

DEEWR also raises awareness by celebrating significant events focusing on disability. For example DEEWR celebrated the International Day for People with Disability by inviting some prominent people with disability to share their inspiring stories with employees, and hosting an awareness forum together with disability support agencies such as Vision Australia, Better Hearing Australia and members of the Disability Employment Network.

(5)   By successfully removing barriers for people with disability, DEEWR ensures that people with disability can fully participate in the workplace. This includes working with their managers to develop individual performance and development plans to access training and other development opportunities to achieve their career aspirations.

(6)   DEEWR's Disability Employment Plan 2009 – 2012 includes a target of 10% average annual growth in the number of employees with disability as a proportion of total employees.

(7)   DEEWR has the following specific policies to support staff with a disability:

a. Reasonable Adjustment Policy

b. Reasonable Adjustment Funding Policy

c. Rehabilitation and Return to Work Policy

d. IT Support Processes for Assistive Technology

DEEWR has the following specific programs to support staff with a disability:

a. DEEWR Graduate Program

b. Participation in the Australian Network on Disability (AND) 'Stepping into' Program

DEEWR has the following specific services to support staff with a disability

a. Disability Coordination Unit – The unit provides centralised support for staff with disability, their colleagues and managers, and ensure all DEEWR's workplace policies support employees with disability.

b. Disability Employee Network – The Network offers peer support, helps to raise disability confidence, and provides a voice for employees with disability in the department.

c. DEEWR's Disability Champion – Champions our commitment to employees with disability at our most senior forums.

d. DEEWR Disability Portal – Provides consolidated information for staff with disability, managers and colleagues.

e. DEEWR's Gold membership of the Australian Network on Disability (AND) – provides access to key services and professional support.

f. Access to DEEWR's Equity and Diversity Officer Network.

g. Access to Employee Assistance Program (EAP).

(8)   DEEWR is currently developing a pilot traineeship program for people with disability in consultation with Work Force Australia (WFA). The pilot is expected to commence in mid 2011.

DEEWR is also developing an online disability learning module as part of the department's onboarding process. The module is designed for all employees new to the department and will continue to raise disability awareness in DEEWR.

DEEWR will continue to work in consultation with the Australian Public Service Commission to share ways of improving attraction and retention of people with disability.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

asked the Minister representing the Minister for Climate Change and Energy Efficiency, upon notice, on 26 May 2011:

With reference to the Australian delegation to the United Nations Framework Convention on Climate Change to be held in Durban, South Africa, in December 2011:

(1) What is the estimated cost of:

(a) airfares;

(b) accommodation;

(c) travel allowance; and

(d) any other items.

(2) How many officers and ministers will attend.

(3) How many of the delegation will fly:

(a) first class;

(b) business class;

(c) premium economy; and

(d) economy or equivalent.

Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Link to this | Hansard source

The Minister for Climate Change and Energy Efficiency has provided the following answer to the honourable senator's question:

With reference to the Australian delegation to the United Nations Framework Convention on Climate Change to be held in Durban, South Africa, in December 2011:

(1) (a) The estimated cost of airfares is not known, as the delegation has not yet been determined.

(b) The estimated cost of accommodation is not known, as the delegation has not yet been determined.

Given the limited accommodation available in Durban, the Department of Climate Change and Energy Efficiency has entered into a contract to secure appropriate accommodation well in advance of the 17th Conference of the Parties of the United Nations Framework Convention on Climate Change (COP17) for the period of the conference (28 November – 9 December 2011) and for associated pre-sessional preparatory meetings in the days leading up to the conference. A preliminary estimate of $245,104.60 is based on quotes provided by a COP17 accommodation service provider in January 2011.

This full amount has not been paid, and the estimated cost will be revised closer to the conference once it is clearer what the composition of the delegation will be.

(c) The estimated cost of travel allowance is not known, as the delegation has not yet been determined.

(d) The estimated cost of any other items is not known, as the delegation has not yet been determined.

(2) It is not yet known how many officers and ministers will attend, as the delegation has not yet been determined.

