Simon Birmingham (SA, Liberal Party, Parliamentary Secretary to the Minister for the Environment) Share this | Link to this | Hansard source

I present a revised explanatory memorandum relating to the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 and I move:

That these bills be now read a second time.

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

Leave granted.

The speeches read as follows—

AUSTRALIAN WORKFORCE AND PRODUCTIVITY AGENCY REPEAL BILL 2014

The Australian Workforce and Productivity Agency Repeal Bill 2014 provides for the repeal of the Australian Workforce and Productivity Agency Act 2008 and the abolition of the Australian Workforce and Productivity Agency.

This Bill is a critical part of the Government's agenda for reforming governance arrangements for vocational education and training, as well as rationalising the number of portfolio bodies across government.

The Australian Workforce and Productivity Agency Act 2008 establishes the legislative framework for the Agency, which provides independent advice in relation to Australia's current, emerging and future skills and workforce development needs.

As part of the winding down of the Agency's operations, it is the Government's intention that the Agency's staff and functions be transferred into the Department of Industry to strengthen resources and the capacity of the Department of Industry to provide targeted advice.

The Agency has made a valuable contribution to policy development and refinement in key area of skills and workforce development. I would like to take this opportunity to thank all serving and prior board members for their involvement and engagement with the Agency and its policy and research.

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (BILATERAL AGREEMENT IMPLEMENTATION) BILL 2014

Today I am announcing a major step forward in the Government's commitment to reduce red tape. Duplication in environmental regulation between the Australian Government and states and territories adds an unnecessary burden to business, increasing the administrative and compliance costs and delaying projects. We are lifting that burden where it achieves the same environmental outcome, providing faster approvals and a simpler process which will deliver productivity benefits for the country.

Approval bilateral agreements have always been a feature of the EPBC Act since it was passed in 1999. This Government is now implementing the efficiencies envisaged when the EPBC Act was first drafted. We are now delivering on the original intent of the EPBC Act.

The Government has been working closely with states and territories to negotiate the approval bilateral agreements that will implement this policy. When the policy is fully implemented, state and territory governments will, for the first time, be able to make a single approval decision that accounts for both state matters and matters of national environmental significance. This will dramatically simplify environmental approvals and remove unnecessary bureaucracy, while maintaining the high standards set out in the EPBC Act.

The Government agrees that decision-making should be the responsibility of the most appropriate level of government. State and territory governments have responsibility for land and water management in Australia. They have processes in place for evaluating the environmental impacts of development proposals consistent with the principles of ecologically sustainable development.

Where state and territory processes meet the high standards set out in national environmental law, I can accredit them under the EPBC Act. There is more than one way to deliver efficient processes that protect the environment. It is only sensible that bilateral agreements be tailored to reflect state processes, while still providing for the outcomes sought by this government.

The Australian Government remains responsible for ensuring that the objects of the EPBC Act are met and environmental standards are maintained. We have developed an assurance framework that will give us, and the Australian public, confidence. The framework is built on accreditation standards under the EPBC Act. It is given effect by approval bilateral agreements and accreditation of state processes. The reform will also improve our ability to track and report on matters of national environmental significance and the environment, by making more information publicly available. The reform is good for the economy and good for the environment.

Consistent with our commitment to improve the economic climate for business while protecting the environment, we will continue to work with states and territories to bring all processes up to the national standard, and deliver increased strategic approaches that continue to streamline regulation.

This complements our wider environmental regulatory reform policy agenda such as our audit of environmental regulation, and the work of the House Standing Committee on the Environment.

The one stop shop policy is breaking new ground in improving the way that Australia ensures the protection of our environment and a more productive economy.

Amendments

The Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (the Bill) amends the EPBC Act to facilitate the efficient and enduring implementation of the Australian Government's one stop shop reform for environmental approvals.

This Bill makes amendments to clarify the existing provisions of the EPBC Act to help ensure the durable operation of the one stop shop and provide certainty for business. None of the amendments change or reduce the standards that state and territory processes must meet in order to be accredited under bilateral agreements.

