Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

by leave—I move government amendments (1), (5), (6), (9), (11), (12), (14) to (17) and (19) to (23) together:

(1) Clause 3, page 2 (line 7), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(5) Clause 4, page 3 (lines 23 to 25), omit the clause, substitute:

  4 Object of this Act

     The object of this Act is to enable special measures to be taken to reduce the potential harm to the health of people, including Aboriginal persons and Torres Strait Islanders, living in certain areas from sniffing fuel.

(6) Clause 5, page 4 (before line 1), before the definition of conduct , insert:

Aboriginal person means a person of the Aboriginal race of Australia.

(9) Clause 5, page 4 (after line 23), after the definition of supply , insert:

Torres Strait Islander means a descendant of an Indigenous inhabitant of the Torres Strait Islands.

(11) Clause 11, page 11 (line 15), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(12) Clause 13, page 12 (after line 8), after paragraph (1)(a), insert:

  (aa) Aboriginal persons or Torres Strait Islanders (or representatives of Aboriginal persons or Torres Strait Islanders);

(14) Clause 14, page 13 (line 13), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(15) Clause 14, page 13 (line 14), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(16) Clause 14, page 13 (line 16), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(17) Clause 14, page 13 (line 18), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(19) Clause 15, page 14 (line 3), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(20) Clause 15, page 14 (line 5), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(21) Clause 15, page 14 (line 8), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(22) Clause 15, page 14 (line 11), after “people”, insert “, including Aboriginal persons and Torres Strait Islanders,”.

(23) Clause 16, page 14 (after line 25), after paragraph (1)(a), insert:

  (aa) Aboriginal persons or Torres Strait Islanders (or representatives of Aboriginal persons or Torres Strait Islanders);

I move these amendments to include specific reference to Aboriginal persons to Torres Strait Islanders. References to Aboriginal persons and Torres Strait Islanders in the bill will help to more explicitly identify them as beneficiaries of the bill and strengthen the claims in the explanatory memorandum that the bill satisfies the criteria of a special measure for the purposes of the Racial Discrimination Act. Most notable is the proposed amendment to the object of the act, which now makes explicit reference to Aboriginal persons and Torres Strait Islanders.

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

I indicate the Greens will be supporting these amendments. I would like to address this issue specifically, because this is the issue that has come up during the Senate inquiry and the committee inquiry and, most recently, Senator Nash was addressing it. I think it is important that we set the record straight, because coalition senator after coalition senator has said that they are not supporting the bill because the Senate committee said that we should not be supporting it.

The Senate committee made a number of recommendations, and I think it is really important that the community understands this. The reason we send legislation to committees—so that those listening understand it—is so that they can examine a bill, identify its strengths and weaknesses and make recommendations, which is exactly what the Community Affairs Legislation Committee did. Recommendation 2 of the report states:

The committee recommends that a legislative scheme for low aromatic fuel not be confined to reliance upon the corporations power.

This is what this amendment addresses. It broadens that. In my minority report on the inquiry I stated that I was nervous about expanding those powers. I have been very clear about that. So I undertook to consult further—and I also articulated this in my other comments and when I was circulating amendments. The consultation has come back to me from organisations that work in this field, particularly Aboriginal organisations, saying that they do support the amendments to broaden the base of this particular piece of legislation. They thought it would address the issues in the report.

The other recommendations that the committee made about amendments have been picked up by either the Greens' or the government's amendments. So we are keeping faith with the Community Affairs Legislative Committee report to address the concerns with this legislation.

I was concerned about this and I am glad that the government has picked up on these recommendations and has sought other constitutional powers to shore up this bill or to make the powers of this bill clear. I am glad that the bill now specifically references Aboriginal and Torres Strait Islander peoples as affected communities, so the bill can operate as a special measure to close the gap.

