COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY DEBATES

SENATE

Official Hansard No. 3, 2002 WEDNESDAY, 20 MARCH 2002

FORTIETH PARLIAMENT FIRST SESSION—FIRST PERIOD

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SITTING DAYS—2002 Month Date February 12, 13, 14 March 11, 12, 13, 14, 19, 20, 21 May 14, 15, 16 June 17, 18, 19, 20, 24, 25, 26, 27 August 19, 20, 21, 22, 26, 27, 28, 29 September 16, 17, 18, 19, 23, 24, 25, 26 October 14, 15, 16, 17, 21, 22, 23, 24 November 11, 12, 13, 14, 18, 19, 20, 21 December 2, 3, 4, 5, 9, 10, 11, 12

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WEDNESDAY, 20 MARCH Migration Legislation Amendment (Transitional Movement) Bill 2002— First Reading ...... 1031 Second Reading...... 1031 Business— Rearrangement...... 1032 Winter Olympic and Paralympic Games...... 1037 Business— Consideration of Legislation ...... 1037 Business— Consideration of Legislation ...... 1045 States Grants (Primary and Secondary Education Assistance) Amendment Bill 2002— Second Reading...... 1049 In Committee...... 1053 Matters of Public Interest— Zimbabwe...... 1067 Attorney-General: Address to Senior Officers ...... 1070 Homosexual Legal Rights ...... 1073 Telstra: Telecommunications Infrastructure ...... 1076 Superannuation: Quarterly Payments ...... 1078 Questions Without Notice— Privilege: Senator Heffernan ...... 1081 Economy: Growth ...... 1082 Privilege: Senator Heffernan ...... 1082 Car Industry...... 1083 Privilege: Senator Heffernan ...... 1084 Zimbabwe...... 1085 Privilege: Senator Heffernan ...... 1086 Taxation: Forest Plantation Industry...... 1087 Privilege: Senator Heffernan ...... 1087 Social Security: Compliance ...... 1088 Privilege: Senator Heffernan ...... 1089 Stuart Shale Oil Project ...... 1090 Privilege: Senator Heffernan ...... 1091 Telecommunications: Media Services ...... 1092 Health: Program Funding ...... 1093 Answers to Questions on Notice— Questions Nos 105, 107 and 115 ...... 1093 Questions Without Notice: Additional Answers— Telstra: Services and Sponsorship ...... 1094 Questions Without Notice: Take Note of Answers— Privilege: Senator Heffernan ...... 1094 Taxation: Forest Plantation Industry...... 1099 Petitions— Health: MRI Machine, Princess Margaret Hospital...... 1100 Notices— Presentation ...... 1100 SENATE CONTENTS—continued

Committees— Selection of Bills Committee—Report...... 1102 Business— Rearrangement...... 1111 Notices— Postponement ...... 1111 Committees— Economics References Committee—Reference...... 1111 Senate: Dress Code...... 1111 Human Rights: China...... 1112 Committees— Privileges Committee—Reference ...... 1112 Health: MRI Machine, Princess Margaret Hospital...... 1112 Health: Nuclear Testing ...... 1112 Health: Mental Illness...... 1113 Family Court: Property Issues— Suspension of Standing Orders...... 1113 Committees— Community Affairs References Committee—Meeting ...... 1116 Employment, Workplace Relations and Education References Committee— Reference...... 1116 Scrutiny of Bills Committee—Report ...... 1117 Delegation Reports— Official Visits to the Assembly of the Republic, Portugal, and the Senate, Spain...... 1117 Parliamentary Zone— Proposal for Works ...... 1117 Delegation Reports— Parliamentary Delegation to the 47th Commonwealth Parliamentary Conference...... 1117 Committees— Membership...... 1117 Health: Nuclear Testing— Return to Order...... 1117 Notices— Withdrawal ...... 1118 States Grants (Primary and Secondary Education Assistance) Amendment Bill 2002— In Committee...... 1118 First Speech...... 1123 Committees— Economics Legislation Committee—Report...... 1127 States Grants (Primary and Secondary Education Assistance) Amendment Bill 2002— In Committee...... 1127 Third Reading...... 1140 Taxation Laws Amendment (Baby Bonus) Bill 2002, Therapeutic Goods Amendment Bill (No. 1) 2002, Therapeutic Goods (Charges) Amendment Bill 2002, SENATE CONTENTS—continued

Therapeutic Goods Amendment (Medical Devices) Bill 2002 and Taxation Laws Amendment Bill (No. 1) 2002— First Reading ...... 1140 Second Reading...... 1140 Business— Rearrangement...... 1144 Disability Services Amendment (Improved Quality Assurance) Bill 2002— Second Reading...... 1144 In Committee...... 1145 Third Reading...... 1146 Migration Legislation Amendment (Transitional Movement) Bill 2002— Second Reading...... 1146 In Committee...... 1156 Third Reading...... 1184 Adjournment— Zimbabwe...... 1185 Telstra: Services...... 1186 Ah Toy, Lily...... 1189 Brown, George ...... 1189 Documents— Tabling...... 1191 Tabling...... 1191 Indexed Lists of Files ...... 1191 Departmental and Agency Contracts...... 1191 Questions on Notice— Minister for Agriculture, Fisheries and Forestry: Visit to the United States of America—(Question No. 12) ...... 1192 United States Farm Bill—(Question No. 14) ...... 1193 Department of Health and Ageing: Freedom of Information Request— (Question No. 90)...... 1193

Wednesday, 20 March 2002 SENATE 1031

Wednesday, 20 March 2002 tries’, where their claims, if any, to asylum could ————— be assessed. The government’s strategy is starting to have re- The PRESIDENT (Senator the Hon. sults. There have been no boats attempting to Margaret Reid) took the chair at 9.30 a.m., breach our immigration controls for several and read prayers. months. Recent media reports indicate that people MIGRATION LEGISLATION smuggling activity appears to have declined. AMENDMENT (TRANSITIONAL The government is also working with other coun- MOVEMENT) BILL 2002 tries to discourage people smuggling. The recent First Reading conference in Bali is a strong positive indication of the commitment of countries in our region to Bill received from the House of Repre- tackle people smuggling. sentatives. While continuing to be vigilant, the government Senator TROETH (Victoria—Parlia- recognises there are some situations where it may mentary Secretary to the Minister for Agri- be necessary to bring to Australia some persons culture, Fisheries and Forestry) (9.31 a.m.)— who have been taken to a declared country. I move: This bill proposes amendments which will allow That this bill may proceed without formalities such a person, called a “transitory person”, to be and be now read a first time. brought to Australia from one of the declared countries in exceptional circumstances. Question agreed to. The government will not be bringing persons who Bill read a first time. have been assessed as being refugees according to Second Reading UNHCR guidelines to Australia under the provi- sions proposed by this bill. Senator TROETH (Victoria—Parlia- mentary Secretary to the Minister for Agri- The exceptional circumstances where a transitory person may be brought to Australia include: culture, Fisheries and Forestry) (9.31 a.m.)— I table a revised explanatory memorandum Situations where a person has a medical con- relating to the bill and move: dition which cannot be adequately treated in the place where the person has been taken; That this bill be now read a second time. Transit through Australia for, either return to I seek leave to have the second reading their country of residence, or to a third coun- speech incorporated in Hansard. try for resettlement; and Leave granted. Transfers to Australia in order to give evi- The speech read as follows— dence as a witness in a criminal trial, such as people smuggling prosecutions. This bill amends the Migration Act 1958 to allow In order to maintain the integrity of Australia’s for certain non-citizens to be brought to Australia border controls it is necessary to ensure that the temporarily. transitory person’s presence in Australia is as In September 2001, the parliament passed short as possible, and that action cannot be taken amendments to the Migration Act to provide a to delay that person’s removal from Australia. stronger statutory basis for the government’s The amendments proposed by the bill will ensure strategy to stop persons seeking to enter Australia that these persons cannot apply for any visa and, unlawfully by boat. thus, use our processes to delay their transit The government’s actions and those amendments through Australia. Details of the measures are set were in response to an increase in people smug- out in the explanatory memorandum for the bill. gling activities, which led to larger numbers of In order to ensure that our international obliga- persons using vessels to seek to enter Australia tions are met, there is a non-compellable power unlawfully. for the minister to allow a person to make an ap- That legislation gave support to the government’s plication for a specified class of visa. Where this intention that unauthorised boat arrivals should power is exercised the minister must report to the not be allowed to reach the Australian mainland. parliament. Proposed sub-section 46b(5) requires The amendments provided power for unauthor- that report to exclude information that could ised boat arrivals to be taken to ‘declared coun- identify the person and thus protect their privacy. This provision is consistent with all other non- compellable powers in the migration act. 1032 SENATE Wednesday, 20 March 2002

Finally, should a person be brought to Australia issues that is obviously part of the govern- prior to completion of their refugee assessment ment’s agenda for these extended hours. The process, the government will ensure that the refu- bill is very significant, it has only just ap- gee assessment process will be completed in a peared, and the government is trying to rail- like manner to those remaining in offshore places. road it through this week. These extensions I commend the bill to the Senate. of sitting hours at virtually no notice are ba- Ordered that further consideration of the sically a mechanism for trying to railroad second reading of this bill be adjourned to legislation through without adequate scru- the first sitting day of the next period of sit- tiny. tings, in accordance with standing order 111. Some of the bills and issues that we will BUSINESS be considering have been around for a while Rearrangement through the previous parliament, and to that extent there may be an argument for debating Senator TROETH (Victoria—Parlia- them and passing them reasonably quickly. mentary Secretary to the Minister for Agri- But it is a great breaching of the Senate’s culture, Fisheries and Forestry) (9.32 a.m.)— responsibilities if we enable significant new At the request of the Manager of Govern- pieces of legislation that have only just ap- ment Business, Senator Ian Campbell, I peared to be debated at very short notice move: without proper scrutiny. It is very poor prac- That on Wednesday, 20 March 2002: tice for the Senate to be agreeing to extend (a) the hours of meeting shall be 9.30 am to sitting hours through to midnight—following 6.30 pm and 7.30 pm to midnight; on from the extension of sitting hours yester- (b) the routine of business from 7.30 pm to day—solely because the government will not 11.20 pm shall be government business provide enough sitting days for us to con- only; and sider legislation. (c) the question for the adjournment of the Instead of having a proper examination of Senate shall be proposed at 11.20 pm. the issues, we are basically having legislation Senator BARTLETT (Queensland) (9.32 by exhaustion, through until midnight, night a.m.)—I would like to speak to this motion. after night. The government is trying to push It is important to be clear what is actually through bills that have not been around for a being proposed here. The government is sufficient length of time for proper consid- seeking to extend sitting hours tonight, on a eration. It makes it impossible for there to be Wednesday, beyond our normal 7.20 p.m. adequate time lines for committees to inquire finishing time—to go through to midnight, into bills. Either we examine them, consider with the adjournment starting at 11.20 p.m. them and report this week or we put them off The Democrats have already expressed a for nearly two months. As the Senate would number of times our disappointment at the be aware, but others may not, after this week fact that this government has put forward so we are not back here until 14 May, and then few sitting days for the parliament, and for only for three sitting days. Then we are not the Senate in particular. We have the smallest back again until the second last week of number of sitting days in a non-election year June. It is a ridiculous scenario. There is an for about 40 years. inadequate time line and an inadequate num- From the Democrats’ point of view, given ber of sitting days to properly consider leg- the increasing workload that the Senate has islation. in our primary role of assessing legislation— Let the Democrats emphasise that it is not not to mention delegated legislation: regula- just a matter of us as legislators having ade- tions and the like—to be required to assess quate time to consider legislation; it is a so many pieces of legislation in such a small matter of whether the public as a whole have number of sitting days is almost guaranteeing the opportunity to be aware of what is going inadequate examination of very important on and to provide their input into significant issues. Whilst I will not expand on it in this pieces of legislation. The ability for this gov- debate, there is a bill in relation to migration ernment to put through matters before the Wednesday, 20 March 2002 SENATE 1033 public are even aware that they are up for government business time just for the sake of debate, let alone aware that they have been it. We obviously will use what mechanisms debated and passed, is greatly increased we have available to us to get proper scrutiny every time the Senate agrees to motions like of legislation, but we are sympathetic to the these, which allow bills to be debated, con- fact that there is a lot of legislation that the sidered and passed in the late hours, night government and Senator Campbell in par- after night, particularly when legislation is ticular have the responsibility of trying to get being introduced at very short notice. through in the time available. We are sym- From the Democrats’ point of view, it is a pathetic to trying to use that time responsibly combination of poor legislative practice plus and getting a balance between adequate con- poor accountability and poor transparency sideration and adequate debate and actually from the public point of view. The Demo- getting through the business. I believe we crats believe that this is an inappropriate have been responsible in relation to that, but motion and an inappropriate practice for us if this is going to be a common approach— to be getting into. The Democrats would pre- providing inadequate time and then extend- fer motions to increase the number of sitting ing the hours at short notice and having mid- days. If we could have a sitting week or an night sittings—it gets harder to be coopera- extra couple of sitting weeks in April, that tive. From the Democrats’ point of view, it would be a much more responsible way of appears the government is acting in less than dealing with these issues and would be much good faith if it provides inadequate sitting less likely to impugn the reputation of par- days and then just tries to extend the sitting liament by rushing through significant mat- hours to compensate, particularly when it ters without proper consideration and with- uses that to try to get through legislation that out the opportunity for public awareness in has not had proper scrutiny— legislation that relation to them. it introduces one week and it tries to have it passed through the whole parliament the next So it is a motion the Democrats are week. The arguments then put forward by strongly opposed to. We do not think it is a people such as the Manager of Government desirable way to operate. I indicate that we Business have less substance. I am very would be supportive if the government were sympathetic to the arguments he puts but to move for extra sitting weeks to do this only when the government actually acts re- properly rather than have midnight sittings at sponsibly from its side of the bargain. If it is very short notice. That would be the pre- going to try to railroad legislation through ferred way to go. But to simply have a gov- without proper scrutiny, it is much less ap- ernment putting up the smallest number of propriate for the Democrats and other sena- sitting days in a non-election year for dec- tors to cooperate with that agenda. ades and then forcing us to extend to mid- night night after night because they do not I emphasise that the Democrats will be have enough time to get their legislation con- cooperative in trying to ensure that the gov- sidered is just shoddy practice. It is very ernment business is got through in a reason- poor. able time, but we will not be supportive of processes that prevent proper scrutiny of im- I should emphasise that this is not a matter portant legislation or that enable railroading of trying to delay legislation inappropriately. of important legislation through parliament I do recognise and acknowledge the com- in the dead of night without proper transpar- ments that Senator Ian Campbell has made ency and accountability. We are willing to be from time to time about the difficulty of the cooperative and responsible where possible timetable and the difficulty of the govern- but, as everyone says, these are issues that ment getting through its business. I believe apply from all sides. We have already seen that, so far, the Democrats’ responsibility one example in this sitting fortnight of an cannot be challenged in relation to the con- attempt to try to slip a bill through without sideration of legislation. Even when we have adequate committee examination. We will been opposed to particular bills, we have not probably be revisiting that later today. The inappropriately or irresponsibly chewed up more that happens the harder it is for the 1034 SENATE Wednesday, 20 March 2002