Water Trigger amendment

This Bill includes an amendment that will allow me to include the 'water trigger' in the things state and territory approval decisions can cover under bilateral agreements.

Currently, the EPBC Act does not allow for the accreditation of a state or territory process for the purpose of approvals relating to large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource. This means that at the moment coal seam gas and large coal mining developments must go through two separate approval processes and often need to comply with two sets of conditions. This Bill will remove this restriction, but importantly, it will not remove the water trigger itself. The same environmental standards remain. It will create a consistent approach to all matters of national environmental significance: where state approval processes meet the high environmental standards, they can be accredited.

Including the water trigger in approval bilateral agreements is important for establishing a one stop shop for environmental approvals. With these amendments, based on past projects, it is anticipated that almost all large coal mine and coal seam gas projects would benefit from streamlined approvals under the one stop shop.

Providing a single approval process for the water trigger will reduce the regulatory burden on business while ensuring that high environmental standards are maintained. Robust environmental assessments of these actions will continue to be required, but delivered through a single assessment and approval process by the states. This will provide more certainty for investors with a simpler, streamlined regulatory system which is good for Australia's international investment reputation.

Under the current regulatory framework, there have been delays between the granting of state and territory and Australian government approvals. Delays are typically between 30 - 40 days, but can be longer. This can result in a significant gap between the state and the Australian government approval decisions with real economic consequences.

If this project was covered under the one stop shop, this type of delay would be avoided. Streamlined regulation is good for the economy, with lower costs and fewer delays for industry.

To ensure that the states and territories have the best available scientific information when making approval decisions for these projects, I am also proposing an amendment to allow all states and territories to request advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development. This will ensure that comprehensive environmental assessments can continue to include robust and independent science.

The community can have confidence that the impacts on water resources from large coal mining and coal seam gas developments will continue to be subject to rigorous assessment and approval processes.

Technical amendments to facilitate the implementation of bilateral agreements

This Bill also makes a number of technical amendments to provide certainty about the operation of bilateral agreements under the EPBC Act. These amendments will ensure that bilateral approval agreements are robust, durable and provide long-term certainty for business and the community.

Conclusion

This Bill demonstrates the Government's commitment to implementing genuine reform to deliver more effective and efficient regulatory processes while maintaining high environmental standards. It gives effect to the joint commitment of the Commonwealth and each of the states and territories for greater cooperation in environmental approval that will deliver productivity improvements and other substantial benefits for all Australians. The reform is good for the economy and good for the environment.

In providing for a streamlined and outcomes focused approach to environmental approval, these refinements to the EPBC Act will reduce regulatory burden and remove the red-tape that currently restricts our ability to realise the long-term ecologically sustainable economic, business and infrastructure development opportunities from which we all benefit.

I commend this Bill to the House.

FAMILY ASSISTANCE LEGISLATION AMENDMENT (CHILD CARE MEASURES) BILL 2014

Today I am introducing the Family Assistance Legislation Amendment (Child Care Measures) Bill 2014 which will do two things:

Both of these measures will apply from 1 July 2014 for three years, to 30 June 2017.

These measures do not in any way pre-empt the Productivity Commission Inquiry into Child Care and Early Childhood learning which is a holistic review into what is needed for the next generation – not just the next few years. The Productivity Commission's draft report will give us the first insight into their proposed reforms and is due next month.

The measures contained in this bill are, however, necessary. The Government is making decisions that repair the Budget, strengthen the economy and prepare Australia for the long term challenges and opportunities that confront us.

Child Care Benefit is a means tested payment based on a family's income. The Child Care Benefit provides assistance to families with child care costs. The amount of Child Care Benefit a family receives depends on the family's income, the type of care used, the hours of care and the number of children in care, as well as the parent's work, training or study commitments.

The Child Care Benefit measure in this Bill is a 2014 15 Budget measure and is one element of the Government's broader measure to maintain eligibility thresholds for Australian Government payments for three years. Maintaining the Child Care Benefit income thresholds will provide an estimated saving of $230 million over the forward estimates.