Strengthening the bill to the use of this particular measure was an approach that was suggested by submitters to the Senate inquiry and in evidence to the committee. CAYLUS's and Gilbert + Tobin's submissions during the committee inquiry process also recommended this proposal. It is very clear that special measures are not inherently bad measures, but they are not our first preference if there are other powers that can be appropriately applied. However, as I have said, I subsequently consulted those people who participated in the Senate inquiry, and those who will be affected, and I feel that there is sufficient community support for this particular amendment. Those who have responded have told me that they can accept it, especially if the approach is what is required to ensure the bill passes, because there is such strong support in the community for this particular bill, and that practical steps can be taken to help complete the low-aromatic fuel rollout that has been so successful to date. But as we have articulated in this place through this debate, and as did others on numerous occasions, it is not enough.

I want to draw a distinction between these measures and the alcohol measures that have been applied in the Northern Territory, for example. Apart from anything else petrol sniffing is not an accepted practice anywhere in Australia, unlike for example the consumption of alcohol. This bill does not make rules that are different for Aboriginal people, compared to other people in the region, and that is plain from the amendments the government has circulated. This improves the bill. I acknowledge that and I take on board what the Community Affairs Committee said. We always need to consult and make sure that we get these measures right. If it takes re-consultation and re-consultation, that is exactly what we did in this specific instance. So I am confident that we do have community support. In fact I have an email here from a number of organisations that have articulated their support for these particular measures.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I am pleased that Senator Siewert actually provided some rationale. As usual I will be as dignified as I can about that contribution. It has taken, amazingly, probably seven minutes of time. It is normally not an important matter here. But we have now been told that it is only half an hour to make a contribution to make what I consider very bad legislation better.

As Senator Siewert would know, we do not have time to achieve something that could have been achieved in a much more decent fashion. With an hour and a half to spare, the minister said, 'By the way, I've changed my mind. I've changed our position of the last three and half months and now we are supporting the Greens legislation.' Quite clearly, a deal was done, but now another deal has been done: 'We can't wait until February. We can't get it right. We now have to rush it through.' Of course, right at the end of that, they say, 'By the way, I've got some mates who say that use of the race powers in the Constitution is going to be quite okay.'

I would actually like some answers, Minister. I would love to take up time by berating my mates over there, but I really do need some answers. I am advised it is at best questionable as to whether a passing reference to include Torres Strait Islander persons will be sufficient to trigger the race power under section 51, part 26, of the Constitution. Perhaps I can broaden the question so that the advisers are not confused by something quite specific: whether it is section 8 of the Racial Discrimination Act, which talks about special powers, or whether it is the race power more generally, have you actually sought some advice about that matter?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Yes, we have had legal advice—in fact, robust legal advice—that says that amendments of this nature will provide surety. Under the Racial Discrimination Act, these amendments will provide the ability for it to be considered as a special measure.

I do not want to break the rhythm, but I take this opportunity to table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I will never get an opportunity to see that in the next period of time. Again, it all smacks of something that is being rushed. This is absolutely important. I am really pleased that you have that explanatory memorandum. As you would be aware, Minister, the Expert Panel on Constitutional Recognition of Indigenous Australians recommends the abolition of section 51, part 26, of the Constitution that refers more broadly to the race powers. Are you a little uncomfortable given that the expert panel specifically recommended that it be abolished? Is this a signal to the panel about the government's acceptance of that recommendation?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

No, you cannot take that as being a signal to the panel. What you can take is that this government is working assiduously, tirelessly, to ensure that we can assist people who are unfortunately addicted to petrol sniffing in the best possible way that we can. I come from Far North Queensland. We do not have the level of petrol sniffing that unfortunately occurs in other parts of Australia, but it does happen from time to time. As Australians and particularly as legislators, we have to do everything we possibly can so that people do not start petrol sniffing. You agree with me on this. This is the way we are doing that. The assertion that you have just made is incorrect. I can advise you that the expert panel still recommends that a power is needed to support legislation for Aboriginal and Torres Strait Islander peoples.