Democrats, and I think all of us, to be coop- government does not want any scrutiny of its erative in this approach. Despite the fact that behaviour, of its conduct, because we have we oppose this, as an indication that we are seen a fundamental undermining in the re- not being unreasonable and chewing up time, cent six months of institutions such as the I will not continue my remarks now, I will Defence Force. We have seen the humiliation not speak for my full time, but I think it is that Admiral Barrie was forced to go important to highlight what is happening through, the humiliation that this government here and the dangerous consequences that are has just subjected Justice Kirby to—though, occurring. This is an important chamber. It is at the end of the day, the humiliation was its the last— own—and the lack of process and lack of Senator Conroy—Bastion. scrutiny that has brought humiliation upon the office of the Governor-General. Now we Senator BARTLETT—bastion—thank are seeing the executive moving on to try to you; I was going to use another word but that humiliate the processes of parliament. will do—the final hurdle, if you like, that stops complete power for the executive. If Part of the reason the government has got we allow this chamber to not operate in an into this mess is what happened prior to the effective way, then we are just rolling over last election, when the parliament did not and letting the executive get complete power, sit—when the Senate’s processes, those vital and that would be an abrogation of our re- Senate estimates committees, did not sit from sponsibility and a weakening of the funda- June of last year until February this year, mental underpinnings of our entire system of when they sat for a few days. The lack of democracy. So it is a serious matter and one scrutiny allowed the government to perpe- that we need to note when motions like this trate a series of falsehoods, a series of issues are moved. I am assuming the government that the Australian public was fundamentally would not be moving this if they did not misled on. That is why it is important that have support, so it will not surprise me when the Senate operate as the final check and bal- it gets through. But I do think that the con- ance—or bastion, as Senator Bartlett said— cerns that the Democrats have on a broader in a democratic society. If parliament had sat, process base need to be made, because I we would not have seen the defence depart- think it is a serious issue. ment misused as it was before the election. If parliament had sat, we would have got to the Senator CONROY (Victoria) (9.42 bottom of whether the photographs were a.m.)—At the outset, I indicate that the oppo- really true, because parliament affords an sition will support the government’s motion, opportunity to ask questions like, ‘Were but we do so with a great deal of misgiving. those photos doctored before Peter Reith put Senator Bartlett has outlined many of the them out? Did they have the dates removed reasons why this is an unsatisfactory set of from them?’ And the answer would have circumstances. We have a situation where, been very quickly achieved that, yes, Peter since the election, parliament will have sat Reith and his office removed the dates and for a grand total of four weeks, yet we are the captions. It would have taken one ques- now being asked to not sit again for seven tion in question time. It would have taken weeks—until the time of the budget. At some one question at a Senate estimates. point you have to say that this government is beginning to believe its own rhetoric. It is I understand why this government does beginning to believe that just because it won not want us to have greater scrutiny. It does an election it does not have to face scrutiny, not want to have more question times; it it does not have to face accountability. If we wants to try and abuse the processes so that it have a continuation of this practice—and I does not have to face the scrutiny of sena- can only agree with you, Senator Bartlett— tors. We would then not be able to get more we will be faced with a fundamental corrupt- details on the $5 billion loss that this gov- ing of the parliamentary process. We are ernment has inflicted on the Australian peo- having less and less opportunity to scrutinise ple because Peter Costello, the Treasurer, fell the executive. I can understand why this asleep at the roulette wheel. We would not Wednesday, 20 March 2002 SENATE 1035 have this information that we got recently, if saying, ‘This bill on the ASIO package and it were not for the parliamentary processes. the border defence package is so incredibly We would not have been able to make this important you have to pass it in 24 hours!’ government accountable on all those sorts of That is not an acceptable parliamentary proc- issues. We would not have discovered that ess. The Leader of the Opposition, Mr Crean, Peter Costello— has written to the Prime Minister and told The PRESIDENT—Mr Costello, Sena- him to stop abusing the process, that this is tor. parliament and it is not good enough to say, ‘It took us six months to write some legisla- Senator CONROY—Sorry, Madam tion about terrorism and extending ASIO’s President. We would not have discovered powers. We have had six months to work on that Mr Costello received a report every year it; you have got 24 hours.’ That is not good which detailed the size of the losses. He enough. It shows that this government has a wants to stand up now and say, ‘I did not disdain for parliament. It shows that this ex- know anything about it. It is not my fault.’ ecutive is not interested in scrutiny; it would But it was Treasury officials, through the rather try to ram through its legislation with- parliamentary process, that revealed that Mr out appropriate checks and balances. That is Costello received Treasury’s annual report what is at stake here. that contained a table in it which listed the size of the losses. It was also revealed Even though Labor is supporting this through the parliamentary and Senate proc- amendment, because we have to have an or- esses that Mr Costello received advice from derly process, we want to put on the rec- independent, expert analysts about how to ord—like Mr Crean put on the record last conduct the portfolio. They recommended week—that it is not good enough to try and that he split the portfolio to reduce the risk of ram legislation through parliament. This par- the size of the losses— liament, this Senate, has a role and it should be treated accordingly. Yes, Labor is sup- Senator Calvert—Madam President, I porting this and, yes, at times legislation is rise on a point of order. We are debating the urgent and does need to be rushed through, extension of sitting hours. I think Senator but explain to this chamber, government Conroy seems to be straying from the sub- ministers and senators, why it is that it took ject. I wonder when he will return to what we you six months to prepare legislation, which are talking about. on 12 September you said was incredibly The PRESIDENT—It is ranging very urgent. You took six months to prepare it, widely from the topic, Senator Conroy. then you run it into the parliament and say to Senator CONROY—I appreciate that the opposition and the other minor parties, you are not taking the point of order, Madam ‘You have got to pass this in 24 hours.’ That President. Senator Calvert, this is about the is not good enough. It is increasingly the democratic process, the abuse of it being pattern because this government does not undertaken, and the government’s arrogance want to expose the fact that the Pacific solu- in believing it does not have to face the scru- tion has collapsed. It does not want to tell tiny of the Australian public, the Australian Australians that when the Prime Minister, Mr parliament and this chamber. It is an arro- Howard, said before the election that none of gance— the people on Tampa ‘over my dead body’ Senator Watson—We are giving you will ever set foot on Australian soil, that it is more time. slipping through a piece of legislation this week which is about bringing the people Senator CONROY—Thank you, Senator from Nauru onto Australian soil. Watson, I will take that interjection, because what this government should be doing is That is why parliamentary scrutiny is im- holding more sitting days. That is what this portant; that is why this debate is important; government should be doing, not forcing that is why it is wide ranging, Senator Cal- ridiculous sitting hours, not coming to the vert and Senator Watson. This government opposition, as it has done in the other place, told the Australian people before the election 1036 SENATE Wednesday, 20 March 2002 that not one of those people on Tampa, not Senator CONROY—Thank you, Madam one of those people picked up offshore, President, I have almost completed my re- would set foot on Australian soil—‘Over my marks. I am willing to bet that Mr Keating dead body’, Mr Howard told the Australian probably attended more parliamentary ques- public. This government said that not one tion times on his reduced roster than Mr person would set foot on Australian soil, and Howard is attending in this six months. And yet what is it doing? It is coming crawling I am not surprised, because this government back into parliament, trying to rush this has a lot it wants to hide; it has a lot that it through so that Australians will not know does not want the parliament and the Austra- they were misled before the election. The lian public to know about. Pacific solution is no solution, and those So, yes, we will cooperate for the orderly refugees that failed the United Nations refu- management of the Senate, because in the gee tests are coming to Australia. There is a end you have to cooperate. But do not think brand-new shiny detention centre being built we are satisfied. Mr Crean has put on record on Christmas Island just to accommodate his frustration at this government’s abuse of them, and when that is overflowing they will the House of Representatives, and on behalf be put in some of the other centres. of the opposition I want to put on record the That is why scrutiny is important and that fact that we are deeply uncomfortable with is why, Labor believes, the government does the way that this government is forcing not want to have more sitting days and through legislation with a lack of scrutiny. I weeks: that would mean more scrutiny and would ask that the government consider its more question times and would expose the position in the future and not force the Sen- government to the sort of detailed forensic ate to sit ridiculous hours because it cannot examination that would show that what it manage its time, saying, ‘We have urgent said it would do before the election is not bills that must go through’; I would ask that what it is doing after the election. That is it have some consideration for the Australian why it is important for the parliament to sit, public, at the end of the day, who deserve a and that is why Senator Bartlett’s concerns parliament that is rigorous and examines are valid. Even though we are supporting this legislation. motion, we do it with a great deal of discom- Senator MACKAY (Tasmania) (9.56 fort: I assure Senator Bartlett of that. We are a.m.)—I will not take up much of the Sen- deeply unhappy that this government is get- ate’s time. I just want to put a couple of ting away with abusing the processes, en- things on the record in respect of the opposi- suring that we are not able to properly ex- tion’s position in relation to this. I also echo amine legislation. Those are all valid points. the opposition’s understanding of Senator It is not to say that, every time we all want to Bartlett’s comments, and I will not retraverse sit for as many days and weeks as we want, it the issues covered by Senator Conroy, other is possible, but we are sitting a record low than to reiterate statements that I made in the number of days—it is now four weeks until Senate last week: this is, in fact, an incredi- the May budget. I am willing to bet that, if bly small number of sitting days for a post- you went away and counted the number of election program. In the entire year, there are question times the former Prime Minister, Mr only 61 days for the Senate to sit, and that Keating, attended after he introduced the does not contrast particularly favourably controversial roster which was so attacked by with other post-election sitting periods. For this government when it was in opposition, example, in 1997 the Senate sat for 82 days, you would find that he actually attended and in 1999 the Senate sat for 79 days; this more question times in that six months than year we only have 61 sitting days. Clearly, in Mr Howard will have attended— anybody’s book, that would be seen to be The PRESIDENT—You are now stray- completely inadequate. ing somewhat from the motion before the We are supporting the proposition, to be chamber, Senator Conroy. helpful and assist, as of course we always do, but I just want to highlight to the government Wednesday, 20 March 2002 SENATE 1037 and those who may be listening that the op- lympic teams competing at the 2002 Salt position thus far in an ordinary sitting fort- Lake City Olympics and Paralympics; night has agreed to additional sitting hours (b) congratulates the Australian Winter last Tuesday night and also last Thursday Olympic and Paralympic teams for their night into the early hours of Friday morning, outstanding effort in achieving the best including a guillotine in relation to the RFA ever result for Australian teams in these legislation. We sat last night; we will be sit- competitions; ting tonight and, potentially, on Friday, de- (c) conveys, on behalf of all Australians, the pending on how things pan out. So we are nations pride and congratulations for the being extremely cooperative. This is more performances of all athletes who directed towards government members in the represented Australia at these games, particularly the outstanding perform- other place: we do not want to hear criticism ances of our medal winners; about the Senate being obstructive. I think we have gone out of our way to assist in this (d) expresses thanks and gratitude to the Australian Olympic Committee, the respect. From the opposition’s perspective, I Australian Paralympic Committee and would also put on record that we would have the team support staff and others who appreciated a leaders and whips meeting to have worked so hard to prepare have a look at the agenda. This is something Australia’s most successful Winter the government may want to take on board. Olympic and Paralympic teams to date; Perhaps that could have occurred earlier in and the week. There are attempts to organise that (e) notes the role of the Commonwealth in today in respect of the remainder of the supporting the preparation of Australian week’s program. That really sums up our athletes for the Winter Olympic and position. We are supporting this, but we are Paralympic Games, through the doing so with the caveats that I have out- Australian Sports Commission and the lined. Australian Institute of Sport. Senator TROETH (Victoria—Parlia- Question agreed to. mentary Secretary to the Minister for Agri- BUSINESS culture, Fisheries and Forestry) (9.58 a.m.)— Consideration of Legislation In response to the remarks by various sena- Senator TROETH (Victoria—Parlia- tors, I would simply like to point out that mentary Secretary to the Minister for Agri- there has been agreement that the Senate will culture, Fisheries and Forestry) (10.00 sit tonight. The government is utilising the a.m.)—I move: sitting days to consider what we consider high priority legislation in the time available, That the provisions of paragraphs (5) to (7) of and we appreciate the cooperation of sena- standing order 111 not apply to the Migration Legislation Amendment (Transitional Movement) tors in dealing with this legislation. Bill 2002, allowing it to be considered during this Question agreed to. period of sittings. Senator Brown—I would like to have my Senator BROWN (Tasmania) (10.00 opposition to the motion recorded. a.m.)—I oppose this move because the Mi- WINTER OLYMPIC AND gration Legislation Amendment (Transitional PARALYMPIC GAMES Movement) Bill 2002 is being dumped on the Senate without adequate opportunity to Senator TROETH (Victoria—Parlia- look at the ramifications of it. It is a classic mentary Secretary to the Minister for Agri- case of why we should be sitting more. This culture, Fisheries and Forestry) (10.00 is another one of those bills that potentially a.m.)—At the request of the Minister for the removes the rights of people who are refu- Arts and Sport, Senator Kemp, I move: gees or asylum seekers in this country and it That the Senate— has not been adequately explained by the (a) recognises the outstanding success of the government. There is a great deal of confu- Australian Winter Olympic and Para- sion about the provisions of this bill, but the wording of it does point to a further clamp- 1038 SENATE Wednesday, 20 March 2002 down on the rights of people who may be in tory of this. I certainly acknowledge the role Australia and certainly to the suspension of of Senator Chamarette in updating, or modi- their legal rights. I do not think that we fying, the way the cut-off motion works but should be dealing with this in a peremptory initially it was an initiative of the Democrats fashion. I believe this legislation should be and my Queensland predecessor Senator Mi- coming on in the budget session so that there chael Macklin back in the 1980s. Senator is due time for the parliament and people in Brown is correct that the principle is basi- the community who are concerned about cally a mechanism to ensure that there is these matters—and there are a large number proper scrutiny. of people in the community and potentially As is often said in relation to these mo- from outside of Australia who are interested tions—Senator Ray often puts it very well in the matter—to consider this legislation and is quite effective at explaining the ra- with much more diligence than would be tionale in relation to decisions such as allowed if the cut-off motion were applied these—the Senate quite regularly moves here. motions to exempt bills from the cut-off. I would also add, as a matter of general Indeed, there is another motion following on principle, that the cut-off motion came from this to exempt 12 other bills from the largely at the instigation of former Greens cut-off, which the Democrats will be sup- WA Senator Christabel Chamarette so that porting. But the very fact that the govern- the Senate could consult with the community ment has moved a separate motion relating to and make sure that pieces of legislation just this migration bill emphasises that it is a spe- like this one were adequately considered be- cific, controversial and special bill. Even fore they were debated and that they could without debating the content of it, which I not be dumped at the end of a session on the am sure we will have an opportunity to do Senate for fast-tracking. This is a classic case probably later on today, the process firstly of where the cut-off motion should be ap- needs to be made clear in terms of what is plied. It is not a matter of whether one sup- happening. ports or opposes the bill; it is a matter of The Migration Legislation Amendment getting clarification and consulting with the (Transitional Movement) Bill 2002 was in- community groups that are involved. I note troduced into the House of Representatives that the bill effectively suspends the legal and the whole parliament only last Wednes- rights of people who have been brought to day, so it has been in the public arena for less this country. It makes the whole of Australia than seven days. Its provisions and what it an exclusion zone as far as those legal rights attempts to do have certainly not been de- are concerned. I, for one, want to investigate bated, flagged or foreshadowed by the gov- that further. I want the opportunity to be able, ernment in any way, so it really is a measure on behalf of the Australian Greens, to consult that has come out of the blue. The bill was with the community groups that will be in- only introduced into this chamber this terested in this. This motion suspends the morning. There was an attempt last week to ability to do that, and I am not going to sup- try and railroad the bill to and back from a port it. Senate committee before people were even Senator BARTLETT (Queensland) aware that it existed, and the government is (10.02 a.m.)—The Democrats strongly op- now trying to push the bill through this pose this motion relating to the Migration week—today and tomorrow—without the Legislation Amendment (Transitional opportunity for proper examination of it. Movement) Bill 2002. It is again worth out- It is no secret, and if people are not aware lining the background to this particular issue now they certainly soon will be, that I and and the way that cut-off motions work for the the Democrats have great concerns about this sake of those listening as well as for senators bill. But more broadly, in the context of this in the chamber, who I am sure are listening motion, there is also a matter of some confu- as well. I should correct Senator Brown who sion about how the bill will operate in prac- may not be aware of the broader, older his- tice and what it will mean not just in the next Wednesday, 20 March 2002 SENATE 1039 couple of months but in the long term. If you proaches, I cannot comprehend why the La- are making dramatic changes, and this is an- bor Party is cooperating with this railroading other dramatic change to the legislation, the by the government of yet another significant, least you can do is have a proper look at it major piece of migration amendment legis- and make sure you know what you are doing lation that will again dramatically impact on to the processes and legal entitlements for the legal rights of asylum seekers. Surely, the asylum seekers and what the consequences least we could do is to have a proper look at will be. it and actually get some feedback about what I would have thought that the government, it is going to mean, not just from legal advo- or at least the Labor Party, might have cates in Australia but from an international learned their lesson last year in the lead-up to perspective. It is an international issue. Apart the election when they allowed all those bills from the impact that it will have on individ- to go through without proper scrutiny. We ual asylum seekers, it is going to have an actually had a bill debated in here and guil- international impact. lotined through while it was still before a Let it be emphasised that when Australia, legislation committee for examination—that as it has been doing, changes the way it deals was the absurdity of that situation. And we with asylum seekers who arrive on its shores, will have the same thing happen again if the those changes are noticed by the whole Labor Party cooperates on a bill that has not world. Because it is an issue that every been properly examined—one that again country wrestles with as to how best to deal deals with modifying the so-called Pacific with it, when we make a significant, un- solution and that again deals with removing precedented change to the treatment of asy- legal rights for asylum seekers—and allows lum seekers and to the legal processes for it to be railroaded through without any dealing with them, other countries look at proper opportunity to examine the conse- that. They say, ‘That is what Australia is do- quences. ing.’ We are making these changes that will Let us forget about the principle for a have international ramifications without even moment; let us look at what is actually going knowing what we are doing—and, quite to happen and what the consequences will frankly, we do not know what we are doing be. Apart from what is contained in the bill in relation to this legislation; none of us that has just been introduced, the government does. It does not matter whether you support is negotiating at the moment to put forward the so-called Pacific solution and the gov- amendments to the bill. They have not been ernment’s approach; the least we can do as a put forward yet; they were not circulated, as chamber is to know what we are doing whilst I understand it, when the Parliamentary Sec- we allow that to happen. retary to the Minister for Agriculture, Fish- This is a classic textbook case of why the eries and Forestry introduced the bill. We are cut-off provision exists and why standing considering a motion to allow debate on this order 111 exists: to prevent government from bill when none of us knows what the final pushing legislation through without adequate version of the bill will be, because there are scrutiny if it is felt to be sufficiently signifi- still very significant amendments to be cant. As I said before, there are another 12 brought forward that we have not seen yet bills that the Democrats will not oppose be- which have potentially enormous conse- ing exempted from this standing order be- quences in the long term. Those amendments cause they are simple bills, they are me- are still being finalised, and nobody knows chanical bills such as appropriation bills, what their wording is. Yet we are expected to they are ones that have already had adequate allow that process to take place and to enable scrutiny, they have been foreshadowed for a the Senate to pass that piece of legislation— while or they are ones that we think are not legislation that is not even in its final form of sufficient importance to require greater yet—by tomorrow. scrutiny. It baffles me. Leaving aside the politics of Clearly, the Democrats’ view—and I can- it, the ideology and the different policy ap- not understand why it is not other people’s 1040 SENATE Wednesday, 20 March 2002 view—is that this migration bill does require ment’s program through in the available greater scrutiny. I find it breathtaking that the time. The consequence of exempting bills Senate would even contemplate allowing like this from the cut-off and preventing such a major bill to be waved through with proper scrutiny—preventing it from having barely a chance to examine what is in it. I decent consideration by a committee, pre- have grave concerns about what is in it, but I venting senators from being able to seek ad- am quite happy also to acknowledge that I vice from experts in the field—is that the am not fully across all the detail of how it only avenue and forum available to us is in will work in practice. this chamber, in the Committee of the As I have said, there are amendments that Whole, when the debate on the bill occurs, have not even seen the light of day yet; I am and we have to ask all of those questions of fortunate enough to have some understand- the minister in the chamber. It takes up an ing of what they are likely to address. From enormous amount of time to ask those ques- that understanding, I know that they are tions that could be asked separately at com- amendments which propose a significant mittee hearings or by way of briefings, in change to what the tasks of the Refugee Re- private meetings or by seeking advice. You view Tribunal will be. There are issues in do not have the chance to do that, so you relation to both of those amendments, neither have to do it in the chamber, which means of which have appeared yet, that need to be that it takes up an enormous amount of time. properly examined. The operations of the The very idea that Senator Ian Campbell Refugee Review Tribunal are regularly ex- and government ministers put forward is un- amined in detail by Senate estimates com- dermined because, by doing this, it will mean mittees, which look at how it can operate that more Senate time will be chewed up on more effectively. It has a big workload. We legislation than would otherwise happen. are not even able to examine what the You are making it harder to get through all amendments will mean just in terms of the the business. There are any number of rea- mechanical operation of that tribunal. sons why this is a particularly bad procedure If we give it the extra responsibilities that that the government is trying to do and are likely to occur with these amendments which, I assume, the Labor Party—they will that have not appeared yet, there are basic speak for themselves shortly—will support. I machinery issues such as what it will mean cannot believe that nothing has been learnt. for the workload of that tribunal. Will it need Let it be made clear again: this is a rerun of more staff? Will it need more money? Will it what happened in the week leading up to the mean longer processing times? The explora- last election when major migration legisla- tion of those machinery matters is funda- tion, making enormous changes that nobody mental, let alone the policy aspects, although knew the consequences of, including the they are important as well. By supporting the government, was rammed through without government’s motion, we will be opening up examination or debate. It was guillotined and the ability of the government to prevent that put in place. Yet that travesty of a process is scrutiny, to prevent those basic questions now being compounded; straight after the from being asked. When we get to the stage election we are doing it again. of considering the legislation, I will talk It is astonishing that, within a month of more broadly about the concerns that I have recommencing parliament, and after all the with that bill, and the counterproductive as- concerns that were raised about that dis- pects for the government in relation to these graceful day in October when the package of sorts of approaches. bills were guillotined through the Senate, we As I was saying in regard to the previous are going to have the same thing again. I can motion, I have a lot of sympathy when tell you that it is almost definitely going to Senator Ian Campbell, in his capacity as the have to be the same thing again, because it is Manager of Government Business in the incumbent upon us, in terms of our responsi- Senate, expresses concern about the diffi- bility as senators, to properly examine this culty of being able to get all of the govern- bill. The Democrats will be taking that re- Wednesday, 20 March 2002 SENATE 1041 sponsibility seriously. If we have no other ment getting through other measures when it mechanism, we will do it in this chamber on foists this sort of rubbish on us? Why should the floor because there are any number of we? If the government is going to treat the questions which must be asked. It is not just Senate with such contempt, why should the a matter of us putting our views on the rec- Senate not reciprocate in its attitude towards ord; the Democrats will do that as well. Still the government? It is a question that the gov- to this day we have not had a proper oppor- ernment needs to consider because we do not tunity to get the government fully on the rec- operate in isolation; all of us operate as a ord about how the bills passed last year will group and try, despite our differing views in operate. I have a motion on the Notice Paper, a policy sense, to enable issues to progress. It which has been foreshadowed there for some has to be a process that all of us undertake in time, about getting a Senate committee to a cooperative sense. examine the consequences of all those legis- Obviously, the government has tabled rea- lative changes last year. That still has not sons as to why this bill is urgent and needs to been done. be pushed through this week. Quite frankly, Forget about whether or not you support the Democrats do not accept those reasons; the policy. People have to work with the they are not adequate. Clearly, this has been policy, whatever it is. People have to work pushed through because the government does within the law, and the hundreds of people not want scrutiny of what it is doing and who work around Australia trying to assist does not want a proper examination of what asylum seekers, people in the community this legislation will mean. It is not an issue and families are still wrestling with how this which has to happen now; it is not something new process is working and what it is going that will not be able to be addressed in May to mean. We still do not know. The govern- when we come back. ment do not even know. The government do It is worth making the point that, again, it not know what is going to happen on Manus is a problem of the government’s own mak- Island or Nauru when those assessments are ing. The government has provided a record finished. This bill is being put through as yet low number of sitting days in the Senate, for another fall-back option for the government. decades, to consider legislation. It is the gov- If it falls over, the government will be able to ernment’s making that has meant that after bring people to Australia and detain them this week we do not come back until 14 while they figure out, again, what they are May; it is not the Democrats’ and it is not the going to do. It is compounding the travesty Labor Party’s. This means we have a two- that occurred last year. month gap before we can debate and pass Without reflecting too much on the con- legislation. Yet the government is expecting tent of the bill which this motion relates to, us, after giving us no time to debate legisla- purely from a procedural point of view, from tion, to say, ‘Given that we haven’t got any a point of principle and our responsibilities, time to debate it, we’d better push it all this is an appalling, counterproductive proc- through without looking at what we’re do- ess. Again I say to the government that I ing.’ It is a ridiculous and contemptible ap- quite genuinely believe we all have responsi- proach, one which the Democrats strongly bility to be cooperative where possible in oppose. It is undermining the role of the par- enabling proper consideration of business liament, the whole purpose of the Senate and and enabling the government to get its pro- the fabric of our democratic system. gram through. I believe the Democrats have Perhaps it is not a surprise that the gov- not frustrated that process, despite our oppo- ernment are doing that. If you look at every- sition to some measures, including very thing that has come to light in relation to the strong opposition to the Regional Forest government in the last month or two, it is no Agreements Bill 2002. When this shonky surprise that they have a contemptible ap- process is engaged in, it makes it much more proach, but it is a surprise that the ALP may difficult to take a cooperative approach. Why be willing to cooperate with that approach. should we be cooperative with the govern- You would think that, after the ‘children 1042 SENATE Wednesday, 20 March 2002 overboard’ approach, the least we could do signed to cope with contingencies that are would be to properly examine this bill to likely to occur before the parliament resumes establish whether whatever the government in May. That is why we are going to agree is telling us about this bill bears up. I do not with the cut-off motion and allow the Senate think it does. The blatant fact is that the gov- to debate it before the middle of May. We ernment, when it comes to refugee issues, accept that the government has the right to will say, ‘Whatever it takes; we’ll just make put before the parliament its proposed solu- things up and cover up.’ This bill goes to the tions for those contingencies. We accept, heart of the whole policy that the ‘children given the time frames, that the bill cannot overboard’ issue was part of. I think the ra- wait. That does not mean that this bill should tionale they are using does not stack up. At not have adequate examination. That is a least let us test it. We are not going to get very different issue. Timing is one point; that opportunity if we support this motion to appropriate parliamentary scrutiny is another exempt this bill from the cut-off. The Demo- point. I am afraid that on this particular occa- crats strongly oppose the motion. sion I have to say that the Democrats’ own Senator FAULKNER (New South behaviour, particularly the performance of Wales—Leader of the Opposition in the Sen- Senator Bartlett, has meant that the level of ate) (10.22 a.m.)—The question before the parliamentary scrutiny that the opposition chair is whether or not the Senate agrees to would have liked to have seen applied to this the cut-off motion applying to the Migration bill will not occur. Legislation Amendment (Transitional Senator Bartlett interjecting— Movement) Bill 2002—in other words, Senator FAULKNER—The truth of the whether the Senate allows this bill to be de- matter is that last week, when a scrutiny of bated before the end of the current sittings of bills report was brought before this chamber, the parliament this week. That is what we are it was Senator Bartlett on behalf of the Aus- talking about: whether the Migration Legis- tralian Democrats who refused leave to allow lation Amendment (Transitional Movement) that report to be brought before the parlia- Bill be debated before the recess, before par- ment and its recommendations agreed to. liament resumes in the middle of May. That meant that the recommendation to refer The principle that should always be ap- the Migration Legislation Amendment plied to these questions when they are before (Transitional Movement) Bill to a Senate the Senate is: if there is genuine urgency. The committee could not be put, could not be minister has outlined the reasons for ur- agreed to, and the committee hearing could gency: because the bill is an integral part of not take place. In my view, that is a disgrace. the government strategy to preserve the in- Senator Bartlett interjecting— tegrity of Australia’s borders and the migra- tion and humanitarian programs. The minis- Senator FAULKNER—I am not going to ter goes on to say that the amendments deal be lectured, and nor should the Senate be with matters that are urgent as some of these lectured, by Senator Bartlett on this matter, non-citizens may be required to enter Aus- because we did need to have a Senate legis- tralia in exceptional circumstances including lation committee look at this bill. It would to receive urgent medical treatment or to have been worth while. It would have been a provide evidence in people-smuggling prose- useful contribution. It would have added to cution. Those are the reasons for urgency the level of scrutiny on this particular bill. It that were circulated by the authority of the would have assisted the public debate. It Minister for Immigration and Multicultural would have assisted the parliamentary con- and Indigenous Affairs, Mr Ruddock. This sideration of this particular bill, but it was debate determines whether we bring the bill spiked by the Australian Democrats. The on for debate this week in the Senate. record stands on this. It is unfortunate that as a result of Senator Bartlett’s deliberate deci- It is true that the opposition has accepted sion to stop a parliamentary committee in- the need for urgent passage of this bill. As quiring into and reporting on this bill—as a we understand the situation, this bill is de- Wednesday, 20 March 2002 SENATE 1043 result of Senator Bartlett’s own actions—that hearing—but we believe, given the record of will not take place. the relevant legislation committee, that it Nevertheless, the principle that should ap- would have benefited the Senate’s debate in ply to bills when you consider the cut-off committee and the public interest if we had motion, whether you debate a bill in a par- allowed that level of scrutiny. We are sorry ticular parliamentary sittings period, does not that could not take place, but let the respon- change just because of dog-in-the-mangerish sibility for that lie where it should, with the behaviour from certain senators. The opposi- Australian Democrats. Let the responsibility tion is consistent in the way it looks at these for the sitting timetable, the pattern of sit- issues: that is, if the issue is urgent, if the bill tings in the Senate, and the inadequate might have application to a period of time amount of time that the government has al- when the parliament is not sitting—in other lowed for parliamentary sittings lie where it words, if the contingencies that it deals with should, with the government. may well occur before the Senate sits Senator Bartlett—You supported it. Why again—then we believe the principle should is it their responsibility? apply that the Senate agree to consider the Senator FAULKNER—You really do not bill. understand how this works, Senator Bartlett. In this case, as a result of Senator It is the government that brings down a sit- Bartlett’s efforts, a parliamentary committee tings program, not the opposition. You say cannot consider the bill because of what the that we are all obligated to work within those Australian Democrats have done. That is the constraints. You are absolutely right on that unfortunate situation, but we deal with the point. We are aware of that. We are aware of circumstances as they arise. We deal with those constraints. We are aware of the urgent bills—as Senator Bartlett and Senator Brown legislation we have to deal with. The opposi- have correctly said—on a case by case basis. tion has to take a responsible and consistent That is the way one should apply the provi- approach to dealing with legislation that sions of this standing order. It is certainly the comes before the chamber. We have done so approach that the opposition takes. in the past and we do so on this occasion. Some of the other criticisms that are made In other words, because the Democrats by the senators on the crossbenches are fair have stymied the opportunity of this bill go- criticisms. There is a very inadequate num- ing to a parliamentary committee and be- ber of sitting days; that is true. There are cause of its urgency—the bill is designed and very few opportunities in terms of the sitting written to deal with contingencies that are pattern for the Senate to consider the ex- very likely to occur before the parliament traordinary amount of legislation before it. resumes in May—we say that parliamentary That has meant that in some areas with im- consideration by the Senate of this bill is portant legislation there have had to be appropriate in this sittings period of the Sen- committee references. Senate legislation ate. It is on that basis that we agree to sup- committees have a very significant amount port the cut-off motion, consistent with the of work to do, but the relevant committee approach that the Australian Labor Party has does not have any work to do on this bill taken both in government and opposition. because it was stopped from providing that Senator HARRADINE (Tasmania) level of scrutiny. (10.34 a.m.)—Lest the listeners—if there are There is no point beating around the bush any—to this debate consider that on these on this—they are the facts of the matter. The issues relating to immigration, refugees and fact is that the Democrats stymied committee the like Senator Bartlett does not do his consideration of this bill. The opposition homework, I want to put the record straight. I wanted to see that committee consideration. do not suggest that Senator Faulkner has so Some will argue that it would not have been reflected upon Senator Bartlett in respect of adequate and we could have had a longer that matter— period for committee hearings. Maybe that is true—one can always extend a committee 1044 SENATE Wednesday, 20 March 2002