Child Care Benefit eligibility requirements will remain unchanged. The Government will continue to index, that is increase, the Child Care Benefit standard hourly rate, the minimum hourly amount and the multiple child loadings by the Consumer Price Index on 1 July each year.

It is important to note that the out of pocket costs incurred by most families because of this Child Care Benefit measure will be partially offset by the Child Care Rebate, which is not income tested and which covers up to 50 per cent of out-of-pocket child care costs up to $7,500 per child, per year.

The Child Care Rebate indexation pause at $7,500 was first implemented by Labor in 2011. Labor announced an extension of the measure as part of their

2013-14 Budget and then took the $105 million in savings from the budget bottom line but never legislated for it. When this government sought to legislate the measure, Labor combined with the Greens in the Senate earlier this year to block the legislation that would have given effect to their own measure (as part of the Social Services and Other Legislation Amendment Bill 2013).

Labor tried to justify blocking their own CCR indexation pause by claiming that the savings had been intended to "directly support" their Early Years Quality Fund (EYQF). Labor said it opposed the Coalition Government's attempt to implement Labor's own CCR provision because the Coalition Government had frozen the EYQF funds (Hansard, 4/12/13).

This Government did put a freeze on the EYQF funds – but only while an independent review was undertaken. That independent review found the fund was fundamentally flawed and inequitable and would benefit less than 30 per cent of long day care workers. This government has honoured funds contracted from the EYQF and also redirected the remaining funds – over $200 million – towards professional development activities to benefit the whole long day care sector, not just a minority.

So, if Labor chooses to block its own measure again – it will need to come up with a different excuse.

These measures will not impact families with incomes below $41,902 (which is the lower income threshold for Child Care Benefit). These families will continue to receive the maximum rate of Child Care Benefit. The amount of Child Care Benefit a family receives tapers to zero as their income increases to the relevant maximum income limit. For example, a family with three children in child care for 50 hours per week with an income of up to $170,404 is currently eligible to receive some Child Care Benefit, as well as up to $7,500 Child Care Rebate per child per year.

The upper income threshold of $97,632 referred to in the legislation is a mechanism for the very complex way in which Child Care Benefit is calculated and tapered, depending on a family's income, the number of children in care, the type of care, and hours used. This is a level of complexity that has been raised by families and service providers alike in the course of the Government's Productivity Commission Inquiry.

Overall, this Government is increasing child care assistance to $28.5 billion over the next four years (2014 15 to 2017 18) to assist around a million families each year through the Child Care Benefit and Child Care Rebate.

But we cannot forget the context in which we are all operating today: Labor delivered six budget deficits; they left $123 billion in cumulative deficits ahead; and their debt is costing Australians $1 billion a month in interest, effectively dead money.

The days of borrow and spend must come to an end. The Coalition has delivered a budget of both saving and building; it's a budget that ensures we will get back to living within our means, just as households must. Even though we inherited a mess, we are taking responsibility and fixing it up through strong and fair action. This Bill is an important part of that action.

MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2014

The Migration Legislation Amendment Bill (No. 1) 2014 amends the Migration Act 1958 (the Act) and the Australian Citizenship Act 2007 (the Citizenship Act) to:

Crimes Act 1914

Electronic Transactions Act 1999

Limitation or prohibition on valid applications for visas

The first Schedule to the Bill will ensure that sections 48, 48A and 501E of the Act can be correctly applied according to policy intention.

Sections 48, 48A and 501E of the Act limit or prohibit the making of valid visa applications by persons who have been refused a visa or who held a visa that was cancelled.

Currently, section 48 limits further visa applications by a person in the migration zone who held a visa that was cancelled. This means a person whose visa has been cancelled at any time in the past will not be able to make a further visa application while they are in Australia. This is not consistent with the policy intention, which is to limit further visa applications if the person has held a visa that was cancelled only since last entering Australia.

In addition, the amendment will clarify that sections 48, 48A and 501E also apply to limit or prohibit the making of further visa applications by persons who were refused a visa for which a valid application was made on the person's behalf. This is irrespective of whether the person knew about, or understood the nature of, the application because the person lacked capacity due to a mental impairment, or because the person was a minor at the time of that application.