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

I just want to expand on that a little further. Having been a member of the expert panel, I just want to pick up on it very quickly. I am aware of time. The panel clearly recommended the need to address the advancement of Aboriginal and Torres Strait Islander peoples. It was a very clear recommendation of the expert panel.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

As I said, sadly I do not have time to pursue that issue to the degree I would like to. There are a couple of areas in this legislation. One is the relationship to the state and territory laws. This is really important. We now have three states and a territory that are fundamentally affected by this. The minister has written to them. I have spoken to the office of one state and ministers in three states about their adoption of the framework of the current Northern Territory Volatile Substance Abuse Prevention Act. It was recommendation 5 of the Senate committee recommendations. Both the minister and I have pursued this assiduously. Have you considered this: when the law comes in, is it capable of acting concurrently with the Volatile Substance Abuse Prevention Act of the Northern Territory?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

The question that Senator Scullion is asking probably relates more to other questions. As we usually do in this place, we have a broad-ranging discussion at the beginning of the committee stage. The minister will consider the response from the states before considering the designation of an area. The government is committed to pursuing a consistent national approach by tackling the harm caused by petrol sniffing. In addition to writing to relevant state and territory ministers in South Australia, Queensland, WA and the NT in July this year to seek their views on pursuing nationally consistent legislation, the Department of Health and Ageing officials have also liaised with their counterparts to progress this work. The relevant state and territory governments have indicated a willingness to continue discussions about legislative controls to prevent petrol sniffing. That is why the government amendments include a provision whereby, before designating a low-aromatic fuel area or a fuel control area, the minister must be satisfied that the appropriate states and territories have not enacted legislation consistent with the Low Aromatic Fuel Act or are unlikely to enact legislation within a reasonable period.

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

I think that the minister has just articulated that they have, in fact. The minister did meet requirements of recommendation 5, which was:

… that the Australian Government continue to consult with the relevant state and territory governments on the possibility of national legislation to mandate the supply of low aromatic fuel …

As I understood it, the minister just articulated that that has been happening.

We will also be supporting the amendments that the government has moved around that additional requirement for further consultation. However, Minister, I am concerned that that would be an endless consultation process. I understand that the minister would then put a time frame on that process because otherwise we end up in, 'we're gonna, we're gonna, we're gonna,' and we never do, which is what we have been seeing for the last seven years. So there needs to be a commitment that there would be a time frame put on that.

We would also like to say that if the Northern Territory volatile substances legislation were useful as it stands, then surely governments would have used it? I understood from the Senate inquiry that the current legislation does not address this particular issue and that there is also concern that if one state dealt with bringing in legislation—as happened with Urandangi across the border in Queensland—and Queensland decides not to do anything that you cannot deal with that issue either. There is clearly a need for this national approach.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

This goes back to the comments that I made earlier to Senator Scullion. I can put on the record that we are concerned about lag, and the time lag that has occurred. I understand that Minister Snowdon has indicated that if states and territories have not put in the appropriate systems, if I can use the more general word, by mid-next year then this bill, if enacted, will be enforced.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Thank you for that clarification. As I said, I can assure you that certainly the Northern Territory—and that will be the first amendment that takes place—will be well and truly enacted before then. This is why I cannot understand why we are in this position today.

In any event, I would just like to go to a couple of the technical details of the legislation. I suspect the original legislation relied intensely on the corporations power. But forget about what it relied on: it appears that the legislation talks about corporations. It talks about offences by corporations and it does not talk about offences by other bodies or people. For example, in part 2 are these requirements related to fuels for low-aromatic fuel areas and fuel control areas. It pretty much sets out the principal offences: you should not supply it, you should not transport it and you should not have it. These are the fundamentals of substance control in anything related.

The first one says that a corporation must not supply and that a corporation must not transport et cetera. Now, let's say we have two blokes—a pastoralist, 'Jimmy Giraffe', who owns 'Giraffe Vale Station' and, of course, he is 'Giraffe Enterprises'. He is an incorporated body. His brother, 'Simon', lives just down the road. They are both in the transport business—one runs his transport to pastoral properties around the place as does the other, to a slightly smaller degree. One is a partnership and the other one is an incorporated body.