Senator Faulkner—I did not suggest he urgent medical treatment or to provide evidence didn’t do his homework; I am talking about in people smuggling prosecutions. the process issue. I don’t know whether he I have had to consider that carefully and, does his homework or not. though I am regularly against the cut-off Senator HARRADINE—Lest anyone motions that sometimes come into this gets that impression, that is not correct. He chamber, on this occasion, for the reason that has a very strong record in regard to this some of the asylum seekers may be disad- matter. He is one who does his homework, vantaged if certain parts of the legislation are examines the matters on their merits, makes not passed by this parliament before the end his decision and ensures that it goes through of this week and continue to be disadvan- his party. Senator Vicky Bourne, with me taged until we sit again in mid-April— and others, did the hard yards and went Senator Sherry—In May. through the detention centres and examined Senator HARRADINE—Mid-May. them. That committee made its recommen- Thank you, Senator Sherry. For those reasons dations to the Joint Standing Committee on I will be supporting the cut-off motion. But Foreign Affairs, Defence and Trade and its let me say very clearly that when considering report was presented in this parliament. the bills the Senate will be even more enti- Senator Vicki Bourne and I added an ad- tled to excise those parts of the legislation dendum to that particular report, and had that which do not fall within the urgency reasons recommendation contained in the addendum that have been put forward by the govern- by Senator Bourne and me been adopted we ment. Let me make it clear to the govern- would not have been seeing some of the ment that I believe that the legislation should problems that we see now in that particular be examined, and let them not be surprised if area. But I believe that on this occasion, with the arguments are raised in accordance with all the best will in the world, the fact that the their own arguments—in other words, Migration Legislation Amendment (Transi- whether this is urgent. Is it urgent to get tional Movement) Bill 2002 was not sent to through this legislation so that some of the the Legal and Constitutional Legislation asylum seekers may be able to enter Austra- Committee is a disappointment. I am not lia for urgent medical reasons, to receive going to reflect on what happened then, but urgent medical treatment, or to provide evi- the fact of the matter is that it was not re- dence in people-smuggling prosecutions? ferred and so we are now in this situation. Okay, when the bill is being debated, let the I have read and had regard to the reasons government say, ‘Yes, we will agree to stick the government has given and which were by the reasons that we gave for the cut-off incorporated into Hansard yesterday. I have motion, and if you want to amend those areas also had a look at the second reading speech and excise those areas that do not relate to of the minister. I have to consider whether those matters then so be it.’ this is really an urgent bill and whether our Senator ABETZ (Tasmania—Special opposition to the cut-off motion moved by Minister of State) (10.43 a.m.)—In closing Senator Troeth is likely to adversely impact the debate, the government believes that the on asylum seekers. One has to consider those Migration Legislation Amendment (Transi- matters and, if they are correct, it would be tional Movement) Bill 2002 is an important unjust, in my view, to not enable the legisla- part of its comprehensive measures to ad- tion to be considered and properly amended dress the ongoing people-smuggling prob- before we get up. What are the situations lem. These measures have given effect to the which could adversely affect the health and government’s determination that unauthor- wellbeing of asylum seekers? The amend- ised boat arrivals should not be allowed to ments in the bill deal with: reach the Australian mainland, instead being ... matters that are urgent, as some of these non- placed in declared countries where their citizens may be required to enter Australia in claims, if any, to asylum can be assessed. It exceptional circumstances, including to receive is important that this bill be allowed to pro- ceed through the Senate as it provides the Wednesday, 20 March 2002 SENATE 1045 ability for the government to manage the Cook, P.F.S. Cooney, B.C. orderly transition of people from declared Crane, A.W. Crossin, P.M. countries into Australia under exceptional Crowley, R.A. Denman, K.J. circumstances. By attempting to undermine Eggleston, A. Evans, C.V. the government strategy in those matters, the Forshaw, M.G. Harradine, B. Australian Democrats will succeed only in Harris, L. Heffernan, W. undermining the government’s efforts to dis- Herron, J.J. Hogg, J.J. courage people-smuggling. I welcome the Hutchins, S.P. Knowles, S.C. support of the opposition and Senator Har- Lightfoot, P.R. Ludwig, J.W. radine for this bill to be brought to urgent Lundy, K.A. Macdonald, J.A.L. consideration in this place and I remain dis- Mackay, S.M. Mason, B.J. appointed that the Democrats continue to McGauran, J.J.J. McLucas, J.E. O’Brien, K.W.K. Payne, M.A. attempt to frustrate due consideration of this Ray, R.F. Reid, M.E. bill. Other honourable senators have referred Scullion, N.G. Sherry, N.J. to the fact that this bill has not been allowed Tchen, T. Tierney, J.W. to go to a Senate committee where members Troeth, J.M. Watson, J.O.W. of the community can have input into it. That West, S.M. is a matter of regret, but that was a Democrat NOES tactic and they have to live with that conse- quence. Allison, L.F. Bartlett, A.J.J. Bourne, V.W. * Brown, B.J. The government is anxious to have this Cherry, J.C. Greig, B. bill dealt with for some of the reasons out- Lees, M.H. Murray, A.J.M. lined. Senator Harradine read some of the Ridgeway, A.D. reasons, which includes allowing these asy- * denotes teller lum seekers and non-citizens to receive ur- Question agreed to. gent medical treatment or provide evidence in people-smuggling prosecutions. I would BUSINESS have thought that that was clearly a matter of Consideration of Legislation interest both for the asylum seekers them- Senator ABETZ (Tasmania—Special selves to be able to access that urgent medi- Minister of State) (10.54 a.m.)—At the re- cal treatment and also for Australia to be able quest of Senator Troeth, I move: to prosecute people smugglers. I would have That the provisions of paragraphs (5) to (7) of thought that on those two grounds alone the standing order 111 not apply to the following Australian Democrats would have been sup- bills, allowing them to be considered during this portive of the urgency of this bill. period of sittings: Question put: Appropriation (Parliamentary Departments) That the motion (Senator Troeth’s) be agreed Bill (No. 2) 2001-2002 to. Appropriation Bill (No. 3) 2001-2002 The Senate divided. [10.50 a.m.] Appropriation Bill (No. 4) 2001-2002 (The President—Senator the Hon. Marga- Financial Corporations (Transfer of Assets ret Reid) and Liabilities) Amendment Bill 2002 Ayes………… 45 Quarantine Amendment Bill 2002 Noes………… 9 Taxation Laws Amendment (Baby Bonus) Bill 2002 Majority……… 36 Taxation Laws Amendment Bill (No. 1) 2002 AYES Therapeutic Goods Amendment Bill (No. 1) Abetz, E. Barnett, G. 2002 Bishop, T.M. Brandis, G.H. Therapeutic Goods (Charges) Amendment Buckland, G. Calvert, P.H. * Bill 2002 Campbell, G. Carr, K.J. Therapeutic Goods Amendment (Medical Colbeck, R. Collins, J.M.A. Devices) Bill 2002 1046 SENATE Wednesday, 20 March 2002

Veterans’ Entitlements Amendment (Gold are standard administrative appropriation Card Extension) Bill 2002 bills. Veterans’ Affairs Legislation Amendment Let us compare that to the migration bill (Further Budget 2000 and Other Measures) which was not foreshadowed at all, was only Bill 2002.. introduced on Wednesday of last week and is Senator BARTLETT (Queensland) still not in its final form. I think the record (10.54 a.m.)—I think it is appropriate to has to be corrected in terms of the statements speak to this briefly, given the debate we that are being made by the government and have just had, to put the whole thing in con- the opposition that somehow the Democrats text. I will not speak for long, despite accu- prevented scrutiny of that bill by committee. sations that may be made to the contrary. The What we prevented was a complete farce Democrats are not simply wanting to waste from occurring which would have not meant time but I think the principle about what we any examination of it. As I said, the bill that are doing needs to go on the record. As we would have gone to the committee is not have just had with the previous issue—this is even the bill that this Senate will be ad- the same standing order that applies—these dressing because there will be a couple of are 12 other bills that the government be- very major amendments that still have not lieves need to be debated in this session for a seen the light of day, that the committee variety of reasons. The reason I speak to would not even have been aware of let alone this—the Democrats are supporting this one, able to examine and of course there would to emphasise that we are not trying to frus- have been no opportunity for public input at trate the government’s legislative process all. and program—is that there is a difference I also think that—again, looking at the between these bills and the others. These are reasons for urgency that are given—that is a range of appropriation bills that are obvi- what the Senate has to consider. When the ously needed to fund government programs, government wants to exempt bills from the and therefore it is appropriate that they may cut-off they put forward reasons for urgency. be passed—although, ironically, included in The reasons put forward for these 12 bills are that is extra money for the Pacific solution quite appropriate. The reasons given for the that the Democrats strongly oppose. migration bill, like lots of things that this The legislation includes a financial corpo- government says in relation to refugee is- rations bill that contains an amendment that sues, are simply a complete fabrication and a was introduced in August last year, so it has farce. People are already coming here for been around for a lot of time, and a quaran- medical treatment. That has happened al- tine amendment bill that enables the intro- ready. The evidence for people-smuggling duction of national emergency measures in trials is not going to occur until later in the relation to animal health. There is also the year. There is no need for that to go through baby bonus bill that was flagged during the this week to enable those things happening election campaign, and a bill for tax laws and, as with so many other things in the relating to measures that were announced in refugee area, the public line the government October last year that have been around for puts is just a fabrication to cover up their real that period of time. There are also therapeu- agenda. Again, I think the Democrats will tic goods amendments that relate to bioter- cooperate with proper processes in this place rorist activities, stemming obviously since and we will not frustrate the activities of the September 11 and other therapeutic goods government in terms of their program but we amendments that link back to the 1998 mu- certainly will not just sit back and let them tual recognition agreement, and a couple of get away with those sorts of fabrications and the veterans bills which also relate to budget falsehoods about their rationale and their measures and other aspects announced dur- agenda. ing the election campaign. So there is a range of things that have all been foreshadowed in The government’s record on refugee is- some way or other for some period of time or sues has been highlighted, since the election, as being built upon a myriad fabrications, Wednesday, 20 March 2002 SENATE 1047 distortions and falsehoods. The ‘children these issues. I challenge anyone on the gov- overboard’ situation is, of course, a classic— ernment side, no matter how bright they are, but not the only, sadly—example of that. I to sit down and absorb 60 pages of complex think it is worth drawing to the Senate’s at- legislation across five bills and try to work tention that any time anything to do with out whether, in fact, every clause is okay. refugees come up the alarm bells, in terms of When you read some of this legislation, not detecting distortions, need to go off very only is it complex but also there is a wish list quickly. The government’s record in this area by departments to get things up that they is so poor that you almost have to assume have been trying to get up for 20 or 30 years. that, until we can demonstrate to the con- However, to its credit—and I have to ac- trary, whatever rationale they use is yet an- knowledge this—the government has even- other piece of fabrication and cover-up. That tually said, no, this chamber will not con- highlights again why we need to have proper sider those five bills, and they will go off for scrutiny in those areas as opposed to the bills what I hope is the proper purpose of a legis- covered under these motions that have been lative committee: not a circus of witnesses around for a while and provide the opportu- coming along, but the minister and depart- nity for them to be passed more quickly if ment officials going through the legislation the government believes that is necessary. So clause by clause, sorting it out. Then, when it the Democrats will be supporting this motion comes back into this chamber in what I think and I think, in speaking to it, it is simply ap- will be June this year, we will not need a propriate to put on the record the vast dis- long and convoluted committee stage; we tinction between these bills and the motion will only be able to target those areas that we have just passed exempting the migration require either amendment or further elucida- bill from the cut-off. tion by the government. Senator ROBERT RAY (Victoria) (10.59 In conclusion, I am not sure how many a.m.)—I just want to intervene briefly to bills have now been exempted from the cut- congratulate the government, albeit reluc- off that has been given to this government; it tantly, on what is not in this motion—and is in the region of 400. The amount that has that is, the five security bills that have now been refused in that time I think is probably gone off to a legislation committee for some less than 10. That just raises the question: mature consideration over the next recess. does the cut-off motion have any useful pur- The problem with those five bills is not that pose? Today probably proves it has because there may be anything objectionable in them a minority group in the Senate wanted to but that the opposition basically got its cop- make points and, I suppose, it enabled that ies of the five bills last Tuesday at 7.30 p.m. group to make those points today. But for a To process all five bills before they were lot of the designers of the cut-off resolution considered at 12 o’clock the next day in the in the mid-1990s, especially the absolute House of Representatives meant that we had zealots in the now government who thought to read them—60 pages of complex legisla- the cut-off motion was the best thing since tion, 60 pages of complex explanatory sliced bread, basically it is a waste of time, memorandum—and have them considered by although occasionally it might have its uses. our policy committee at 10 o’clock that night Maybe the Procedure Committee should look and reported to caucus at 9 o’clock the next at eliminating it as a feature of the Senate. morning. Senator BROWN (Tasmania) (11.03 The view then being indicated to us by the a.m.)—I think Senator Ray might just have government was that these bills were re- argued against himself— quired to be passed through the House of Representatives that Wednesday and sent to Senator Robert Ray—I might have, yes. this particular chamber and passed by tomor- Senator BROWN—by saying that a suite row. Then, when we did not immediately of five bills, which otherwise potentially sign up to that, we were accused of stone- would have been pushed onto the Senate, has walling or not being fair dinkum on some of been set aside for much better consideration 1048 SENATE Wednesday, 20 March 2002 because the weapon of the cut-off bill is sit- according to the government; but, on the as- ting there. sessment of my office, some $90 million— Senator Robert Ray—I don’t think that will go to the plantations industry at the ex- was the reason, but anyway— pense of the taxpayers. Senator BROWN—I am fleshing it out a Just yesterday a State of the environment bit, Senator. Anyway, the Senate does need report was tabled in this chamber, which to defend itself against government pushing shows that the government—and, indeed, the through legislation that cannot be considered Tasmanian government—has a record of adequately, and the cut-off is there to enable failure when it comes to protecting native the Senate to do just that. That is wrong by vegetation cover in the country. One of the the community. When legislation brought in worst environmental indices—and it is rap- here overnight has to be considered, and idly deteriorating—is the loss of native when there is a lot at stake, the community vegetation cover, ecosystems, gene pools and needs time to consider it. The parliament potentially very many species because of this operates on behalf of the community; it is not rapid destruction of woodlands and forests in just for parliamentarians and parties. Indeed, Australia. This relates to woodlands particu- the community comes first. When the gov- larly in Queensland, but at an even greater ernment presents legislation, the community percentage rate to the destruction of thou- has the right to view it, to feed its considered sands of hectares of native forests in Tasma- opinion back to its representatives and then nia for the woodchip industry. What happens to have its representatives put that case on when those forests are displaced? Plantations the floor of the Senate. That cannot be done go in. This legislation will foster that process if legislation is brought in here overnight—or when, just yesterday, the government itself even over a week. We get complicated leg- tabled a damning report saying, ‘This is out islation, and people need to be able to con- of control; it needs to be brought back into sider it. control.’ Here we have legislation which says, ‘Well, put your foot on the accelerator,’ There are occasions when, to meet unfore- when the report says, ‘Put the foot on the seen circumstances, everything has to go on brake’—and the government wants to ex- fast forward. But too often that is not the empt that from the cut-off. Where is the en- case. It is just a convenience for the govern- vironmental impact assessment? ment to push through legislation, which very often has taken it months and months to de- I can foreshadow that there will be debate fine. For the government to put it through the on that matter. I will be moving to amend the parliament within a matter of days or weeks legislation, and I hope that the opposition is not a satisfactory process. I have a clear will be supporting it. In the wake of the re- example of that hidden in amongst this list of port we got yesterday, it is entirely reason- 12 bills, and it is the seventh on the list. In- able that the environmental impact of this nocuously enough, it is the Taxation Laws legislation, which is very big, be known to Amendment Bill (No. 1) 2002. Mr Acting this chamber before it votes for it. This is a Deputy President, I am sure you will have classic case of where the cut-off should not picked up the fact that this applies to planta- be allowed, because there has not been due tions. It gives tax exemptions to plantations consideration. Certainly there is no opportu- of trees around the country, and with that nity for due consideration of the matter by comes the reality that plantations are very the community, so I will not be supporting often put in place of native vegetation and this motion. I may be the only one in here, native forests. In other words, the native for- but I will not support this motion when it ests are cut down and woodchipped so that provides for legislation such as this to be the plantations can be put in with great tax railroaded through this place without due incentives. What does it mean if this law consideration. goes through? For the taxpayers of Australia Senator LUDWIG (Queensland) (11.08 it means that an exemption—of $25 million, a.m.)—The opposition will be supporting the Wednesday, 20 March 2002 SENATE 1049 cut-off in relation to the bills listed in the and then bump it up here and expect that we motion by the Special Minister for State. The would agree to a cut-off. So congratulations Senate should understand that the list in- to the government for its perceptiveness. cludes three appropriation bills which are necessary to be passed this week for the or- Senator ABETZ (Tasmania—Special dinary funds of this government. The legis- Minister of State) (11.11 a.m.)—The debate lative program put down for this week needs on this motion to exempt certain bills from to be progressed. Exempting these bills from the cut-off has been quite interesting. The the cut-off is to allow for the presentation of Democrats used their time to try to explain these bills to the Senate so that the Senate and justify the unjustifiable in relation to a can consider them. It is also worth consider- previous vote. Senators Ray and Harradine ing that, of the bills that are before us in this have used the opportunity to thank the gov- cut-off motion, five of them are scheduled as ernment for something which was not in the non-controversial legislation to be consid- motion. Senator Brown used the opportunity ered later on on Thursday. They have been to speak and try to assert things that were not around for some time—as I suspect Robert true. As we have come to expect from Sena- Ray has said—and have had substantive con- tor Brown, no matter what the topic he will sideration, so they should not come as a sur- wangle in the issue of woodchips. We all prise. Two of them, the Taxation Laws know—especially those of us from Tasma- Amendment Bill (No. 1) 2002 and the nia—that our forests are not harvested for Therapeutic Goods Amendment Bill (No. 1) woodchips but for sawlogs and veneers, and 2002, are also scheduled for debate later in it makes good sense to use the by-product the week. The government has proposed to rather than burning it or simply letting it rot present them to the Senate for consideration, on the ground. Having said that, I appreciate and they will obviously be debated. Senator the cooperation of the Senate and look for- Brown has foreshadowed that there will be ward to the vote. substantive debate on at least one, the Taxa- Question agreed to. tion Laws Amendment Bill (No. 1) 2002, as is his right. We will obviously contribute to STATES GRANTS (PRIMARY AND that debate at the appropriate time. There- SECONDARY EDUCATION fore, from our perspective, the principle in ASSISTANCE) AMENDMENT BILL determining the exemption from the cut-off 2002 remains. These are bills that require consid- Second Reading eration before the end of the sitting. They are Debate resumed from 19 March, on mo- bills that need to pass, that need to be pre- tion by Senator Ian Campbell: sented to the parliament, and, as a conse- That this bill be now read a second time. quence, we will be supporting the motion. upon which Senator Allison had moved by Senator HARRADINE (Tasmania) way of an amendment: (11.10 a.m.)—On this occasion, I will be At the end of the motion, add: supporting the motion by the Special Minis- “but the Senate calls on the Government ter for State for the cut-off of certain bills, to undertake that from 2003 the Com- including the cut-off of the Taxation Laws monwealth will establish a Planned Edu- Amendment Bill (No. 1) 2002. To do other- cational Resource Allocation Committee wise could jeopardise the interests of some to assess applications for funding for the taxpayers, and I do not want to be held re- establishment of new schools in each state sponsible for that. Like Senator Ray, I would and territory, and this committee: like to congratulate the government for some (a) will comprise representatives of the legislation that is not mentioned here, in- Commonwealth Department of cluding any legislation that might be around Education, Science and Training, the place in respect of cross-media owner- government and non-government school ship. It would not have been a wise thing for employing authorities, parents and the government to bring that into the House teacher unions; 1050 SENATE Wednesday, 20 March 2002