The amendment will ensure that, consistently with the policy intention, the application of sections 48, 48A and 501E will not be determined by reference to a retrospective and subjective assessment of the person's knowledge or understanding of the visa application made on their behalf. Instead, the application of these provisions can be determined by reference to the objective criterion of whether or not the person has been refused a visa since they last entered Australia as a matter of fact.

The amendment will protect the integrity of Australia's visa systems by ensuring that minors or mentally impaired persons who have been refused a visa and who do not otherwise have a lawful basis for remaining in Australia, cannot make or have made on their behalf, unmeritorious visa applications in order to prolong their stay in Australia. It also ensures that different members of the same family unit, some of whom may be minors or mentally impaired, who applied for visas together will receive consistent immigration outcomes and be bound by the same consequences.

Schedule 2 – Removal of unlawful non-citizens

The second Schedule to the Bill will clarify the interaction between section 195 and subsection 198(5) of the Act. This is to ensure that a bridging visa application is not an impediment to the removal of a person under subsection 198(5) of the Act.

Currently, subsection 198(5) of the Act does not explicitly cover situations where a detainee has applied only for a bridging visa, which has resulted in a small cohort of detainees being unable to be removed from Australia. This amendment now clarifies the wording of subsection 198(5), to ensure the correct operation of removals policy intent.

In addition, these amendments put beyond doubt that a person cannot be removed if they have applied for a protection visa and the grant of the visa has not yet been refused or the application has not yet been finally determined. This puts beyond doubt that subsection 198(5) of the Act does not apply to an unlawful non-citizen who has made a valid application for a protection visa].

These measures will apply to the removal of a detainee on or after the commencement of this Schedule, including if the detainee was detained before that day.

Schedule 3 – Recovery of costs from certain persons

The third Schedule to the Bill will apply the debt liability provisions of the Act to all convicted people smugglers and illegal foreign fishers.

On 9 November 2009, the relevant operative provisions of the Migration Amendment (Abolishing Detention Debt) Act 2009 commenced. These amendments removed liability for certain persons and liable third parties to the Commonwealth for the cost of keeping, maintaining, and transporting them while they were in immigration detention.

Under existing legislative arrangements, convicted people smugglers and illegal foreign fishers who are detained because of section 250 of the Act, remain liable to the Commonwealth for their detention and removal costs. The Act also contains a number of provisions that facilitate the recovery of these debts. However, under current provisions of the Act, a person is not liable for costs arising from their immigration detention and removal if they were not initially detained because of section 250, or because they were not in immigration detention at the time of their conviction, or because they have since been granted a visa (for example, a criminal justice stay visa while in prison). Accordingly, the debt liability provisions cannot be applied to all people smugglers and illegal foreign fishers, regardless of how or if they were detained and whether they have been granted a visa.

This inability to apply the debt liability provisions of the Act consistently to all convicted people smugglers and illegal foreign fishers, negates any financial disincentive to these persons to participate in people smuggling or illegal foreign fishing.

Changes to the Act will make it clear that these provisions will apply either at the time of conviction or after the convicted people smuggler or illegal foreign fisher has completed serving the whole or part of their criminal sentence. These amendments will also clarify that detention transportation and removal costs are recoverable from a convicted people smuggler or illegal foreign fisher regardless of their current status or whether or not they were believed to be a people smuggler or illegal foreign fisher at the time of their immigration detention.

Schedule 4 – Authorised recipients

The fourth Schedule to the Bill will clarify the obligation of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) to give documents to an authorised recipient. The amendments also clarify the role of an authorised recipient and remove the requirement to notify an authorised recipient of direct oral communications made with the person who authorised them.

The first amendment addresses the Full Federal Court's decision in SZJDS v Minster for Immigration and Citizenship [2012] FCAFC 27, in which the Full Federal Court found that the MRT or the RRT's obligation to give documents to an authorised recipient does not extend to review applications which have not been properly made. The amendment will put it beyond doubt that where an authorised recipient has been authorised by a review applicant to receive documents on their behalf, the MRT or the RRT must, consistent with the review applicant's wish, give documents relating to the review to the authorised recipient, even if the review application itself was not properly made.