As I read this legislation, it only seeks to capture those people who are an incorporated body. Can you just qualify whether my reading of this legislation is correct or otherwise with regard to the supply, possession and transport?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

The government acknowledges that the bill draws its authority from the corporations powers in the Constitution. While the obligations outlined in the bill may apply only to constitutional corporations, that is, incorporated bodies, the bill will be an important tool that the government can utilise to help combat the harms of petrol sniffing.

The government's proposed amendments improve the operation of the Low Aromatic Fuel Bill. The amendments do not address all the issues identified in the recent Senate committee report, but they go a long way to improving its administration. As noted in the Senate debate on 22 November, the amended bill provides an evolutionary step forward and enables other complementary activities—for example, education and diversionary programs—to have a positive effect.

The government has considered whether to expand the constitutional basis of the bill to draw on the race power to ensure that all retail and commercial entities involved in the supply of fuel in a designated area, not just a constitutional corporation, would be required to comply with the requirements of the bill. This could only be achieved by making it an offence for individuals to supply regular unleaded fuel in low-aromatic fuel areas or a fuel control area.

In addition, due to the complexity of the fuel supply chain it is unlikely that there would be circumstances in which the supply chain would not include a constitutional corporation, which would be bound by the provisions of the bill, and that would effectively stem the flow of regular unleaded petrol into a designated low-aromatic fuel area or fuel control area.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Thank you for that. That was a bit of a surprise: I thought there was something that I had not caught in there. I know, for example, that there is an outlet that is not incorporated. I know that; right now, one of the target outlets is not incorporated. I have sought advice about sliding from an incorporated body into some other body. It is not hard, particularly when we know that these people have been avoiding our best efforts.

But thank you for clarifying that. There is obviously now a large hole that you can drive a large fuel truck through. But in any event that is a function of having to rush things through. The Commonwealth put a whole range of things in section 51, and control of retail fuel is not amongst them. It is something that should be in the bailiwick of the states and the territories.

I wonder if I could just take you to part 3, section 16, Minister? It is on page 14 of the bill. I know you are taking advice perhaps on that other matter, and I am more than happy for you to provide that advice in one hit. It is actually in the area that talks about designating a fuel area, whether it is the wellbeing of the people living in the area or whether it is a reason for the health of the people living in the area, every single part of that is designated by living in an area.

I will give an example of providing a fuel area around my old mate's place—one of my favourite people—at Tilmouth Well. They have, through their continuing sale of regular unleaded petrol, caused damage in Balgo. Most of that information I have in fact received from Senator Siewert, and certainly confirmation of those matters. If we are going to put something in a designated place it will affect the wellbeing of people living in an area—Aboriginal people do not live at Tilmouth Well. It is just a service station. It primarily employs white people, or non-Aboriginal and Torres Strait islander people. There are a lot backpackers, but that is it. Most of the people who go through are tourists, but people know that any cars that go through Balgo have been to Tilmouth Well. So, when you get into Balgo, they know the car had to fuel up there, so they will knock some fuel off. Hence, there is the trouble.

When you are designating an area, you are talking about the wellbeing of people living in an area. I cannot understand the wellbeing of people living in the area of Tilmouth Well. It is certainly not threatened. The backpackers go and have a beer at night, slob around and do backpacker stuff, put fuel in cars and go away. Aboriginal people do not live there, so how are you going to use the race power to designate an area—and I am quite seriously miffed by this—for the wellbeing of people living in that area? In my view it is not going to capture what you want to do, because the people who are at risk of harm are living not only in another area but in another state, as opposed to the Territory. If you can give me a little relief on that, Parliamentary Secretary, that would be great.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

There are two points I can make about that, Senator Scullion. The boundary of an area is not constrained by the tenancy of a petrol station. The boundary can be designated by the minister according to the needs of the events that are happening at the time. Secondly—and I really need to underline this—in the process of designating an area there will be significant consultation that ensures that the point that you are making—and it is a real point—is considered in that designation of an area.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Thank you for that, Parliamentary Secretary. Again, without criticising you—I understand we are not in the circumstances that we would like to be and we would all like to have had more time to truly appreciate the task of drawing up this legislation within the Commonwealth powers. I acknowledge it has been difficult and I thank you for your frank and helpful answers.