(b) shall advise the Minister on the funding schools. The funding mechanism has been of new schools, taking into consideration altered to a standing appropriation consistent the following: with the general recurrent grants program (i) the duplication of educational ser- arrangements. This reduces the likelihood of vices in an area, budgetary shortfalls arising simply as a result (ii) the impact of the establishment of the of difficulty in precisely forecasting, several new school on surrounding schools, years out, the numbers of new schools and (iii) the willingness of the school to their student enrolments. cooperate with other schools in the A number of amendments have been pro- sharing of resources, posed and the Greens have now circulated (iv) the level of determined community some amendments as well. This is very much need for the new school, an ideological debate by those that are op- (v) the financial viability of the new posed to this government. I say on behalf of school, the government that we support a dual sys- (vi) the size of the new school, and tem of education in this country: both a vi- (vii) specific local, community or educa- able state education sector and a viable non- tional needs; and government sector. Indeed, the non- (c) shall provide an annual report to government sector has been used by the cur- Parliament on its assessments” rent Leader of the Opposition for his chil- Senator ABETZ (Tasmania—Special dren; by his predecessor, Mr Beazley; by his Minister of State) (11.13 a.m.)—As I under- predecessor, Mr Keating; and by his prede- stand it, on behalf of the government I am cessor, Mr Hawke. So it seems that the use of now summing up the debate on the States non-government schooling for children is Grants (Primary and Secondary Education okay for the Labor elite who happen to hold Assistance) Amendment Bill 2002. In doing good parliamentary jobs and are able to af- so, I want to thank honourable senators for ford it, but are we going to afford the same their contributions during the second reading sort of option to the truck driver who is not debate. The bill amends the States Grants on a parliamentary salary and who might (Primary and Secondary Education Assis- want to exercise the choice that was exer- tance) Act, which authorised establishment cised by the four Labor leaders that I have assistance funding for the 2001-04 funding just mentioned? period. Establishment grants have been pro- We also know from previous debates that vided to assist new non-government schools the Democrats have a very strong view with costs incurred in their formative years against these non-government schools and in and to enable them to be more competitive fact have vilified them. I refer to a debate with existing schools. that took place on the States Grants (Primary This bill aims to provide the necessary ap- and Secondary Education Assistance) Bill in propriation to enable payment of establish- 1996. In that debate the Democrats made a ment grants. The States Grants (Primary and contribution which said: Secondary Education Assistance) Act 2000 Apart from a government ideologically bound clearly establishes an entitlement to estab- to private education, who else came forward to lishment grant funding for new non- support this bill? The Coordinating Committee of Jewish Day Schools … government schools. I hasten to add that these new non-government schools are Then we were given a list: schools that have been registered and ac- …the Australian Association of Christian cepted by the various state governments Schools, the Anglican Schools Commission, the around the country as having achieved ap- Christian parents controlled schools and the Lu- … propriate standards, deeming them appropri- theran schools. These groups support the bill ate for registration. The bill effectively codi- Later on in the Australian Democrat contri- fies the eligibility and entitlement for each bution we as a government were told: new school to these grants. There is no If you want to go down in history as being part change to the existing entitlements of of a government which places the interests of Wednesday, 20 March 2002 SENATE 1051 small, fundamentalist and extreme schools at the would make such a big difference and be- expense of Australia’s public schooling system, cause it would make such a big difference a then by all means vote for this bill. genuine electorate officer in Mr Simon If those sorts of vilifying and inappropriate Crean’s office was prepared to make very comments were made about any other com- strong representations to Dr Nelson asking munity group within our society, the head- that this money be made available. Unfortu- lines would have been quite stark and I am nately, he was oblivious to the fact that the sure there would have been calls for the res- reason the money was not being made avail- ignation of certain people, but it seems to be able was that the federal member for Hotham okay to denigrate Jewish schools—anything was deliberately ensuring that this legislation to do with the Judaeo-Christian ethic seems would not get through and therefore the to be okay to denigrate. funding for which the electorate officer was We on the government side say that these asking would not be forthcoming because of schools have a right to exist. These people the federal member’s deliberate actions. have made a contribution to society and they It is very interesting that the Labor oppo- have a right to exercise choice in education sition moved a number of amendments to the for their children. It is interesting that some bill. When the bill was first introduced it was of the schools that are currently waiting for referred to a Senate committee, and the La- funding and waiting for this legislation to bor Party voted for these principles some 15 come through are part of a diverse group and months ago—on 7 December 2000, I think, include the Australian Islamic College in the when it got carried. Now, 15 months later, marginal Labor seat of Swan. I hope Mr they are voting against these same principles. Wilkie, the member for Swan, explains to his What has changed? I suppose the change has electorate why he and the Labor Party are been that we now have the federal member trying to withhold funds. Indeed, within that for Hotham as the leader of the Australian same electorate of Swan there is the Wood- Labor Party. The ex-ACTU boss is giving thorpe Drive Secondary School, and in my Australians a taste of what a Labor govern- home state of Tasmania there is the Peregrine ment would do in relation to diversity and School in the electorate of Franklin and educational choice for parents—the sort of Trinity College in the electorate of Lyons— choice he exercised himself and, might I add, all have been denied funds. was able to afford with or without govern- Most revealing of all has been the frantic ment assistance but which the vast majority phone call from Ben from Bentleigh. Some- of Australians could not afford without gov- body rang up the office of Dr Nelson, the ernment assistance. Minister for Education, Science and Train- The Labor amendments are going to add ing, just the other day and made some very layers of administration and complexity to strong representations about the Chabad what is a very simple payment formula. By Jewish day school—one of these nasty Jew- seeking to prescribe the criteria for what the ish day schools, as the Democrats refer to Labor Party believes is a new school, over them, or ‘extreme’ day schools. They were and above what is already in the States very concerned that moneys that they had Grants Act and the administrative guidelines, been promised had not been delivered. Ben Labor has shown that it cannot let go of its from Bentleigh happens to be an electorate old discredited and unfair new schools pol- officer who works for the federal Labor icy. I note that the Australian Democrats are member for—you guessed it—Hotham, the suggesting by their amendments that we go Leader of the Opposition. Ben from his of- back to that discredited policy. Under the fice phoned to inquire why the school was Labor amendments, only six of the 58 still having to wait for its extra $6,000. schools that are currently waiting for funding To these small schools, $6,000 goes a long and that this bill will assist would retain eli- way, but this stark example shows how mean gibility for the current legislative entitlement spirited the opposition to this legislation is. of $750 per student. That just shows how That $6,000 for this Jewish day school these amendments will gut these proposals, 1052 SENATE Wednesday, 20 March 2002 and it shows the mean spiritedness of the her amendment. Of course, above and be- amendments and of the Labor Party’s attitude yond that, the states are now absolutely roll- to these small new schools that, I submit to ing in GST money. The Labor state premiers the Senate, have the right to exist and the say, ‘Terrible thing, this GST,’ but they grab right to government support, on the basis that every single last cent of it. All the money all the state Labor governments around the from the GST goes to the states. They are country have approved these schools for now so rolling in GST money that the state registration. There is nothing wrong with governments, if they are so inclined, can these schools. They have met all the educa- spend a lot more money on state education. tional and other standards required of them The proof of that is, of course, the Queen- by the state Labor governments all around sland Labor Premier Mr Beattie announcing Australia, but the federal Labor Party is say- a $60 million package for state education, ing, ‘We have this ideological hatred of pri- which he linked back to the GST funding his vate schooling and, therefore, we will not state has received. That puts the lie to other allow the funding to go through.’ Labor premiers, such as Jim Bacon in my We have Australian Democrat amend- own home state of Tasmania who says that ments as well, and the first amendment pro- somehow the GST has hurt Tasmania. In posed deals with physical and emotional fact, all the states are getting more money. wellbeing in our schools. I think that is a Various states are using their money for dif- very substantive issue and a very relevant ferent purposes. The Labor Premier of and important one; but, as the Australian Queensland, Mr Beattie, is spending it on Democrats know, that is being discussed at a education; Mr Carr, the Labor Premier of ministerial meeting shortly and, as the states New South Wales, says he can use it to cut have prime responsibility for state education, payroll tax. You have some Labor premiers it is appropriate that any action taken by the at least honest enough to say that the GST federal government in this area be in con- money is rolling in. sultation with the state governments. Dr Nel- The state governments have to make their son has committed himself to undertaking decisions and determine their own priorities that contact and communication with the and they cannot then pass the buck. At the state government schools, and indeed with end of the day, state government schools are the representative organisations of the non- called that because they are a state govern- government schools, to see if a uniform ap- ment responsibility. As a federal govern- proach can be adopted. We do not dismiss ment, we contribute. We assist them, and we the Democrats’ general philosophy or ration- have now assisted them even further with the ale in this. We just say that it is a bit too new tax regime and the GST moneys that early; let us work out a strategy with all the will flow to the states. As a government, we states and then move forward together. I have would be willing to look at a review of the already mentioned that the Democrats’ other program and its operation: one would expect amendment would return to the old new that of a government that is dynamic and schools policy. continually seeking to improve public ad- Some comments have been made about ministration—education funding is no ex- state government education, and those com- ception in that regard. But any review that ments ignore the fact that an extra $238 mil- we would undertake would be in the terms of lion was provided for government schools in the next quadrennium. the 2001 budget. Of the specific schools In summary, I urge the Senate to pass this budget measures in the 2001 budget, 87 per bill unamended. The 58 schools awaiting cent of the funding was directed to the 69 per their full entitlements, many of which serve cent of students in the government sector. On poor communities, have waited far too long a proportionate basis, this is $50 million for their payments. Labor are punishing the more than government schools could expect students and families of these schools for no on the basis of their enrolments and $20 mil- apparent reason other than for their own lion more than Senator Allison is seeking in ideological indulgence. There is a very stark Wednesday, 20 March 2002 SENATE 1053 list which outlines how Labor members have Leader of the Opposition! It would be a good let schools down. The federal Labor member opportunity now, on the strength of Ben’s for Swan has let down two schools in his representations to Dr Nelson, for Mr Crean electorate, the federal member for Franklin and the Labor Party to alter their attitude to has let down the Peregrine school, the federal this bill and to pass it. Labor member for Lyons has let down Trin- The ACTING DEPUTY PRESIDENT ity College, the federal member for Hotham (Senator Crowley)—The question is that the is letting down the Bentleigh Chabad Jewish amendment moved by Senator Allison be Day School, and the list goes on. These 58 agreed to. schools are all around Australia. Question agreed to. Why were these schools started? Because the mums and dads of the kids believed the Original question, as amended, agreed to. sort of education these schools offer was the Bill read a second time. best for their children. Are honourable sena- In Committee tors going to vote and deny parents the right Bill—by leave—taken as a whole. to that choice or provide some assistance in the exercising of that choice? I especially Senator ALLISON (Victoria) (11.33 appeal to Labor senators because they have a.m.)—by leave—I move Democrats now had a continuum of federal Labor lead- amendments (1), (2), (R3) and (4) on sheet ers—the last four—who have all, on their 2440 revised together: substantial parliamentary salaries, exercised (1) Schedule 1, page 3 (after line 5), before item the option of private education. But they 1, insert: somehow do not want the truck driver or 1A After paragraph 15(b) those on social welfare benefits to exercise Insert: that same option for their children. We (ba) The prescribed requirements for strongly believe that a private education or performance information to be non-government education should be not reported in accordance with only the domain of the wealthy but also, to paragraph 15(b) shall include a be a real choice for parents, an affordable requirement to report annually and exercisable choice. on progress being made to im- plement the detailed plan setting In the closing moments of this second out the procedures for dealing reading debate, I will just say this. I still re- with the physical, sexual and call how, as a lawyer dealing with unfortu- emotional abuse of students re- nate family breakdowns, I often saw a situa- quired by section 15A. tion where a mum—usually it was a mum— (2) Schedule 1, page 3 (after line 5), before item did some part-time work for no other reason 1, insert: than so that the family could afford the 1B After section 15 school fees, because they thought the best start in life they could provide for their chil- Insert: dren was an education. So mum and dad had 15A Specific condition: responsibilities of agreed to make a sacrifice to look after their States in dealing with abuse of students kids and provide them with an education. (1) A further condition is that a State must These mums and dads all around Australia do each of the following not later than are urging the Senate to pass this legislation. a date or dates determined by the Min- There are 58 new schools awaiting fund- ister for the purposes of each para- ing—even one in the Leader of the Opposi- graph: tion’s own electorate, which he is denying (a) provide to the Minister a report funding to. Unwittingly, his own office was on the administration of such legislation as is administered by so convinced of the urgency and need for the the State relating to the protec- money that the electorate officer rang the tion of children and young per- federal minister for education for the money. sons in government and non- How embarrassing! How humiliating for the government schools; 1054 SENATE Wednesday, 20 March 2002

(b) provide to the Minister a detailed (8) This section is not intended to exclude plan setting out the procedures or limit the concurrent operation of any for and responsibilities of gov- law of a State or Territory. ernment schools in dealing with (R3) Schedule 1, page 3 (after line 5), before item the physical, sexual and emo- 1, insert: tional abuse of students, either within or outside schools. 1C After paragraph 23(b) (2) A plan provided in accordance with Insert: paragraph (1)(b) must: (ba) The prescribed requirements for (a) indicate the ways in which gov- performance information to be ernment schools will seek to cre- reported in accordance with ate an anti-abuse environment; paragraph 23(b) shall include a and requirement to report annually on progress being made to im- (b) indicate the means by which plement the detailed plan setting government schools will com- out the procedures for dealing municate with students about with the physical, sexual and their rights in relation to abuse; emotional abuse of students re- and quired by section 23A. (c) indicate how the plan will be (4) Schedule 1, page 3 (after line 5), before item implemented; and 1, insert: (d) be reviewed at least every four 1D After section 23 years by the Minister, with the first review being completed be- Insert: fore the expiration of the 2008 23A Specific condition: responsibilities of program year; and relevant authorities in dealing with abuse (e) be approved by the Minister; and of students (f) be in accordance with the stan- (1) A section 18 agreement must require dards set out in the regulations to the relevant authority to provide to the this Act. Minister not later than a date deter- mined by the Minister a detailed plan (3) A further condition is that a State must setting out the procedures for and re- have enacted legislation requiring the sponsibilities of schools for which it is protection of children and young per- the relevant authority for the purpose of sons to receive grants in accordance this section (relevant schools) in deal- with this Act. ing with the physical, sexual and emo- (4) A further condition is that a current law tional abuse of students, either within of the State must require that teachers or outside schools. promptly report instances of abuse of (2) A plan provided in accordance with students of which they become aware subsection(1) must: in the course of their employment. (a) indicate the ways in which the (5) The requirement in subsection (4) to relevant schools will seek to cre- report may be either a requirement to ate an anti-abuse environment; report to the police or to a relevant and government department or agency. (b) indicate the means by which the (6) The Minister shall consult with the relevant schools will communi- relevant State Ministers about the ap- cate with students about their plication of the legislation referred to in rights in relation to abuse; and subsection (4) to other employees of schools in addition to teachers. (c) indicate how the plan will be implemented; and (7) The conditions in this section are to apply to payments made to a State from (d) be reviewed at least every four the beginning of the program year years by the Minister, with the 2003. first review being completed be- fore the expiration of the 2008 program year; and (e) be approved by the Minister; and Wednesday, 20 March 2002 SENATE 1055

(f) be in accordance with the stan- tailed plan that sets out: the procedures for, dards set out in the regulations to and responsibilities of, schools in dealing this Act. with the physical, sexual or emotional abuse (3) The conditions in this section are to of students either within or outside the apply to payments to a State from the school; the means by which schools will seek beginning of the program year 2003. to create an anti-abuse environment; the (4) This section is not intended to exclude means by which schools will communicate or limit the concurrent operation of any with students about their rights in relation to law of a State or Territory. abuse; and how the state or relevant authority Before getting on to those amendments, I do will implement the plan in schools under its need to respond to Senator Abetz’s remarks jurisdiction. Our amendments will require about the debate in 1996. I did not at any that the plan be approved by the minister and stage ever talk about nasty Jewish day be consistent with standards set out in the schools. That is a ridiculous assertion. It is regulations to the act. Under the amend- also true to say, Senator Abetz, that it was ments, state legislation must require the the Jewish day schools that complained bit- mandatory reporting of abuse by teachers. terly about the SES funding model that this Such reporting is not, as I understand it, government developed because it does not presently required by legislation in Western benefit them. It is little wonder they need the Australia, but it is required elsewhere. establishment grants; they are doing very In addition, the amendments require the poorly out of the funding mechanism that states to provide the Commonwealth minister your government introduced. I did talk about with a report on the administration of legis- small and fundamentalist schools in that de- lation relating to the protection of children in bate— government and non-government schools. Senator Abetz—And extreme schools? States and relevant authorities will be re- Senator ALLISON—and the minister quired to report on implementing the plan for does not deny there are small schools and the purposes of the national report on fundamentalist schools. In fact, the Mahar- schooling. These conditions would apply to ishi comes to mind, but I cannot remember payments to a state and to a relevant author- the names of some of the other new schools. ity from the beginning of program year 2003. I am sure the minister is not denying there The minister has argued, as Senator Abetz are both small and fundamentalist— has today, that MCEETYA is a better forum for such a national approach. I point out that Senator Abetz—And extreme? MCEETYA does not have any direct power Senator ALLISON—schools in the non- over non-government schools; it is a consul- government sector. There is nothing wrong, tative forum of education ministers. Senator Abetz, in pointing that out, just as MCEETYA cannot require non-government there is nothing wrong in listing the number schools to develop a plan related to how of schools that supported the legislation. schools deal with the abuse of students. What That does not amount to vilification in my MCEETYA can do is to try to gain agree- view and I am sure that view would be ment of the states to address the issues shared by others in this place. through registration requirements. However, But I will go to the amendments in hand. that will take some time, if it is ever agreed, The purpose of these amendments is to en- and the Democrats say that it is important sure that all students, whether they are edu- that the Commonwealth act on this issue cated in the private or the public sector, are quickly, particularly in the current circum- covered by a detailed plan to deal with child stances. abuse that conforms to a minimum accept- Some concerns have been raised in rela- able standard. The amendments will require tion to the conflict with state regimes; how- the states and the relevant authorities in gov- ever, our amendments allow states and rele- ernment and non-government school sectors, vant authorities to develop plans that are in as a condition of funding, to submit a de- accordance with state legislative regimes. 1056 SENATE Wednesday, 20 March 2002