The second amendment is to clarify the intended operation of the provisions relating to authorised recipients. Currently, the Act provides that an authorised recipient can do things on behalf of an applicant or a person that consist of, or include, receiving documents in connection with the application or matters arising under the Act or the Migration Regulations 1994. This is broader than the policy intention for the role of an authorised recipient, which is only to receive documents and not do anything else on behalf of the applicant or person, and has led to comments by the Full Federal Court in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156 that the relevant provision means that an authorised recipient is "constituted effectively as the agent of the visa applicant".

The amendment therefore clarifies that an authorised recipient is authorised to only receive documents and to update their own address for the purpose of receiving documents. If an applicant or person has an intention to allow another person to do additional things on their behalf, evidence must be provided to the Department or the Tribunal separately to the authorisation of that person as an authorised recipient.

Finally, the amendments remove the current requirement to notify an authorised recipient of direct oral communications made with the applicant or person. This is a consequential amendment to the clarification of the role of an authorised recipient. If an authorised recipient is only authorised to receive documents, then there is no longer a reason or a need to inform the authorised recipient of communications made directly with the applicant or person. However, this would not prevent the Department or the Tribunal, under policy, from informing the authorised recipient of relevant and important direct communications made with the applicant or person, in circumstances where the authorised recipient has also been given separate authority to act for the applicant or person, other than to receive documents.

Schedule 5 – Crimes Act Warrants

The fifth Schedule to the Bill will provide access to, and use of, material and information obtained under a search warrant issued under the Crimes Act 1914 for certain purposes of the Act and Citizenship Act.

These amendments overcome the limitation on receiving and using information obtained under a search warrant issued under Division 2 of Part 1AA of the Crimes Act 1914 for the purposes of making certain administrative decision under the Act or Citizenship Act.

The purposes for which the material and information can be received and used in the context of the Act are:

The Department of Immigration and Border Protection has a critical role to play in ensuring fair and reasonable decisions are made regarding people entering or the detention, removal or deportation of a person from Australia to ensure compliance with immigration laws. It is in the public interest that, where available, immigration decision makers are able to use and share information that help inform lawful decisions.

Immigration criminal investigators have at their disposal legitimately obtained material that could be made available to administrative decision makers if supported through appropriate legislation. The Bill seeks to facilitate the use and sharing of material or information obtained under a section 3E Crimes Act 1914 search warrant.

The amendment proposes to use material already in the possession of the department, as well as enabling other agencies to provide material obtain under a warrant, for certain visa and citizenship decisions. The amendment would not further extend coercive powers or administrative responsibilities, simply provide further information to administrative officers for more effective decision making.

Schedule 6 – procedural fairness requirements and removing redundant references

Part 1 of the sixth Schedule to the Bill will remove the current distinction between applications for visas that can be granted when the applicant is in the migration zone and which are subject to merits review by the MRT or the RRT, for which the Act requires an opportunity to be given to the visa applicant to comment on certain adverse information before a decision to refuse can be made, and applications for other types of visas.

The amendment addresses the finding of the High Court in the case of Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (Saeed) that although the Act does not require an opportunity to comment to be given to applicants for visas not subject to MRT or RRT review, nevertheless there is a requirement under the common law to provide the visa applicant with an opportunity to comment before a decision can be made on the visa application. The Saeed decision means that procedural fairness must be given to all visa applicants. The only difference is whether the statutory or the common law procedural fairness requirements apply, depending on the visa applied for.

The amendment therefore removes the current distinction between applications for visas. In other words, the amendment will ensure that the procedural fairness requirements prescribed in the Act will apply universally to all visa applications and provide for greater consistency in decision making.

Part 2 of the sixth Schedule to the Bill will repeal provisions in the Act which contain references to section 14 of the Electronic Transactions Act 1999 (the ET Act). These provisions have become redundant following the amendment to the ET Act in 2011 which restructured and renumbered provisions in the ET Act, and the subsequent amendment made in 2013 to the Electronic Transactions Regulations 2000.

I commend the Bill to the Chamber.

Debate adjourned.

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