We just do not have time to go through the amendments. We have far more amendments than we have time for, even to go through them briefly. These are the lumpy bits of the legislation that would stand out even to a boat hand like me and that I thought needed a little bit of sunlight.

If this legislation only captures people who are incorporated, the capacity for them to slip out of incorporation, to be existing sole traders or to be existing partners, means that this legislation will have no impact at all on those people. I am simply saying that it will not have any impact on them in the sense of the corporation powers. Perhaps they can be caught by some other aspect of the legislation, but it certainly will not be able to impact on people who are transporting or supplying fuel. There are a number of sole traders and a number of partnerships who run up and down the highway and deliver fuel. In terms of people who supply fuel, quite clearly, there is a reliance on the corporations power, and whatever the answer can be it is nowhere near as tight as saying, 'If you live in this area, we do not care if you are a corporation, a natural person, a sole trader or a partnership.' It is just poor legislation. I know that nobody is motivated by ill will here. It is just that it is second-class legislation; it really is. It only captures people who are, in effect, an incorporated body, and I suspect those people who have been avoiding this for some time will ensure that they will do it again.

In terms of recommendation 5, the volatile substance abuse act: Parliamentary Secretary, I can promise you, through the work that I have done and the conversations that I have had—as well as the ones the minister has had, because this is supposed to be a genuine bipartisan process—that the Volatile Substance Abuse Prevention Act of the Northern Territory is an act that is currently being amended to ensure that we can forensically capture all of the mischief that we find. It is terrific that this legislation says, 'Well, if that comes up, this will not be necessary.'

I understand from your answers that the issues of quantifying an area do not destroy the legislation, but these are real issues. As Senator Siewert indicated, in terms of the declaration and the movement of fuel in the area, whether it is Urandangi or Lake Nash—and that is actually in a different direction; it is coming from Queensland into the Northern Territory—and in saying that we have to have the consultation in broader areas, it all takes longer and it is all very muddled, it is like that simply because the Commonwealth is not equipped to do things that state and territory governments, and probably even local governments, could do even better. Whilst I am illuminated by your answer in terms of the expert panel, I certainly have a different sense. I think they were specifically talking about the legislation and the race powers we are using today. Yes, they said we should have something different, but they do not want this.

I should not be surprised, because this was all that was left. No doubt that the government was told, 'By the way, you are going to have to do this tomorrow.' I had an hour and 10 minutes—it was not two minutes to midnight; I want to be accurate—but I probably would have said, 'Well, what else have we got? The race power? Well, whatever.' But this is a very significant and serious Commonwealth power and it really begs the question of whether we are now moving into saying, 'Well, if you now to place murder, now, instead of being a criminal matter for a state or territory, murder of a person—including murder of an Aboriginal or Torres Strait islander person—immediately triggers Commonwealth powers under which we can legislate—

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

This is silly!

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

No, I'm sorry; it is not silly at all. It is silly because this is without precedent. We are talking about dealing with retail outlets. In any event, this is very poor legislation. It is a very serious matter, but I would still like to acknowledge, despite my reticence, the goodwill in terms of the motivation.

I have been very annoyed by this process, as the senators will probably imagine, but I know that nobody has been motivated by ill will. I think that it has been a complete waste of time. We could have worked together on this as we have done in the past. Instead, we are somehow saying that the Greens have had a victory. Sadly, this is second-class legislation for our First Australians and I do not think that the provision of second-class legislation for our First Australians is acceptable. We will not be supporting this legislation.

The CHAIRMAN: Order! The time allotted for the remaining stages of the bill has expired. The question now is that government amendments (1), (5) and (6), (9), (11) and (12), (14) to (17) and (19) to (23) on sheet CA238 be agreed to.

The Senate divided. [20:19]

(The Chairman—Senator Parry)

Question agreed to.

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

In light of those amendments having passed, I now seek leave to withdraw Greens amendments (1) to (5) on sheet 7289.

Leave granted.

The CHAIRMAN: The question now is that amendments (6) and (7) on sheet 7289, circulated by the Australian Greens, be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.