Except for the requirement that the current We know that the damage caused by abuse is laws of a state have mandatory reporting of serious. It is especially serious when that abuse is abuse by teachers—which all states except perpetrated by people in positions of authority WA have, as I mentioned—there is no other and influence over their victims. requirement on the states to change their Given the way the Anglican Church throughout child protection regimes. Some may say, in the world is structured, it is necessary for each response to this, that this issue should be the Diocese to adopt policies and procedures. How- domain of the states, as Senator Abetz has ever, General Synod can adopt framework legis- lation and encourage every Australian Diocese to said. I want to outline the fact that the states do the same. do have various guidelines for dealing with abuse in schools, as do some non- We agree with that. The reasoning is sound government school systems. However, we and, for that reason, we are saying that the found that these vary in quality and content federal government can and should take the and in how prescriptive they are. Moreover, initiative on this issue. There needs to be many of the guidelines seem to be more re- more than just encouragement and more ac- active than proactive in that they cover what tion than just leaving it to the states and to teachers and other staff must do if they sus- individual private schools. pect abuse but do not cover as much what The fifth meeting of the Ministerial Coun- schools should do to create a safe environ- cil on Education, Employment, Training and ment for children. It is also true that some Youth Affairs, or MCEETYA, way back in schools do not have any plans in place at all, July 1996 agreed to the development of a but we cannot know what the extent of that national strategy in schooling to prevent pae- is. dophilia and other forms of child abuse. Al- I asked the library to do a survey of school most a year later, in 1997, the sixth meeting policies and guidelines, in both government of MCEETYA announced that a national and non-government school sectors, regard- strategy had been adopted, but there is still ing the management of allegations of child no publicly available information on the de- sexual abuse within schools. It is not possi- tail of this strategy, nor are there any reports ble to know how many schools are taking to subsequent meetings of MCEETYA on the this issue seriously, and, from our review of operation of the strategy. those plans, there is a great variety in quality, It appears that this process, five years content and in how prescriptive they are. I down the track, has become bogged down by think it is also fair to say that guidelines are delays relating to privacy legislation and by implemented with various degrees of effec- the ability of individual jurisdictions to re- tiveness and seriousness, and a lot of schools lease details of teachers who have had con- are so strapped for cash that they cannot af- victions for child abuse. It seems to me that ford to put the necessary training and proce- this focus on black-listing teachers is ham- dures in place. pering the process and, I would argue, should I have said that there are problems out only ever be part of a much more holistic there, but there are also some extremely good approach to the problem. Abuse by teachers, practices in dealing with bullying. Excellent in terms of the number of cases, is probably work is being done in some states and in only a small fraction of the total. Schools some schools to address abuse, and I will must deal with that effectively and deci- talk about that in more detail shortly. Abuse sively, but they are also asked to tackle the in schools has not been eliminated and, for issue of abuse of students by other students. I this reason, it ought to be a matter of national point out that that is a very serious problem importance instead of being handled, as it is indeed in our schools. Very often teachers at present, in what is best described as a will be the first to know about abuse outside piecemeal fashion. the school, and this too must be properly dealt with by teachers and schools. Dr Peter Carnley, Primate of the Anglican Church in Australia said just last month: At the beginning of the school year last year, a help line was set up in New South Wednesday, 20 March 2002 SENATE 1057

Wales and it was flooded with calls in the sults in changing the atmosphere into one first few days. The New South Wales De- that is a much healthier environment for stu- partment of Community Services received dents. Bullying has virtually been eliminated. 73,000 reports of child abuse in the year Even the bullying tendencies of teachers 2000, and 16 per cent of those came from have changed dramatically in the period in schools. The number of children reported which this program has been in place. That abused or neglected in Australia was a stag- program has now been extended to 30 gering 107,000 in 2000-01. South Australia schools in the area. So convinced are the did a study that found the overall cost of principals and the secondary schools that abuse and neglect in South Australia alone receive these students that schools have was $345 million. found the money necessary to implement the In 1999-2000, schools in Queensland re- program. I would argue that this kind of pro- ported 2,093 cases of suspected abuse, which gram should be implemented across the was a significant increase on the previous country. year. This increased reporting is largely due Last year we were appalled at the sexual to the training of teachers. According to the assault or ‘bastardisation’, as it was called, Queensland Catholic Education Commis- that took place at Trinity Grammar boarding sion, teachers are now much clearer, as a school. Alarming as that was, the denial by result of that training, about what action the school administration that there was a should be taken. Last year, the Kids First culture of bullying at the school, despite very Foundation called for more funding and for a strong evidence in the courts that this was the national focus on child abuse prevention and case, and the failure to take action to address treatment. They criticised the various stan- it were quite serious and, in fact, made the dards of service delivery and the absence of situation worse. Bullying can take many national funding for child abuse programs. forms. Peer pressure can lock children in to They noted there was the confusion amongst stereotypical behaviour. There are plenty of professionals who came into contact with examples of children who have been sub- children about when they should report sus- jected to bullying going on to have depres- pected child abuse and to whom. sion. Studies have been done which demon- Professor Kim Oates, who has received strate that this is an urgent and serious prob- national and international awards for his lem which we should be addressing. child protection work, said last year that It is time for a national approach. I am Australia needed to take the problem more pleased that the minister has written to the seriously. He said a lack of coordination and state ministers responsible for education. I incompatible state and federal bureaucracies too have done that and I expect them to see has led to the extent of child abuse being value in this approach. We cannot allow the underestimated. He also said that research time wasted in the last five years to go on for shows that the higher the self-esteem of the another five years and perhaps another 10 child, the more likely they were to resist years after that. It is necessary for the federal abuse and that this was an area schools government to take the initiative on this. should be working on: helping to make chil- We have done an enormous amount of dren strong and confident. work in consulting with groups about our As a former teacher, I see bullying as one amendments. We have support from ACSSO, of the most serious but preventable forms of the state school organisation parents group; child abuse in our schools. It can start very from the education union; from the principals early in a child’s school experience and have associations; and from individuals who have a devastating and lifelong impact on indi- contacted us at various times on these issues, viduals. I regularly visit the Quarry Hill Pri- particularly on bullying. I am convinced that mary School in Bendigo, which is a very a national approach is the way to go. It is small primary school that some years ago set necessary to change cultures not just in bu- up a pilot program called ‘Solving the Jig- reaucracies, state governments and systems saw’. That program has had spectacular re- but also to bring this back down to the school 1058 SENATE Wednesday, 20 March 2002 level. School communities have to talk about sympathetic to the wish of parents to im- this issue to find proactive ways of dealing prove their children’s education by sending with it. That ought to mean that the federal them to private and specialty schools where a government should be interested in funding range of educational options are made avail- the programs that are necessary, and I would able. The problem is that, with special fund- like to see that. At this stage, if we can take ing going to the private school system to do this national approach—it would not be in that, the opportunity for the public school place until next year—schools would have to system to do exactly the same thing is di- do this in order to receive funding from the minished every time. federal government. That is an appropriate In talking with teachers in the public carrot and stick approach to this issue. I school system I have become more and more would argue that, rather than being side- distracted and distraught on their behalf at tracked by peripheral issues, it is time we the incredible load that is put on them as, took a proactive approach. It is time to see piece by piece, the load is lifted off those in what we can do about the abuse of children, the private school system. Teachers feel the not just abuse by teachers—that is probably a pressure of increased classroom sizes, and very small percentage of the total—but abuse the necessity for them to deal with students by other students and abuse outside the the private school system will not take— home. those who can be unruly and disruptive—and Senator BROWN (Tasmania) (11.48 the constriction in their ability to provide a.m.)—I support the amendments that Sena- education, in the wider sense, is very tor Allison has been flagging. The Greens harrowing. It is not just a matter for concern; will also have amendments to the States it has become harrowing. The government Grants (Primary and Secondary Education and the opposition—insofar as it has Assistance) Amendment Bill 2002. We do supported this process down the line—need not support the bill in principle. As far as we to ask themselves how far you can push the are concerned, there is a very clear rule: professionals in the public school system. If public education ought to get public funds in the public school system were being this country and should provide to the fullest adequately funded, it would be able to extent the education needs of every citizen as compete with the private school system—not they are growing up, without fear or favour. in the provision of famous sporting facilities, However, this serial legislation, including the swimming pools, theatres and adventure legislation now being presented to the par- education; the whole range that some private liament, is developing a two-tier system of schools advertise to attract public school education where, by using public largesse, students—in simply being able to provide the private school system is building on its the sort of real and happy education ability to already provide facilities and op- experience which flows from happy teachers. portunities which the public system simply Is the government aware of the strain being cannot provide. put on teachers in the public school system? The bill goes further in entrenching and I note that Senator Abetz said that this is a building on the disadvantage. I note that the matter for state governments. Surely that is minister says that some 60 schools are not correct. The very fact that we are dealing awaiting the advantage they will get from here with legislation to disburse taxpayers’ this legislation, but it does not pass my no- money into the private school system says tice that there are nearly 7,000 schools in the that it is not a matter for state governments; public school system in Australia which are it is very much a matter for us in the federal going to lose simply because the legislation arena to deal with. And it is not as simple as will give some $7 million in the first in- the government would have it. The public stance, and $12 million all up, to the private school system is funded at the state level and school system. That money should be going the government believes it is then the privi- to the public school system where it is so lege of the federal parliament to put cream sorely needed. I understand and am very on the cake of the private school system. The Wednesday, 20 March 2002 SENATE 1059 public school system is reliant on the state Senator Allison’s amendment—which I hope but, more and more, the private school sys- gets up—has been dealt with. We believe it tem gets a direct run through to the people is very important that we do not foster a who ultimately design the tax laws and dis- system whereby those students who have burse the public moneys in this nation: those difficulties, and therefore very often present of us in this chamber and in the House of difficulties for not only teachers but also Representatives. their fellow students, are dumped out of the This legislation is going to further desta- private school system into the public school bilise that mix between private and public system. education. It is going to greatly disadvantage If the private school system is going to get public education. The total amount that can the largesse that is inherent in this legisla- be paid to the private school sector is unlim- tion—which has been increasing with almost ited. While there are estimates here, the every piece of legislation relating to educa- precedent raises the spectre of a big rush of tion going through this parliament—it must moneys to new low and moderate fee schools not be able to cherry pick and further dis- out in the public arena and the segmenting of criminate not only against students but also the school population according to location, against the public school system. If there are the family’s financial status and the academic difficulties with the implementation of the interest of parents. I think the latter point is Greens groundbreaking amendment, I would very important. What do we do for those like the opposition, in particular, to look at students who quite innocently have parents how those difficulties might be gotten who do not have their children’s academic around. I do not think there is another way. I interests at heart? I think there is a role for make a special appeal to the opposition to the state to be involved to ensure that those regard very seriously the amendment that is students are not disadvantaged simply be- coming up shortly. It is incredibly important. cause they have uninterested parents. Any- We are not saying: let us discriminate body involved with the school system will against the private school system, which is know what a problem that is—that very often being advantaged by the money that is you inherit not only the difficulties and dis- flowing through this legislation. We are advantage but also the attitudes that are ex- saying: let us not allow the private school pressed in the home. The school is the place system, which is being advantaged by this for us, as an egalitarian society, to ensure that allocation of public moneys, to discriminate children are not disadvantaged and to at least against the public, against children who are try to balance the life situation for students. seeking an education who may be difficult, But I am afraid that, instead of doing that, who may have some disadvantage, physical what is happening here is that we are further or otherwise, who may not be able to keep up weighting the scales against the interests of with other children in their peer groups or already disadvantaged students. who may need some special attention. Let us There is the risk that, as more families are not have them discriminated against simply enticed into the private school sector, public by being refused entry at the outset to the education will be left with those who are private school system or when they get into most difficult to educate. That is not just a the private school system and are found to be risk; that is a reality—it is occurring right needing special attention—or more particu- now and it is compounding the disadvantage larly are found to be disrupting or difficult as of the public education system. The Greens far as the learning opportunities of their fel- are putting forward amendments to help en- low students are concerned—let us not have sure that does not happen. A very interesting them simply put into the public school sys- and groundbreaking amendment that the tem where they compound the inequality of Greens are putting forward is that the private education. That is not on. But it is happening school system may not refuse entry to stu- now and it is time that we moved to redress dents on the basis of their academic or other that. difficulties. I will be talking about that after 1060 SENATE Wednesday, 20 March 2002

If the private school systems are going to properly-running economy where you have be advantaged by the coalition and the Labor the public sector looked after by government Party in terms of financial largesse, let the and the private sector free of government private schools not in turn discriminate restriction and free of government largesse. against the public schools and their students Of course, nobody is going to suggest that in by locking out or expelling those who prove here because this is a classic example of the to be difficult. Let the burden across the private sector wanting the government to use board be fair in giving help to those students taxpayers’ money to its advantage. (Time who most need it and ensuring, indeed, that expired) they stay within the education system and Senator CARR (Victoria) (12.03 p.m.)—I therefore become productive citizens when it would like to express the view of the oppo- comes to their time to leave school. sition in regard to the amendments currently We will be moving amendments—and I before the chair. Before doing so, can I just will speak a little more about this further indicate that at the point at which the propo- on—which also ensure that nearby public sition was put before the chamber that the schools are not disadvantaged and have an bill be taken as a whole I did seek to jump up appeal opportunity when a private school is but another senator was called. As a conse- established which is going to affect their en- quence, these amendments were moved, rolments and therefore their viability. We which prevented the normal process being will be moving an amendment—and this is a followed: that is, a number of general ques- very difficult one to frame, but the idea must tions being asked about the administration of be brought forward here and the Australian the program. I would suggest, if it is appro- Greens are doing it—to give nearby public priate, that I deal with these amendments and schools just compensation. Public schools then come back to those general issues. take 70 per cent of the students; they should The issue before us is the issue of sexual get 70 per cent of the funding. It is a pretty abuse, and it is difficult, I would have simple rule and we have that embodied in thought, for any senator here to oppose our amendments. The Greens also want to measures that would seek to prevent the sex- maintain the limit on the total amount of ual abuse of students in this country. It is Commonwealth funds going to private beyond my comprehension that anyone in schools, because if you do not do that you this chamber would be seeking to oppose inherently disadvantage the public school such a notion. However, concerns have been system. raised about the administration of such a Finally, the matter of choice has arisen measure. I think that it is possible to see here—that in some way or other by ensuring those as a separate issue. I think our ap- that the public school system is not discrimi- proach is to separate out the issue from the nated against you trammel choice. Of course administration of the program. In particular, you do not. Private enterprise offers oppor- we emphasise our implacable abhorrence of tunities in the open market to everybody, but the sorts of practices that we have seen in when it comes to education, which is neces- recent times in some schools in this country. sarily compulsory and which is crucial to I could go into the details of some of these everybody’s life opportunities, we need to because, frankly, I have been disgusted by make sure that the choice in the public edu- the sorts of events that have been revealed in cation system is second to none. That is not some of our most established and prestigious the case at the moment. Funding is crucial to centres in the school sector. that. If people want to have private alterna- I do not believe anyone here would for a tives to the public school system, let them moment be able to disagree with that re- pay for that. Let them not socialise the sponse. We do not actively oppose or block funding of private education to give them- proposals which deal with this issue to safe- selves an advantage. I think that is what is guard the wellbeing of children at schools, happening here. This legislation is counter to no matter what the nature of the school. We the principles of a free and open economy, a also take the view that there is a role for the Wednesday, 20 March 2002 SENATE 1061

Commonwealth in these matters. In fact, within the states, dressed up as states rights, given that this parliament is appropriating which essentially prevents a national ap- $24 billion of public moneys for the educa- proach being taken on critical issues such as tion of children across 10,000 schools in this this. Notwithstanding that, the best way to country, we clearly have a responsibility in proceed is to seek agreement, in my judg- regard to these matters. I think the notion ment. This is a point that Senator Abetz has that you can somehow or another just punt some trouble understanding because essen- difficult issues to the states is one that has tially he has a 19th century view of education outlived its usefulness. The constitutional or essentially an antediluvian view of what arrangements that occur in this country are education is about. I am only too sure that he constantly evolving in practice. We know is more than happy to cultivate the funda- how things are done in this country in terms mentalist religious sect vote in this country. of changing the constitutional arrangements: We know that. I wonder if it extends to the it is either by formal referendum or by Muslims. Is that the view you take: is it just agreement. We come back to this question Christians you are interested in or is it the about how the Commonwealth can influence Muslims as well? I take the view that we policies of state governments in regard to have a responsibility to cater for all children schools education. and to protect all children irrespective of the This government, of course, would not religious views of their parents. We will sup- hesitate for a moment in its bid to tell the port this amendment, but I say to Senator states that there should be benchmark testing. Allison that there are clearly a whole series It does not hesitate for a moment to suggest of other issues that need to be pursued. that there be a whole range of conditions on Senator ABETZ (Tasmania—Special Commonwealth money. The resources will Minister of State) (12.12 p.m.)—What an be made available to facilitate compliance amazing performance from Senator Carr just with the Commonwealth policy framework. then. I make no apology for being supportive While you could disagree with the individual of and representing Christian fundamental- arrangements entered into, and I always re- ists; in fact, I seek to represent all Austra- serve the right to question whether or not a lians. In this list of schools that the Labor particular program is appropriate, the princi- Party does not want to fund is the Australian ple has been long established here that Islamic College, Kewdale. The Labor Party Commonwealth moneys can be paid to edu- has the audacity to suggest that somehow the cational authorities, be they public or private, Liberal Party and I would seek to fund only and that in return accountability mechanisms Christian schools. The list in front of Senator will be imposed and there will be condition- Carr puts the lie to it. He knows that what he ality on those arrangements. Otherwise, how was asserting is not correct, and he has to do we account for the fact that this parlia- explain to the people of Australia what he ment currently appropriates $24 billion for has against Christian schools, Jewish the schools program? In return, the states are schools, Islamic schools, Steiner schools— obliged to fulfil a whole series of require- and the list goes on. ments. Senator McGauran—He is anti religion. That being said—and we will be support- Senator ABETZ—He is anti anything ing this amendment—I think there is also a that might be slightly diverse from his Karl role for the Commonwealth in regard to its Marx view of the world. This government consultative responsibilities. That is an issue and I will not disenfranchise any community that does need to be taken up. We have a group that has passed the test of the state situation at the moment where the states have Labor governments that entitles them to reg- differing regimes in practice. Some states ister a school. After the state government has already have moved in the direction that said, ‘This institution is worthy and deserv- Senator Allison is proposing; others have ing of registration as a school, having passed not. One of the great problems of our federa- all the tests,’ then it is appropriate, in the tion is the railway gauge mentality that exists 1062 SENATE Wednesday, 20 March 2002