(3) Please refer to the response to part (1) (a) above.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

asked the Minister representing the Prime Minister in the Senate, upon notice, on 30 May 2011:

(1) Since 21 August 2010, have there been any meetings of Cabinet, the National Security Committee, the Expenditure Review Committee and the Multi Party Committee on Climate Change; if so, for each meeting can the following be provided: (a) who met i.e. Cabinet or which committee; (b) who attended the meeting; and (c) did anyone deputise for any attendee; if so: (i) who deputised, and (ii) for whom.

(2) Pursuant to agreements reached following the federal election in 2010 have there been any meetings between the Prime Minister and Senator Brown, Mr Windsor, and Mr Oakeshott; if so, for each meeting can the following be provided: (a) the date of the meeting; and (b) who attended.

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

The Prime Minister has provided the following answer to the honourable senator's question:

I am advised that:

(1) Yes. In the period 21 August 2010 to 20 June 2011, the following number of meetings have occurred (current as at 20 June 2011):

It is not normal practice to discuss the details of Cabinet or Cabinet committee meetings.

The Multi-Party Climate Change Committee is not a Cabinet committee. The details relating to MPCCC meetings are publicly available at:

http://www.climatechange.gov.au/government/initiatives/multi-party-committee.aspx.

(2) As the Agreements provide, the Prime Minister meets with the Leader of the Greens, and with the three Independent Members of Parliament who have signed agreements with the Government, every sitting week, with less frequent meetings occurring in non-sitting periods.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

asked the Minister for Innovation, Industry, Science and Research, upon notice, on 31 May 2011:

With reference to issues arising between Mr Peter John Wilkshire and IP Australia and given that the Minister states 'an internal review was conducted by the Director General of IP Australia' in correspondence to the Parliamentary Secretary for Agriculture, Fisheries and Forestry (Dr Kelly) on 17 January 2011:

(1) Was the inquiry formal or informal.

(2) Was the inquiry and its findings ever committed to paper and/or in writing.

(3) How was the inquiry conducted.

(4) With whom did the Director General discuss the matter during the inquiry.

(5) From what sources did the Director General glean his information and who was interviewed.

(6) To whom did the Director General report his findings.

(7) Can a full account be provided of how the Minister became aware of the review, for example, was it by a written brief from IP Australia to the Minister or verbally third hand.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

The answer to the honourable senator's question is as follows:

(1) The inquiry was informal.

(2) No.

(3) A review of files and correspondence associated with Mr Wilkshire's case was conducted.

(4) The Director-General discussed the matter with the officers involved.

(5) The Director-General's information came from correspondence from Mr Wilkshire, the hearings decisions and material associated with the case.

(6) The Director-General informed Mr Wilkshire of his findings via correspondence.

(7) The Minister became aware of the review when responding to correspondence from Dr Kelly on behalf of Mr Wilkshire.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

asked the Minister representing the Minister for Immigration and Citizenship, upon notice, on 1 June 2011:

(1) What is the number of charges laid and convictions recorded against non-citizens for each financial year from 2006-07 to 2010-11 to date: (a) by state; (b) by visa type; (c) by type of offence, and (d) where relevant, the nature of any sentence, classified as: (i) no custodial sentence, (ii) a custodial sentence of 12 months or less, (iii) a custodial sentence of more than 12 months to 3 years, (iv) a custodial sentence of more than 3 years to 10 years, or (v) a custodial sentence of more than 10 years?

(2) What reporting requirements are in place to the department from responsible state, territory and other Commonwealth agencies, for charges laid and convictions recorded against non-citizens?

(3) Are there any proposals to change the reporting requirements to the department from responsible state, territory and other Commonwealth agencies, for charges laid and convictions recorded against non-citizens?

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

The Minister for Immigration and Citizenship has provided the following answer to the honourable senator's question:

(1) My Department does not collect the data sought in the question. The Department considers the preparation of an answer to the question would involve significant diversion of departmental resources in the seeking of information from each state or territory and the Australian Federal Police and, in the circumstances, does not consider that the additional work can be justified.

(2) My Department has in place information sharing arrangements with state, territory and other Commonwealth agencies to identify non-citizens serving prison sentences who fail the character test. Such agencies are not required to report to my Department on charges laid and convictions recorded against non-citizens.

(3) No.