Liberal-National Party view of the world, to controlled schools, the Anglican schools, the provide some funding. Lutheran schools or, indeed, the Islamic Let us put the lie to some of the assertions schools? Which fundamentalists is she actu- that have just been made. Senator Brown ally talking about? Quite frankly, the easiest said in his contribution that he wanted the 70 way out of this for Senator Allison would be per cent of schoolchildren to get 70 per cent to apologise for that hurtful term ‘extreme’. of the funding. In fact, in the last budget 87 Let her name and identify half a dozen or 89 per cent—in the 80s—of the funding schools that she would describe as extreme went to 69 per cent of the students. So, to use and then possibly go to a parent meeting of Senator Brown’s Australian Greens logic, the that school association and explain why she state government sector of schooling would believes that that school community is so get less money. Everybody knows that, if the extreme that they do not deserve funding. non-government sector were not in the mar- We need to keep in mind that the state ketplace, the state sector would have such a government has already registered these huge financial burden that it could not cope. schools as being appropriate, as having the The burden on the Australian taxpayer would right curriculum, as having all the right re- be a lot greater than it currently is. Indeed, quirements to be registered as a school. Yet the taxpayers of Australia are being saved Senator Allison and the Democrats seek to money by the mums and dads who make a stigmatise and, as a result, those sort of stig- private contribution to their kids’ education. mas attach. If you describe the mums and As a result, the state does not have to pick up dads of Australia who send their kids to par- the full tab. ticular schools as being fundamentalist and I will return to what Senator Allison said extremist, guess what happens? The kids in in her contribution: she admitted to calling the street pick up that sort of language and schools ‘small and fundamentalist’— vilify and alienate the kids that go to these so-called extreme schools. I would have Senator Allison—Some are. thought that that sort of language from the Senator ABETZ—Some are; I accept Australian Democrats especially was highly that, Senator. But Senator Allison studiously inappropriate. The Democrats are all for di- avoided the use of the word she did use and versity except when it does not happen to that word was ‘extreme’. She then had the suit them. That is the contradiction in their audacity to move an amendment saying that contribution. kids should be kept safe from being abused. I Senator Brown in his contribution talked happen to agree with Senator Allison that about a two-tier system of education. It is not kids should not be abused, but their mums a two-tier system of education, it is a parallel and dads, our fellow Australians, should also system of education—it is side by side. For not be abused in this place for wanting to Senator Brown to try to run the old hoary send their children to what Senator Allison argument that this is the cream on the cake describes as ‘small, fundamentalist and ex- for the private system, clearly he does not treme schools’. move in the circles that I move in. Let us look at the word ‘small’. What is Senator Brown—I do agree with that. the matter with a small school? Nothing whatsoever. In Senator Allison’s contribution Senator ABETZ—Senator Brown agrees she contradicted herself and went on to tell that he does not move in the circles that I us about a small school that she visits in move in where mums and dads make huge Bendigo. By Senator Allison’s own defini- personal sacrifices to send kids to non- tion there is nothing wrong with being small, government schools. They make huge sacri- unless of course you happen to be funda- fices and Senator Brown acknowledges that mentalist and extreme as well. Senator Alli- his contribution in this debate is not based on son now has to explain to this place what she any communication or discussion with those means by fundamentalist. Does she mean the parents and, as such, he has disenfranchised Jewish day schools, the Christian parent- those in this debate—the 30 or so per cent of students and mums and dads—who send Wednesday, 20 March 2002 SENATE 1063 their kids to non-government schools. It is ment, I say to Senator Allison that very interesting that about 25 per cent of MCEETYA is a consultative group, as she people on social welfare benefits with chil- has indicated, but that does not mean that dren exercise the option of sending their you cannot talk with them, agree with them children to a non-government school. But and then unanimously implement a proposal that is the cream on the cake for Senator and a solution that everybody agrees to. We Brown: these 25 per cent of families with can use the stick if need be, but our first port kids who are on welfare payments should not of call would be to seek to cooperate. be given the cream on the cake as well. This We will not be dividing on a number of government says, unashamedly, that the sorts amendments as they come up during this of choices exercised by the four previous debate in order to save time, but that does not Labor leaders in this country should also be mean that we are not vehemently opposed to the entitlement of parents on welfare bene- the amendments that are being put. I also fits. We make no apology for this legislation want to place on the record that in the com- and the stance we have taken on it. mittee stage as soon as somebody speaks it The state governments have a clear con- allows somebody else to get up and it is ba- stitutional responsibility for state schools. sically an open-ended debate. As a result, the The federal government of course makes a small parties often abuse that privilege and contribution and that contribution to the state get up time and time again in relation to the sector has increased in real terms as no state same topic and play a tag team. We, as the has increased its funding to state education. government, are anxious to have this legisla- The reason why we have been able to in- tion go through. Therefore, my future contri- crease the funding to state schools and non- butions in relation to amendments that are government schools is because of our eco- proposed will be very limited. We, like the nomic management. We have paid back La- mums and dads of the 58 school communi- bor’s debt and instead of paying billions of ties right around Australia who are sweating dollars in interest we now have that extra on this legislation getting through, are very money for health, education and Aboriginal anxious to see this legislation get through welfare. As a result, each of those areas has without delay. received increased expenditure. Instead of Senator ALLISON (Victoria) (12.24 making interest payments we are now in- p.m.)—This is going to be a very long debate vesting in our children’s future—in their indeed if Senator Abetz keeps making the health and education. This government says kinds of provocative statements that he has that those parents who want to exercise just made because I will be forced to stand choice are entitled to some government as- up each time and defend our position. I will sistance. At the end of the day, it is still go to the last point, first: Senator Abetz says cheaper for the Australian taxpayer to help that the government is vehemently opposed the non-government sector than it would be to these amendments. That surprises me, to throw all the children onto the government Senator Abetz, and perhaps you should sector. check with Minister Nelson before proceed- Senator Brown talked about difficult stu- ing with that line of argument. It is my un- dents supposedly not being required to go derstanding that the government is very in- into the state system. In Senator Brown’s clined towards these amendments— view of the world there would be no private Senator Abetz interjecting— schools, so where would those students be in any event? In the government sector. Where Senator ALLISON—You had your go, Senator Abetz. Maybe you should leave the is the logic in that assertion? floor to me at this point in time. In fact, Unfortunately, Senator Brown, the Labor Minister Nelson sent a copy of those Party and the Democrats are blinded by an amendments to the state ministers and, as I ideology or, indeed, blinded by the marching mentioned in my contribution, I did as well. I orders provided to them by the Education think it is more a question of timing and Union. In relation to this particular amend- whether or not the states should agree to this 1064 SENATE Wednesday, 20 March 2002 before proceeding, which is the issue at Lutheran schools, I talk with every part of hand, and not a question of vehemently op- the government and non-government school posing the amendments as you said just a sectors. Let me tell you, Senator Abetz, that couple of minutes ago. there is widespread support in that sector for The other issue I would like to talk about these amendments. Quite a few schools in is the fact that every time there is a debate on the non-government school sector—I will education in this place, Senator Abetz, you not name them in this instance; I will let get up again and claim that the Democrats them speak for themselves—have said that have vilified non-government schools. There they have been totally frustrated by this could be nothing further from the truth. MCEETYA process, they see it as going in the wrong direction and that 5½, nearly six, Senator Abetz—Just apologise and it will years is too long to wait for a national ap- be over. proach to this problem and some sort of em- Senator ALLISON—I have no intention phasis on the part of the federal government of apologising for something I did not say, to getting it right. It is a serious matter and it Senator Abetz. I am not going to apologise disappoints me, Senator Abetz, that you so for what you said, that is for sure. Another readily resort to provocative remarks. point I would like to make is that Senator The TEMPORARY CHAIRMAN Abetz challenges me to name schools which (Senator Ferguson)—Order, Senator Alli- are extremist and fundamentalist. That is the son, you should address your remarks oldest trick in the book, of course, Senator through the chair and not directly to Senator Abetz. You know, as well as I do, that I have Abetz. no intention of naming any school at all. Senator ALLISON—I apologise, Mr Senator Abetz—You can’t name them. Temporary Chairman. Senator Abetz should Senator ALLISON—Senator Abetz says understand that those kinds of provocative that I cannot name them. The government remarks are not conducive to sensible debate cannot name them either because it has no in this place. I wish he had confined his interest in this matter. The government is comments to the amendments before us to- happy to fund whatever school manages to day instead of dragging up the good old pass state government registration. As we all chestnuts from years ago and twisting them know, if you have a set of toilets and you and turning them to make it sound as though promise to abide by the curriculum you will the Democrats are somehow opposed to cer- get state registration. To suggest that there tain kinds of schools in the non-government are not any small, extremist or fundamental- sector. That is a ridiculous thing to say. I ist schools in our system is absurd to say the have said in this place many times that public least. education in this country is fundamentally Senator Abetz—Name them. important and that your government has ig- Senator ALLISON—You, quite frankly, nored the need for better funding for public do not know. There are plenty of schools that education and has allowed the sorts of poli- I could suggest, simply from the names of cies to be implemented which have seen non- the schools, the Commonwealth government government schools very much favoured look at to see the sorts of practices operating over government schools in terms of re- in them. To come in here and suggest that sources. none of the non-government schools that the Pretty much every week I see the results government is aware of is small, extremist or of those kinds of policies in our government fundamentalist is ridiculous. sector. As Senator Brown said earlier, a lot of I also do not stigmatise non-government teachers and a lot of schools are struggling in schools. In fact, I pride myself with having a a way that they have never done before in very good, close working relationship with terms of dealing with the students they have non-government schools, which must disap- to teach. A lot of that can be sheeted home to point you, Senator Abetz. I talk regularly the fact that your government is disinterested with the Christian schools, I talk with the in assisting and making sure that government Wednesday, 20 March 2002 SENATE 1065 schools are well resourced. Senator Abetz, I committee with how many children have invite you to keep up this kind of debate. If been expelled from the private school system you do, I will be forced to keep defending over the last five years and could he acquaint our position and I think that it is not a sensi- the committee with what the reasons for the ble way to proceed if the government wants expulsions were? Is there a breakdown? Has to get this legislation dealt with, as I under- the government got any knowledge of the stand it does. matter? Secondly, what happens with chil- Senator BROWN (Tasmania) (12.30 dren who are expelled from the private p.m.)—For the record, Senator Abetz said to school system? If he does not have specific Senator Allison that she should apologise for answers on that, I would like him to tell the that hurtful word ‘extreme’. It is a word that committee what the options are for children he has used on more than 40 occasions in who are expelled from the private school making accusations in this very chamber. He system. Where do they go to? should set the example rather than expect Senator CARR (Victoria) (12.34 p.m.)—I other people to do it. I support the amend- would ask the minister again: can he now ments. confirm that this is in fact the fourth figure Question agreed to. the department has presented for this bill? There was the first figure for the forward Senator CARR (Victoria) (12.31 p.m.)— estimates in 2000 when the package first There are a few questions that arise in regard emerged. There was the appropriation bill to the States Grants (Primary and Secondary figure last year of about $9 million. Towards Education Assistance) Amendment Bill the end of the year my recollection is that 2002. I was wondering first of all if the min- there was a figure of around $14 million and ister could explain to the committee: on what there is a figure now of about $11.9 million. basis does the Commonwealth estimate the My estimate is that over the period since four-year financial impact of this bill? 2000 we have seen increases in the estab- Senator ABETZ (Tasmania—Special lishment grant figures—for a new program— Minister of State) (12.32 p.m.)—I would as- of something like 260 per cent in the first sume that it was on the best estimates avail- year through to about 200 per cent in the able to us. When you make these sorts of second year and 150 per cent or thereabouts predictions they have to be based on what are in the third year. We have a doubling of the anticipated growth rates et cetera. That is the estimates from the time the original program basis on which these figures have been de- was introduced—in the space of one trien- termined. nium a doubling of the figure—and we have Senator CARR (Victoria) (12.32 p.m.)— in fact four separate figures. I ask again: on The financial impact statement indicates a what basis does the government make the figure of $11.9 million for the four-year pe- calculation in the financial impact statement riod, which of course is substantially more that this bill will have an impact of $11.9 than previous figures that have been indi- million or can you confirm that in fact this is cated to us on the three occasions this bill an open-ended budgetary commitment? has been presented to us, so we are seeing an Senator ABETZ (Tasmania—Special increase of about $2 million on last year’s Minister of State) (12.35 p.m.)—The projec- appropriation bill. First of all, I will ask you tions are based on a average of 28 new a direct question. Can you confirm that the schools each year with an average of 92 stu- funding commitment under this bill is in fact dents per school. That is the basis of calcula- open-ended? tions. Those calculations are based on best Senator BROWN (Tasmania) (12.33 estimates. If the demand is higher and more p.m.)—While Senator Abetz is considering schools are registered by the state govern- his reply to Senator Carr on that question, ments—and that is a very important limiting and I know the lunch break is coming up, I factor on the potential exposure: if the state want to foreshadow another question that he government regimes around the country be- might get an answer to. Can he acquaint the lieve that they are appropriate schools—then 1066 SENATE Wednesday, 20 March 2002 they of course will benefit from this pro- fees of the schools generally have been in- gram. In relation to the question asked by creased to a dramatic extent. Brighton Senator Brown, he should go back to the Grammar School has had an 8.1 per cent parliament where he started life, and that is increase; Carey Baptist Grammar, 10.6 per the state parliament. He knows full well that cent; Eltham College, 7.9 per cent; Firbank expulsions and matters of that nature are Anglican School, nine per cent; Haileybury dealt with under state legislation and state College, 6.5 per cent; Presbyterian Ladies regimes. Rather than addressing the question College in Melbourne, 7.7 per cent; Scotch to me I think Paula Wriedt, the Minister for College, 8.1 per cent; and the famous Wesley Education, would be a better port of call. College, 19 per cent. We are not talking Senator CARR (Victoria) (12.37 p.m.)— about poor schools in this case. The annual The answer the Special Minister of State has fees at Wesley College are $13,500 per child just given me is quite extraordinary. He is per year, with an increase in fees of 19 per now talking about an average of 28 schools cent. There are not too many truck drivers and 92 enrolments. The average size of new able to afford that sort of money. non-government schools was, up until last The claim that the government made that year, 42 students. The figures I quoted before they are in fact opening up these elite private were from memory, and I want to correct schools to the working class has proved to be them. Under this program, the establishment bogus. Their claims with regard to the estab- grants will increase by 350 per cent in 2001, lishment grants are equally bogus. We have 260 per cent in 2002 and 100 per cent in here a new form of middle-class welfare by 2003. Of the 49 schools that were listed up this government. They cannot give tax cuts, until last year—and I now see the figure is so they hand out massive subsidies to a going up to around 58—there were at least group of people who are quite well off—in 13 schools in which there were quite serious particular, to schools such as Wesley Col- problems with the guidelines that currently lege, which has achieved a huge windfall of exist. There were issues of new campuses, $3.8 million per annum under this package. I split schools, schools changing their names, find these claims made by the government schools simply extending their operations to doubtful. Equally, we find doubtful the gov- include preschools and other such things, and ernment’s claims that the States Grants (Pri- schools that are really businesses—not for mary and Secondary Education Assistance) profit. There is a range of issues here that go Amendment Bill 2002 has a financial impact to the administration of this program, and of $11.9 million, given that this is the fourth this is what concerns me. As I see it, and on time they have come before this parliament the basis of the material we have had pre- with a financial impact assessment and it has sented to us in estimates, there has been a been wrong. massive blow-out in this program—a dou- I would ask—and I know a break is com- bling of the estimates. That indicates to me ing up—whether there are any schools under that the planning capacity of the department this proposed program that have been found is, at best, open to question. I think that is a by the Commonwealth to be newly eligible reasonable assessment. for recurrent grants since 2001 but do not What troubles me as well is that in the appear on the already published list of 58 context of the claims made about the general schools eligible for establishment grants. Are schools program—and I do want to keep to there any further schools to be added to that the specifics where I can—we were told that list? if there were a massive expansion in the gov- Senator BROWN (Tasmania) (12.42 ernment’s support for particularly elite cate- p.m.)—I will be brief in order to give the gory 1 schools there would be a control-on- Special Minister of Sate the opportunity to the-fees regime. We were told that we are answer that very important question from depriving poor schools of support, but in the Senator Carr. I want to flag that I will be context of the government’s failure to plan asking further questions about the expulsion properly, to estimate in a reasonable way, the problem. It is not a matter just for state gov- Wednesday, 20 March 2002 SENATE 1067 ernments; it is a matter that is being raised Nigeria, Mr Obasanjo, to suspend Zimbabwe here in this chamber. As an amendment to from the Commonwealth of Nations. I had this legislation, it is very much a matter of the good fortune to be invited by the Com- this federal legislation, and the minister has monwealth to be an independent observer at an obligation to give the information that is the most recent elections in Zimbabwe. It is available in his department to the committee the second time I have observed elections or to explain why he has no information, if there, having led an Australian delegation in that is the case. This is a very important is- the year 2000 to observe what were then the sue. I will be pursuing it after the luncheon parliamentary elections when, for the first break. I will leave it at that. It will give the time in over 20 years, a significant opposi- minister time to get the committee the infor- tion party was able to present itself to the mation. I will now allow the minister the elections. opportunity to answer Senator Carr’s ques- The deterioration of human rights in Zim- tion. babwe, since the year 2000 when I was last Senator ABETZ (Tasmania—Special there, has been alarming. Violence and in- Minister of State) (12.43 p.m.)—In the short timidation were widespread. We have had time remaining, let me indicate that no new reports over the past 18 months of this vio- schools have been approved as yet for 2002, lence and intimidation, but to see it first-hand and if Senator Carr were across his topic he was an experience that I will not forget. I would or should have been aware of that. In will give one example. At midnight on 2 relation to this massive blow-out, as Senator March, just outside Guruve, a very small Carr describes it, he is basically saying that town in the far north of Zimbabwe near the the mums and dads of Australia are appre- Zambia-Mozambique border, where I spent ciative of, and embracing, the federal gov- most of my time, some brave person had the ernment’s policy. The pent-up demand that nerve to paint a ‘Movement for Democratic was denied by the draconian legislation of Change’, an MDC slogan, on the road. Fol- the previous Labor government having been lowing that, a local gang of ZANU-PF para- broken, the mums and dads of Australia are military youths moved into a village on the now seeking, with their own private re- outskirts of the town and abducted eight sources, to establish schools. I know some young men they decided were responsible for people seek to describe that in derogatory this terrible travesty. They were taken by terms, but we on this side celebrate diversity. truck to a base camp, blindfolded and sys- We support and celebrate the mums and dads tematically beaten and brutalised. I made of Australia having choice in education. If contact with three of these men in a safe they want to exercise that choice, and as long house in Harare. They relayed to me first- as the state governments approve of the hand the shocking details of the ordeal that schools that they want to operate, we are not they were put through. What really amazed going to discriminate against them in the me was that this was on the Wednesday prior fashion suggested by my colleague opposite. to the elections. On the Friday, two days Progress reported. later, one young man was determined to re- turn to Guruve to act as a polling agent for MATTERS OF PUBLIC INTEREST the opposition at the election. The DEPUTY PRESIDENT—Order! It The images that I have brought home from being 12.45 p.m., I call on matters of public my two weeks in Zimbabwe as a member of interest. that Commonwealth observer group will Zimbabwe continue to haunt me. My time was spent Senator FERGUSON (South Australia) largely in the two constituencies in the Zam- (12.45 p.m.)—It gives me a great deal of besi Valley and on the escarpment near the pleasure to speak today, a day when our border with Zambia and Mozambique. I Prime Minister in London has been able to spoke to participants in the election process get the agreement of both the President of from all sides of the political spectrum and I South Africa, Mr Mbeki, and the President of observed polling at many polling stations in 1068 SENATE Wednesday, 20 March 2002 the region, as well as observing the process known as the national youth training pro- of counting the ballots. The criteria of free gram. This national youth training program and fair elections were breached in every trained people in torture. Members of this possible way. The three basic tenets of a group appear to have replaced the so-called democratic election process are freedom war veterans as the leading perpetrators of from violence; freedom of movement and politically motivated violence, intimidation association; and freedom of expression. On and abduction during this campaign, espe- each of these counts, in the 2002 presidential cially in the rural areas. Our observers met elections in Zimbabwe, it failed. In the dozens of victims of this group and saw northernmost constituencies that I covered, enough other direct evidence of their activi- no campaigning by the opposition was al- ties to be seriously concerned. Members of lowed, no opposition rallies were permitted the youth group appeared to operate mostly and no information other than the govern- at night and in uniform. Its members set up ment controlled propaganda was available. It illegal roadblocks and intimidated opposition was therefore of little surprise to me that supporters, confiscating national identity President Mugabe polled more than 85 per cards of known or suspected MDC support- cent of the vote throughout the region. ers which they needed in order to vote, and There are numerous accounts of violence forced many from their homes and areas of in Zimbabwe. I will quote just a couple residence. They are but a few examples of more. On 18 February, in the full view of the the many that were put by our group in our advance team of the Commonwealth’s ob- debriefings, which took over six hours, of the servers, a group of about 1,000 ZANU-PF 60 members of the Commonwealth observer youths armed with clubs ran amok through groups. the central business district of Harare, at- I fear for the short-term future of Zim- tacking MDC officers and supporters. On 22 babwe and its people. This beautiful and February, a group of 200 youths armed with proud country that was once the breadbasket stones and clubs attacked the MDC officers of Africa is rapidly becoming a basket case. in Kwekwe in the Midlands while members As a direct consequence of the takeover and of the South African observer team were settlement of white owned farms under having a meeting with local MDC officials. President Mugabe, Zimbabwe has gone from Members of our team met numerous victims being a food-exporting nation to being one of politically motivated violence. Many had which is currently importing staple produce. bruises, scars and axe wounds all over their The rule of law is almost non-existent. State bodies. One victim that was observed had the sponsored violence is the order of the day. letters MDC carved in his back with a sharp The economy is in absolute tatters, with un- knife. Another victim was chained alive in a employment at 60 per cent and no separation coffin and immersed in water and threatened of powers or effective application of the rule with drowning while being repeatedly inter- of law. The official exchange rate is currently rogated about the identities of local MDC 56 Zimbabwe dollars to $US1 when at the operatives. Members of our team in the time of Mugabe’s assent to power in 1980 Midlands met a woman who had been gang- one Zimbabwe dollar bought $US1.48c. Al- raped by ZANU-PF youths because she was though the official rate was 56 Zimbabwe the sister of an MDC member. Members of dollars to $US1, we were able to buy 300 our team were particularly disturbed by the Zimbabwe dollars to $US1 from a change number of politically motivated murders—I bureau just around the corner from our hotel. think there have been estimates of up to 150 Against this background, I have never met people in the last 18 months—especially of so many brave people, both black and white, MDC activists and supporters. who are determined to fight for their demo- Numerous complaints were made to cratic rights against such terrible odds. The members of our group about the activities of two weeks I spent in Zimbabwe have had a a paramilitary youth group trained by the profound effect on me, and I hope the spirit government under what is superficially of these brave people and their drive for Wednesday, 20 March 2002 SENATE 1069 democratic government is not diminished by cause we had one extra day of counting be- this electoral experience and that Zimbabwe fore we were able to start writing and proc- can regain the prominent position it held in essing the report. Laurie Oakes said: southern Africa 20 years ago. By that stage the observer group has not pro- I was fortunate to be on this delegation gressed very far at all in its detailed consideration, with Julie Bishop, Kevin Rudd and Bill paragraph by paragraph, of what turned out to be Gray, an ex-electoral commissioner. By way a 46-page document. of explanation, I want to make some com- Nothing could be further from the truth. On ments about an article written by Laurie the Thursday we went through the draft, and Oakes in the Bulletin this week in which he we put all the paragraphs in place so that it puts a point of view which refers to both me was a complete draft to put before the com- and to the member for Curtin, Julie Bishop, mittee the next morning. Mr Rudd was not and in doing so he uses information totally present all the time anyway, I might say. supplied to him by the shadow minister, Mr When the work was being done on the Kevin Rudd. I preface that by saying that I Thursday, he seemed to spend most of his do not believe that a Commonwealth ob- time outside the room on the telephone, server mission of any sort is the place for contacting Australian media outlets to make either a minister or a shadow minister in any sure he was well heard in Australia. In fact, government or parliament throughout the the basis of the report was finalised on the Commonwealth. Ministers and shadow min- Thursday night. It was put to the committee isters have policy decisions to make. Some- on the Friday morning. We all worked in times those are made before, pre-empting different working groups: some on the law, any announcements that might be made in some on the poll and the count, some on the the future. In this case, the Labor Party’s basic registrations. We all worked in differ- shadow foreign minister called for sanctions ent areas, and it all came together on the Fri- on Zimbabwe in January and then at a later day. stage asked to become a member of the In fulfilling his own ego, Mr Rudd then Commonwealth observer group. Of course, claimed that he was responsible for half the in the newspaper controlled by the govern- useful recommendations put into the final ment in Zimbabwe, it was written up in very report—something I refused to believe—and bold print that the Australians were sending he said it was done only at his insistence. I an observer who had already called for sanc- happen to know that there were a number of tions and how impartial would his observa- people from black countries in Africa like tions be. We were invited as independent Botswana and Gambia, from the Caribbean people to be part of the Commonwealth ob- states and, particularly, from Guyana, who servers group. What really disturbs me about were pushing very hard for a stronger state- Laurie Oakes’s article is that he never rang ment than the one that had been presented. me or Julie Bishop to confirm whether any of They spoke very strongly in favour of that. the things that were said in letters written by After we left at midday, although Mr Rudd Mr Rudd were true. says they did not finally conclude until 11 Julie Bishop was in Zimbabwe for three o’clock that night, there were in fact very weeks, I was there for two weeks and Kevin few changes made to that document. I have Rudd was the last to arrive and had planned copies of the draft and I have a copy of the to be the first to leave, on the Monday before final document, and there are almost no the count had even taken place. He then ex- changes in the final document from the draft tended that to Wednesday and then to Thurs- we made the day before. We were assured day, and he finally came home on the Satur- that would be the case. day; and he then had the hide to say, ‘Senator Mrs Bishop and I could not get onto a dif- Ferguson and Julie Bishop had to return to ferent plane to come back to Australia. We Australia around midday on Friday,’ when were flying to Perth, and I was then flying on we had always planned to come home on to Adelaide, and it was impossible to delay Friday. The report was somewhat late be- our departure to any later than the Friday 1070 SENATE Wednesday, 20 March 2002 lunchtime. For Laurie Oakes to have written establishment, but it did question the effi- up in the Bulletin these misleading comments ciency of establishing a whole separate court by the Labor Party’s shadow minister for structure. What we now have is 16 federal foreign affairs, without at least telephoning magistrates to replace a greater number of either Julie Bishop or me to confirm whether judicial registrars of the Family Court of or not the facts were accurate and to find out Australia, whose numbers have been greatly whether there was any truth in the statements reduced. The issue that now confronts us is Mr Rudd was making, does him no credit. To whether this is a change for the better. Is take them at face value and put them down there a better system now in place to meet as fact without making any attempt to verify the needs of the clients? I think the jury is whether or not the statements were true beg- still out on this. Clearly there is no turning gars all description. Laurie Oakes is suppos- back in the short term. The task we now face edly one of the senior journalists in this is to make the system work more efficiently place, and he has been for some time. If he is and cooperatively to ensure that justice ad- going to be selective about who he talks to ministration is better served in the federal and if he is going to promote one particular system. Is the government up to the task? I cause, he does himself no favours and he think not. Is the slogan of this government certainly does the media in general a dis- real or rhetoric? Considerably more work service. needs to be undertaken to ensure the service My time is nearly up. I can only reiterate fulfils its tasks. There is no mention of this in that this was an experience that was physi- the government’s portfolio priorities an- cally exhausting and emotionally draining nounced on 5 February 2002. You would for me. It is one that I will never forget for have expected more from the address. the rest of my life. I wish the people of Zim- In my view the Federal Magistrates Serv- babwe well. ice can and will serve the public effectively; Attorney-General: Address to Senior however, the service will increasingly be Officers required to do more and varied work while I suspect the government will starve it of re- Senator LUDWIG (Queensland) (1.00 sources. The government has said that the p.m.)—I want to take this opportunity today magistrates will have responsibilities for a to comment on the Attorney-General’s ad- range of issues, including bankruptcy and dress to senior officers in the Attorney- immigration, and I suspect a few more areas General’s Department. I do not agree that the will be heaped upon them as well. However, coalition’s promises of making it easier for I imagine the obligation placed upon the Australians to solve their legal problems is service is to reduce the Family Court delays anywhere near achieved. The coalition has while maintaining the proper administration not demonstrated that their reforms of the of justice. justice system have or will make the law faster, simpler and cheaper for all Austra- With reduced funding the likely outcome lians. Sometimes it is easier to use slogans in will be a hurried and overworked service, lieu of good policy initiatives, and the devel- which will inevitably experience lengthy opment and implementation of them. The delays. The government has done very little recently finalised additional estimates around to address these matters and I suspect will the statement that government reforms have inevitably come up with a stopgap solution, made the law faster, simpler and cheaper for as is their way. The government has said that all Australians rings a little hollow, I must its ‘family law reforms are helping to reduce say. Even where reforms have been intro- the emotional and financial strains of separa- duced, they have been done in such a way tion and divorce.’ A major factor of stress that their true value has been significantly during a marriage break-up and/or separation diminished. is delays and waiting times for hearings. The coalition has set the bar. It is up to them to Turning to the Federal Magistrates Service demonstrate that they can reduce the waiting in the address, the service is now a reality— that is a given. Labor does not oppose the Wednesday, 20 March 2002 SENATE 1071 times, the stress and the inconvenience that it The government also released an exposure causes. draft that was valuable in the process; how- In his address, the Attorney-General also ever, the matter is still some way off. While discussed privacy issues. The privacy legis- on this topic of treaties, I take the opportu- lation is but one other area that Labor will be nity to encourage the government to engage monitoring closely. To date the establishment in the process and make timely responses to of a new privacy regime appears to be well the committee reports that have been sub- received. The more difficult task will be to mitted. Many reports do not require a re- overcome any obstacles that arise from gaps sponse from the government but, between within the privacy laws themselves. During April and September last year, there were a the debate on the new privacy laws, Labor number of reports that have required a re- was instrumental in putting forward changes sponse. This government has been tardy in to the legislation that strengthened the pow- providing a response to ensure that the work ers of the Privacy Commission and provided of the treaties committee is kept up to date greater protection for Australians’ personal and that responses are provided in a timely information. However, more improvements and effective manner. are needed to incorporate the invasion of IT I turn to the other areas which were ad- in relation to personal details. The current dressed in the speech by the Attorney- laws do not, for example, apply to employee General to the departmental officers. Touch- records nor do they differentiate between the ing on the topic of the Administrative Ap- protection of the personal information of peals Tribunal, the Attorney-General indi- adults and that of their children—despite the cated that he was keen to see the establish- fact that information provided by children, ment of an administrative review tribunal. particularly via the Internet, requires special Labor, similarly, is keen to see this happen. protection. These are areas that need to be However, a considerable amount of work is addressed and which the government is yet required to be undertaken. Labor opposed the to act on despite assurances to the contrary. ART that the coalition introduced in the 40th Labor will continue to call for action in these parliament, for very good reasons. Those areas. reasons remain valid. Our touchstones were, The government’s agenda is the other and remain, that the introduction of the ART topic that the Attorney-General discussed should not compromise either the quality or during his speech to his departmental offi- the independence of the review of govern- cers. The government has set out to: ment decisions. I urge the Attorney-General not to take the easy road and simply drag out ... introduce age discrimination legislation and to take other steps to reinforce our reputation as a the last model, with all its attendant prob- world leader in the area of human rights ... [and] lems. Administrative law in this country does to ratify the Statute of the International Criminal require a second look. Court. It was intended that the bill would provide No doubt the Senate will work cooperatively a fundamental reform of the system of fed- on these aims. There is a need to have proper eral merits review. The ART was to replace age discrimination legislation. The reputation four merits review tribunals: the Administra- of this government in the area of human tive Appeals Tribunal, the Social Security rights and the International Criminal Court Appeals Tribunal, the Migration Review Tri- are matters that similarly must be addressed. bunal and the Refugee Review Tribunal. Its As a member of the Joint Standing Commit- genesis was the Administrative Review tee on Treaties, I, along with my colleagues, Council’s report Better decisions, which was have spent a considerable amount of time on a review of the Commonwealth merits re- this issue of the International Criminal Court view tribunals. The council’s view was that a and there is a need to spend a little more time single tribunal should be established to re- in respect of that issue, and the bill has yet to place the existing federal merits review tri- be presented. bunals. The catchcry was that the ART would provide an accessible mechanism for 1072 SENATE Wednesday, 20 March 2002 reviewing decisions that was fair, just, eco- The report made a number of recommen- nomical, informal and quick. This was to dations across a broad range of matters. They enable the tribunal to review decisions in a also recommended more specifically that the non-adversarial way and to allow the tribunal family law system should perform specific to have multiple procedures to resolve issues. key functions, including, amongst others, the However, the bill did not get Labor’s sup- provision of education for the community, port, as I indicated. It did not meet the high young people and professionals; provision of expectations that were set for it. As outlined information that is accessible, comprehen- in a minority report of Labor and Democrat sive, appropriate and targeted; assessment senators in an inquiry by the Legal and Con- and referral; service and intervention options stitutional Committee, there was a belief that to help family decision making; and ongoing there was merit in the concept of merging the support. It is disappointing, to say the least, separate administrative review bodies into that the Attorney-General is not leading in one, but the model was so flawed and so this area. It seems that the Prime Minister’s dramatically departed from ARC Report 39 task force set up to take this forward has yet that in the end Labor could not support it. to make a visible statement. As the Attorney- If the Attorney-General is serious about General himself said, ‘There is a need for another look, I urge him to sit down with the much work to be done in this area.’ Until this shadow Attorney-General and work through work commences, it is not visible. The At- the issues in a bipartisan way. In my view, torney-General needs to roll up his sleeves there is considerable scope for reaching an and take the matter forward. The Family Law agreement in principle on an administrative Act is his responsibility and the Attorney- review tribunal. As I understand it, the At- General should not shirk his responsibility. torney-General has requested the Civil Jus- I turn to another area which came under tice Division to prepare an options paper on some scrutiny in relation to the departmental the future of this project, which in my view report—legal aid. It was disappointing to see misses the mark entirely. There is consider- that the Attorney-General’s only concern able scope for an options paper to be used as with the whole area of legal aid was for a the mechanism to go forward. However, to national fee scale for legal aid work. The limit it to a document to advise his cabinet government’s priority in this area is clear. colleagues of the most appropriate way for- The issue of access to the law for those in ward smacks of a way out, not a way for- need is being ignored. ward. Senator Brandis—That’s rubbish. In his speech, the Attorney-General also Senator LUDWIG—As you would un- turned to family law matters. He referred to derstand, Senator Brandis, deep cuts to legal the ‘Pathways’ report. It is worth spending a aid since 1996 continue to hurt those people short amount of the Senate’s time on the re- who are deserving of assistance but who are port. Before I comment on the Attorney- unable to meet the guidelines that now se- General’s remarks, I should say that the re- verely restrict the availability of legal aid port was produced by the Family Law Path- funding. ways Advisory Group in July 2001. The re- port was titled Out of the maze. The reason I now turn to something that Senator for producing the report was to find a way of Brandis would be interested in—reform of achieving better outcomes for family mem- the legal profession. The Attorney-General bers, in particular children, following the made some comments to his departmental dissolution of a marriage or relationship. Of officers in this area. As the reform of the course, it was predicated on the concept of legal profession is missing from the speech, ‘parental responsibility’. Part VII of the it can only be surmised that the Attorney- Family Law Act 1975 emphasises that par- General has abdicated his responsibility to ents and the courts should actively consider the state attorneys-general. That is the sole the best interests of the children when mak- ‘statement’ that he made in that area—noth- ing decisions about their care and welfare. ing. Wednesday, 20 March 2002 SENATE 1073

Senator Brandis—The state attorneys- apology also went to the High Court, the general regulate the legal profession. That is parliament, the Senate and his colleagues. not the responsibility of the Attorney- What is missing, I think, is an apology to the General. gay community. In his statement of apology, Senator LUDWIG—The coordination Senator Heffernan has said that he does not role and leadership of law reform is lost on condone discrimination against homosexuals this government, as it seems to be on Senator and that there is no link between homosexu- Brandis. I am confident that the states will, ality and paedophilia. This statement is very however, be able to bring about significant welcome, but without legislation to back it law reform for the betterment of not only the up, I also think it is very hollow. Homopho- profession but also the public, who will be bia most obviously exists in the form of leg- the winners out of the process. It is disap- islation, both state and federal, which contin- pointing to see that Senator Brandis does not ues to deny to gay and lesbian citizens the support the people who could win out of the same rights and responsibilities as all other system of a properly regulated and reformed Australians. Australia is one of the very few law profession, led by the Attorney-General, places in the Western world that has no anti- rather than ignored by him. Victoria is well discrimination legislation to protect people on the track of reforming its regulatory on the basis of sexuality from discrimination framework; New South Wales and Queen- and vilification. It is one thing to say you do sland are too. not support this form of discrimination but quite another to actually do something about In conclusion, the Attorney-General’s ad- it. dress covered a wide range of areas which I will further talk about in other forums, in- The fear in much of the gay community is cluding this Senate. However, the address of the damage caused by repeated allegations did not outline all the areas within the law from people in public life that homosexuality that the opposition would see as needing at- and paedophilia are one and the same. It is an tention. The Attorney-General has confined insidious but deeply entrenched mythology. his remarks, it seems, to a very narrow, lim- Sadly, much of the damage caused is to the ited agenda that neglects legal aid. psychological health and wellbeing of gay and lesbian youth, a group in our community Homosexual Legal Rights with a shocking record of suicide. Many gay Senator GREIG (Western Australia) and lesbian people rightly fear the hatred and (1.15 p.m.)—This afternoon I want to try to violence that sometimes emanates from this give voice to some of the anger and the very belief and rightly fear the consequences of real fear that many in the Australian commu- antigay legislation that is founded on this nity feel following Senator Heffernan’s now mythology. infamous speech to this chamber last week Amongst the vast array of innuendo and and the resulting wave of homophobia that allegation contained within the senator’s swept the country. Homophobia takes many speech, there is one thing he said that I could forms: some are subtle, some are blatant, strongly agree with. That is the fact that pre- some are insidious and some are vicious. vious criminal prohibitions against gay males Gay and lesbian people, sadly, are used to the ensure that older gay men are today regarded tall poppies in their community, those with as criminals in a way that does not apply to profile and positions of power and influence, heterosexual males. In age of consent laws being attacked. When this happens, all gay the goalposts are often shifted, to the disad- and lesbian people feel the pain and anger of vantage of gay males. There is no logic in that attack. The appalling allegations against this. In 1984, homosexuality was decrimi- Justice Kirby were felt very personally and nalised in New South Wales but the consent very deeply by many people. age remains at 18—two years above that for Senator Heffernan has offered a strong heterosexual couples and lesbians. In his apology to the judge and, graciously, His speech, Senator Heffernan has said: Honour has accepted. Senator Heffernan’s 1074 SENATE Wednesday, 20 March 2002

... I believe there is an urgent need in New South Senator Heffernan has also failed to rec- Wales to retrospectively legislate to protect peo- ognise and acknowledge that antigay age of ple, including some high profile political, judicial, consent laws exist beyond New South Wales. legal and media figures, many of whom presently Every state and territory has a sorry tale of still lead double lives, and provide these people repealing antigay laws only in recent years, with legal relief from prosecution for pre-May 1984 lifestyle ... offences. with the exception of South Australia, which equalised its consent ages in 1975. As it now He is absolutely correct, but his argument is stands, New South Wales, WA and the grossly inadequate to address the broader and Northern Territory are the last remaining more comprehensive dilemmas caused by the jurisdictions in Australia where antigay con- existing antigay laws in New South Wales, sent ages exist. The most outrageous of these let alone those that were in place almost 20 are in my home state, Western Australia. In years ago. There is a profound contradiction fact, they are the worst in the Western world. in the senator’s arguments, and it is this con- They ensure that all sexually active gay tradiction which rightly gives rise to accusa- males aged between 16 and 21 are deemed to tions of homophobia. On the one hand the be criminals and face up to five years im- senator calls for the retrospective abolition of prisonment. These laws are currently under antigay laws prior to 1984, while on the review and repeal by the WA parliament, but other hand vehemently opposing moves to I would point out to the senator that once remove the existing antigay laws in that again it is his side of politics, the Liberal state, which were established in 1984. Party, which is fiercely resisting this reform The existing antigay laws in New South and wants the antigay laws to remain. Wales ensure that gay males aged 16 and 17 The Wood royal commission in New are currently deemed to be criminals. If they South Wales, on which Senator Heffernan engage in consenting sex with partners of a drew heavily as a resource for his arguments, similar or older age, they are subject to made some 140 recommendations to the prosecution and jail terms. This law does not government to minimise opportunities for apply to heterosexuals or lesbians, who can police corruption. First amongst these was lawfully consent to sexual behaviour at 16 the recommendation of the call to equalise years of age. Repeated attempts to abolish consent ages in that state. Yet, despite this, this antigay law and to equalise the gay con- law reform is still not forthcoming in New sent age with that of heterosexual couples South Wales and is fiercely resisted by the has been fiercely resisted by the Liberal Liberal Party in that state. I would say to Party of New South Wales and remains Senator Heffernan that, if he is genuine and fiercely resisted by the senator. What sup- serious about legislative reform to alleviate porters of Senator Heffernan’s argument ut- gay men from compromise, entrapment and terly fail to comprehend is that providing blackmail, he must call on his Liberal col- legal relief from prosecutions and equalising leagues in that state to support the current the consent ages is exactly the same thing. If bill before that state’s upper house—and in legislation were passed along the lines advo- the name of the Australian Democrats— cated by Senator Heffernan, it would still which aims for the umpteenth time to finally mean that 16- and 17-year-old gay males in abolish the antigay laws from that state. Age New South Wales would find themselves in a of consent reform would make life easier for position of vulnerability to blackmail, com- young gay males both in a social and legal promise and police entrapment, as is cur- sense. rently the case. A gay 17-year-old male studying law in New South Wales today will Through the media and the parliament, be a compromised member of the judiciary both Senator Heffernan and the Prime Min- in 30 years time. Why? Because he is subject ister have drawn attention to allegations, now to the existing criminal sanctions in New discredited, that a judge had engaged the South Wales against gay men in exactly the services of a male prostitute aged 17 years same way that gay men were compromised and six months. In so doing, the allegation prior to 1984. became focused not on the matter of a judge Wednesday, 20 March 2002 SENATE 1075 with a prostitute but on a judge with an un- the antigay laws remain, and so long as peo- derage male prostitute. Let us be clear about ple make use of the antigay laws both to this: if the prostitute in this alleged scenario prosecute and to persecute those who simply were female, the question of age of consent happen to not be heterosexual. would not have come into it. The male pros- In response to this, I will give notice today titute in this alleged scenario is only deemed that it is my intention to introduce a private to be underage by virtue of the antigay laws. member’s bill introducing homosexual anti- Perhaps without realising it, Senator Hef- vilification legislation in Australia. This pre- fernan has proved that the existence of vention of incitement to hatred legislation antigay laws do in fact especially compro- would be based on the existing New South mise gay men and expose them to criminal Wales model and would be in the same vein penalty to which heterosexual people cannot as the existing racial vilification laws. Once fall foul. But the hypocrisy of expressing implemented, it would include words to this concern about this damaging legal dynamic effect: while at the same time using it to besmirch a A person must not, by a public act, incite ha- member of the judiciary was indefensible. tred towards, serious contempt for, or severe ridi- The anger felt across the nation by all gay cule of, a person or group of persons on the and lesbian people over this incident is prin- ground of the homosexuality of the person or cipally because the attack on Justice Kirby is members of the group by means which include: seen as an attack on all homosexual people. (a) threatening physical harm towards, or The innuendo about ‘promoting causes to towards any property of, the person or group of impressionable young men’ is rooted in the persons, or ‘recruitment’ mythology of antigay groups. (b) inciting others to threaten physical harm Gay and lesbian people have heard all this towards, or towards any property of, the person or nonsense before. group of persons. The anger in the gay community is also The bill would also include penalties similar due to the use of antigay laws to deem gay to those which exist in New South Wales and men as criminals and then, in a bizarre catch- under federal law that could be imposed for 22 situation, to use that criminal status to people who breach these laws. compromise gay men and to justify the need We have heard much in recent days both for these laws by evidence of the fact that from the government and from the opposi- gay men are likely to fall foul of them. Can tion, who claim not to support discrimination anyone imagine the legal and social chaos against gay and lesbian people and to be that would be caused if heterosexual couples, strongly opposed to vilification of gay and where one or both partners were aged 16 and lesbian people, but we have seen no legisla- 17 years, were deemed to be illegal? Yet this tive response to address that. While the is the reality faced by many gay males. Democrats’ sexuality discrimination bill has Antigay rhetoric, especially from people been on the Notice Paper for some six years, in public positions, and especially antigay it has not progressed, as is often the fate of rhetoric that equates, implies or confuses private members’ bills. paedophilia with homosexuality, raises the I think this is a good time to progress a temperature of homophobia in the nation. bill which simply says to the community that Antigay outbursts give licence to those who it shall be unlawful to incite hatred towards would condemn, attack and vilify. The attack or to vilify people on the basis of their sexu- on Justice Kirby seems to be yet another case ality. Given the mood of the electorate in of a gay person in public life condemned for response to recent events and the statements little more than his openness about his sexu- of support for opposition to vilification that ality. For as long as some gay and lesbian have come from both the government and the people pop their heads above the trenches to opposition, I sincerely call on both sides of declare their sexuality, there will be homo- the House to support this bill. It is my inten- phobic thugs ready and willing to kick them. tion to give notice of it today and hopefully This fear and anger will remain so long as to address it when the Senate resumes for the 1076 SENATE Wednesday, 20 March 2002 budget sitting later this year. I hope it attracts The database, when we got it, revealed over support. 100,000 faults in our copper network. This Telstra: Telecommunications database identifies faults reported by the Infrastructure technicians themselves—this is what the da- tabase is—and not customer initiated faults. Senator MACKAY (Tasmania) (1.27 The customers in fact did not know that these p.m.)—Today I would like to speak about faults existed until Labor obtained that Telstra’s record of management of its copper documentation. This material—that is, the network and the resulting effect this is hav- 100,000 faults—was not considered at all by ing on the quality of telecommunications the Besley inquiry. services provided to customers, particularly those in regional Australia, for there is no This material, the 100,000 faults, was not doubt in my mind that Telstra is putting its considered at all by the Besley inquiry. In a corporate interests first and neglecting its cursory examination of just the first 100 public interest role as the owner and operator pages, Labor identified at least 50 faults of telecommunications infrastructure in deemed by Telstra technicians themselves as Australia. ‘urgent’ and 20 that had been deemed by Tel- stra technicians themselves as ‘dangerous’. Telstra does have an important duty to its Some were years old, dating back to 1997. shareholders, but it must strike a proper bal- Out of all the faults listed, the technicians ance between this and its duty to customers deemed about 20 per cent as ‘urgent’. That who, by necessity, rely on Telstra’s telecom- 20 per cent equated to over 20,000 faults. At munications infrastructure. I do not believe the time that the Labor Party received the that Telstra has this balance right at present, database, Senator Alston was claiming that and part-privatisation has put undue pressure there was no threat to customer services from on Telstra to satisfy what could be described this database. In fact he said at the time when as conflicting responsibilities. the information was released: Since the coalition’s privatisation program The government expects that a desperate and dis- started, tens of thousands of jobs have been honest Labor Party will seek to use the database slashed and Telstra’s capital expenditure to run a baseless scare campaign about the state of budget has been drastically reduced. The the Telstra network and— result is that Telstra’s telecommunications I emphasise this bit— infrastructure is not being adequately main- tained. Customers are experiencing the ef- falsely claim that there is some threat to customer services. fects of continuing deteriorations in the net- work, in part due to Telstra’s failure to repair I am quoting from a press release from faults which in some cases are years and Senator Alston on 18 September last year. years old. What has recurred in relation to the use of pair gain technology, which was inter alia a The evidence I cite with regard to the critical part of the database, with the Bould- claims I make today about the state of the ing family, seems to prove otherwise. Clearly Telstra network is the information contained there has been a threat to customer service. in what is called Telstra’s E71 database. Af- Labor knew at the time that this database ter almost a year of asking and asking, and revealed the true state of the network, and after all the diversionary excuses had been the difficulty in having it made available and used, Telstra finally released its 2,000-page the level of obfuscation and difficulty we had faults database last September, known first in getting hold of it proved that fact. and foremost as E71s, which is the acronym for the fault, and later recast in the incarna- It was clear at the time that Telstra had tion of ‘total order management system’. something to hide. The database revealed Until that time the database had been secret. that faults in our copper network were many The government and Telstra had refused to and varied. Some of the reports included the release it. We had to go to enormous lengths following comments from technicians. One to get that information, but finally we did. was ‘constantly breaking down and danger- ous’; ‘replaced 32 metres of cable in pipe, Wednesday, 20 March 2002 SENATE 1077 school fax—urgent—service out of order’ isting pair gain system, which I think is an was another; ‘new cable required, urgent, 70 absolute disaster waiting to happen. per cent customer affected’—these are com- There will come a point where the Telstra ments directly from the database—‘every network just falls over. In the meantime, wire has LIR causing noise, customers un- Australians are unknowingly sharing tele- able to use fax or modem’ was another. phone lines with their neighbours, which not These are just a few that we picked. only jeopardises the performance of the net- Some of these faults are clearly related to work but also can and has endangered peo- what is called pair gain technology being in ple’s lives. I am sure that every senator in place. Others, however, are due to more mi- this place would be interested in this infor- nor problems, which can then evolve into mation. The ACA report on the investigation more major service-affecting ones as the de- into the provision and maintenance of tele- terioration progresses. For example—this phone services to the Boulding family rec- was another thing that was in the database— ommended on page 20 that Telstra integrate a rat-chewed cable which is exposed to rain its customer and faults management systems. will deteriorate under those weather condi- This would make a lot of sense, considering tions. The damaged cable may have first that problems with faulty cables often then been reported as a minor fault by a techni- become problems that affect customer serv- cian, but in the event of a downpour of rain ices. The Boulding case is an example of customers will find their phone line is sud- that. denly out of order. This example also ex- The problem falls into both management plains why heavy rain in February this year systems. Technicians do not appear to have had such a devastating impact on telephone had access to all of the information that services, leaving many people without serv- would help them properly repair faults so ice for several days, and which led to Telstra that that fault does not immediately recur declaring a ‘mass service disruption’, as they within less than a day, as happened in the term it. The flow-on effects of Telstra’s in- case of the Boulding family. Further, what adequate level of maintenance of its network would be better would be to have those man- cannot be ignored by Telstra or the govern- agement systems such as the E71 faults data- ment. base locally coordinated and managed in The system known as pair gain was only each region rather than in a central point in ever intended as a stop-gap measure pending Melbourne or Sydney. It would make more proper cabling provision, but it has now be- sense for regions to have their own budgets come the norm. A 6x16 is a type of pair gain for the instant repair of such faults. I think which is older technology, but it still exists. that everybody would agree that that is What it means is that five lines are shared axiomatic. between 16 people. If five people jump on Since the beginning of the government’s the line at the same time, then the other 11 privatisation agenda, Telstra has shed tens of people cannot use the line at all. That is the thousands of jobs—around 40,000 in fact. reality with some of the older technology in This has been through the whole of Telstra relation to pair gain. and its subsidiaries. One subsidiary that has In relation to the copper network, under lost many jobs and continues to do so is normal circumstances each customer should Network Design and Construction. NDC are be allocated a cable, which is referred to as a the people who are responsible for building telephone pair. But in order to save billions the network and often repairing the network. of dollars, Telstra had been piggy-backing The government’s agenda, Minister Alston’s phone lines for years, but the problem is, as agenda, to sell off NDC has meant that jobs Senator Alston would know, that a short- have been shed from every part of regional term vision for the network is not sustainable Australia all to make it more attractive for in the long term. Despite that, I have even purchase. The irony is that these NDC work- heard that Telstra are pair gaining off an ex- ers are the ones who could fix many of these maintenance and repair problems in the cop- 1078 SENATE Wednesday, 20 March 2002 per network. Now, while NDC is no longer 20,000-odd faults waiting to happen and in on the market pro tem, jobs are continuing to the queue we have several thousand more be shed—like those in Bendigo at the mo- that are likely to become urgent. ment. The other issue I would like to restate is We won’t forget Mr Howard’s sincerely this issue of pair gain technology. When you meant but more honoured in the breach than have got anecdotal evidence—and we will in the observance Nyngan declaration that, if attempt to substantiate it—of pair gains be- any government jobs were to go in regional ing put on pair gains, you really do have a Australia, a red light would flash in his office disastrous situation in relation to the Telstra and he would stop it. The Bendigo workers network. I wish to make those statements must feel very burnt by that declaration. Not today and call on Telstra and the minister to only are their jobs going to go, but the faults address the issues in relation to this database continue to remain unfixed, waiting for re- which have not been adequately addressed as pair, with fewer and fewer technicians avail- yet. I give notice that we will be pursuing able to fix them. In fact, 800 jobs, further this issue into the future. redundancies, have gone from Network De- Superannuation: Quarterly Payments sign and Construction. Senator SHERRY (Tasmania) (1.39 The death of a child is a terrible event that p.m.)—In the House of Representatives last should never under any circumstances be Monday, my colleague Mr Mark Latham, in exploited for political reasons, and that is not representing me as shadow minister for re- my intention here today. However, the Aus- tirement incomes including superannuation, tralian Communications Authority and the presented the Superannuation Guarantee PriceWaterhouse Coopers reports into this (Administration) Amendment Bill 2002. The tragedy which were released last week—and bill amends the Superannuation Guarantee I congratulate the government for releasing (Administration) Act 1992 to require all em- both of those—do paint a disturbing picture ployers to remit superannuation guarantee of Telstra’s current operations. payments at least quarterly rather than annu- It is my belief that Telstra has rationalised ally from 1 July 2002 onwards. For conven- its operations to the extent that it is failing its ience to business, contributions will be paid public duty to adequately maintain the tele- on the BAS reporting date for each quarter. communications network. Corners are being Labor has taken the lead on the urgent need cut, shortcuts are being taken and corporate for quarterly superannuation contributions. interests are dominating Telstra’s priorities. The former shadow Assistant Treasurer, We on this side of the chamber believe that Mr Kelvin Thomson, introduced a bill on the further privatisation of Telstra would see this matter in 2000 and again in 2001. But these trends not only continue but quite the Liberal government allowed both of these likely increase. That is why we remain im- bills to lapse. The bill we introduced on 11 placably opposed to the further privatisation March was our third private member’s bill of Telstra, and we will take every opportu- on this issue, but we have heard nothing nity to restate this position. from the Minister for Revenue and Assistant I would also like to ask those senators Treasurer, Senator Coonan, who has respon- who are in the chamber to inquire in relation sibility for superannuation and who has been to the E71 database which has 100,000 missing in action on superannuation for more faults, 20,000 deemed urgent by Telstra than three months except for a now infamous technicians. It may be worth inquiring why dabble with an assertion that superannuation that database was not considered in relation can replace the current age pension. But to the Besley inquiry because I am sure that more on that on another occasion. Since if the Besley inquiry had been made aware of Senator Coonan appears to have now taken a this—and I am sure that they were not but I vow of silence on quarterly contributions, I could be wrong—they would have looked will fill in some of the background to the into it. One of the things that has emerged government’s approach on this issue. from the E71 database is that we have Wednesday, 20 March 2002 SENATE 1079

First was their attempted deal with the Had the government supported Labor’s Democrats on so-called superannuation first private member’s bill in October 2000 choice, commonly known as deregulation of all eligible employees would have received the retail section of the superannuation in- quarterly contributions from July 2001. Had dustry. As part of this failed deal, the gov- they supported our second bill, quarterly ernment agreed to support quarterly contri- contributions would have applied from July butions. So-called choice fell over. But im- 2002. The retirement savings of Australian portantly the government had acknowledged, workers go lower the longer the government albeit begrudgingly, that quarterly superan- waits to legislate. That is why Labor has in- nuation was a good idea. There is no neces- troduced its third private member’s bill on sary link between quarterly superannuation the matter and that is why I suspect Senator contributions and so-called choice and the Coonan has failed to respond. She is embar- government has no excuse for failing to sup- rassed by the mean and tricky one-year delay port quarterly payments, especially when that Mr Howard intends to impose in respect Labor has provided it with the necessary of this important initiative. legislation. Labor’s bill will commence on 1 July this In August 2001, the Senate Select Com- year, a year ahead of the government’s pro- mittee on Superannuation and Financial posal. Under Labor’s bill the first quarterly Services made recommendations. The com- payment will not be due until 28 October. mittee included three Liberal senators, in- Any employers who fail to make this first cluding Senator Watson, who is currently contribution will need to lodge a superannu- chairing the Senate. I might say, even though ation guarantee statement before 14 Novem- he is a Liberal Party senator and obviously ber. we share a different political perspective, Regular contributions by employers, on Senator Watson has always been a very hard behalf of their employees, are central to working and impressive Chair of the Senate Australia’s compulsory universal superannu- Select Committee on Superannuation and ation that Labor established in 1992. When Financial Services. The committee recom- the Labor government introduced the super- mended that employers be required to make annuation guarantee, we originally proposed contributions for their employees on at least that payments be made quarterly, but at that a quarterly basis. The Senate inquiry illus- time we agreed to annual payments to give trated the almost universal support for quar- employers time to settle into the new system. terly contributions amongst employer and As I have said earlier, almost all employers employee representatives and other relevant now fulfil their superannuation obligations. organisations. Support has come from groups including the Australian Chamber of Com- However, a significant minority of em- merce and Industry, the Institute of Chartered ployers only pay annually or do not pay at Accountants, the Investment and Financial all. The time has come to require all employ- Services Association, CPA Australia and the ers to make contributions every quarter. This government’s own superannuation regulator, will protect the interests of both employees APRA. and employers. Employers who pay quarterly or more frequently should not be at a com- On 5 November last year, the Prime Min- petitive disadvantage to those who do not ister announced that the government would, pay their workers’ superannuation so consci- at long last, introduce legislation for quar- entiously. A worker whose employer pays terly contributions. Not unusually for this their superannuation annually is disadvan- government, there is a catch. Quarterly con- taged because their superannuation for an tributions will not be implemented until July entire year—if we take a figure of $3,500 for 2003, and I suspect there will be a further a full-time average worker, the average wage catch when we see the actual detail of the at the moment being approximately legislation in that it will probably be bundled $44,000—has not been earning compound with other superannuation initiatives. But interest in their superannuation fund. Quar- Australian workers deserve better than this. terly payments will therefore mean higher 1080 SENATE Wednesday, 20 March 2002 investment earnings and higher retirement placed into liquidation in May last year with incomes for employees. Of course, the inter- little chance of superannuation entitlements est they miss out on as a result of yearly being recovered. payments compounds over 10, 20 or 30 years The government’s inadequate employee into a much more significant sum of money. entitlements scheme does not cover lost su- Quarterly contributions will reduce the perannuation, which is all the more reason to likelihood of employers defaulting on their provide for more frequent contributions to superannuation obligations altogether when help prevent problems like those experienced times are tough. As Mr Leo Bator, the Dep- by employees around the country from oc- uty Commissioner of Taxation, said to the curring again in the future. The government’s Senate inquiry into superannuation guarantee failure to provide for the loss of superannua- compliance on 17 October last year: tion contributions that are required by law Smaller debts paid more frequently are probably under the superannuation guarantee is a ma- going to be beneficial to both the employer and jor flaw of the flawed approach in respect of the employee. employee entitlements. In the earlier exam- The tax office received some 11,100 com- ple I gave of a worker on average full-time plaints about unpaid super in 2001 and have wages with superannuation contributions of admitted that the amount of outstanding SG $3,500 a year, the worker misses out on payments is about $104 million. those $3,500 a year superannuation contri- butions as a result of the employer going into I and other Labor members of parlia- bankruptcy. That quantum of money com- ment—and I am sure Senator Watson as pounds through to retirement to a figure of well—have received numerous inquiries $10,000 to $20,000, depending on the num- from individuals whose super has not been ber of years left to retirement. This is a major paid and where little or no action appears to sum of money and a significant part of the have been taken by the ATO. I raised a num- final retirement income that an employee ber of these cases directly with the ATO in would receive as a result of Labor’s initia- Senate estimates last month. They included tive, the superannuation guarantee. two constituents of the member for Hasluck, Ms Sharryn Jackson, who are owed $5,703 The government has provided no reason and $7,034 by their respective employers and why working Australians must wait until a resident of the electorate of Ryan who is 2003 for legislation to make their superannu- owed superannuation by three employers, ation entitlements more secure. Proposals for Aardvark Security, Allied South Pacific quarterly contributions have been on the ta- Protection and Traffic Control Services. He ble for a number of years and are already has received most of his superannuation from well known to the relevant stakeholders. The Aardvark Security but Allied South Pacific ATO and Australian businesses will have Protection and Traffic Control Services owe more than seven months to prepare before him around $1,000 and $3,000 respectively. I the first contribution is due, provided the am left wondering what, if anything, this government sees fit to support Labor’s leg- man’s local Liberal member thinks about the islation and expedite it through the parlia- urgent need for quarterly superannuation ment. contributions or about SG enforcements. I urge the government to support Labor’s A number of employees have approached bill. If the government cannot bring itself to my office on the north-west coast of Tasma- do this, I urge Senator Coonan, who coinci- nia with similar concerns about their super- dentally is in the chamber, to demand that the annuation. These include several current and Prime Minister bring forward the start date former employees of a fibreglass fabrication for his election announcement and introduce business called Fibretech—a business that legislation forthwith. The Prime Minister has seems determined to pay little or no superan- given many verbal assurances in respect of nuation at all—and a former employee of employee entitlements—verbal assurances Dimec, an automatic electrical business followed through with some partial action. trading in Devonport until 1997. Dimec was Wednesday, 20 March 2002 SENATE 1081

The government owes it to Australian work- hands of the Australian Federal Police, and I ers to follow Labor’s lead on this issue. believe they are best qualified to determine Sitting suspended from 1.51 p.m. to 2 p.m. its authenticity. What was right and wrong about the document is best left in the hands QUESTIONS WITHOUT NOTICE of the Australian Federal Police as opposed Privilege: Senator Heffernan to the super sleuths over there, or indeed me Senator FAULKNER (2.00 p.m.)—My trying to use whatever forensic skills I might question is directed to Senator Abetz, the have. The people best suited to do this are Special Minister of State. Minister, I refer to the Australian Federal Police. That is where the concluded departmental investigations, to it ought to be left. But, for the record and so which you and Minister Abbott referred Mr Crean no longer perpetuates the myths he yesterday, which found that the purported did on the 7.30 Report last night, the actual Comcar records could not be authenticated document, as it was printed, was first sub- and that there had been no inappropriate use mitted to the department through the news- of Comcars in relation to those matters raised papers. by Senator Heffernan last week in the Sen- Senator FAULKNER—Madam Presi- ate. Can the minister now inform the Senate dent, I ask a supplementary question. I thank what precise matters were investigated by his the minister for the information he has pro- department? What was the result, and who vided about the document he has described was informed of the results of these investi- as the 1994 document. I ask him whether gations? there were concluded departmental investi- Senator ABETZ—The honourable sena- gations then about any other Comcar records tor is quite right. The document to which provided by Senator Heffernan or relating to Senator Faulkner refers was the document the matters Senator Heffernan raised in the shown on the front page of a newspaper. For Senate—in other words, the alleged inappro- the record, it gives me the opportunity to priate use of Comcars by Justice Michael stop those on the other side and others from Kirby. If so, when were those matters inves- trawling misinformation. It is one of these tigated by his department? What was the unfortunate situations in this place where result of those matters and who was in- somebody has had a document believing it to formed of the result of those investigations? I be honest and then unfortunately finds the am talking here about concluded depart- information not to be as he may have sus- mental investigations. pected. Senator ABETZ—I think Senator Hef- In relation to the 1994 document, I indi- fernan in his speech to the Senate indicated cate to the honourable senator that the docu- he had sought certain information from the ment was never presented to the department. department. I can confirm an FOI request The department first saw it when it was on was made by Senator Heffernan. The docu- the front page of a particular newspaper on, I mentation he was after had been destroyed believe, Sunday. As a result of its publication pursuant to the Archives Act and therefore on Sunday, although Monday was a public the department was unable to authenticate holiday in Canberra, nevertheless officers that information which had been provided— went about examining certain aspects of the which in fact was not the complete work document. That document, as Senator Faulk- sheet but only extracts. As a result, there ner would be aware, is now in the hands of were no telltale signs on it such as registra- the Australian Federal Police, and certain tion numbers, driver details and things of that consequences might flow from that investi- nature. This is a situation where, as the oppo- gation. I do not think it is appropriate for me sition asks more questions, the clearer it will to identify publicly the information that led become that Senator Heffernan was on a to the department believing the document frolic of his own and the information we as a could not be authenticated. I would love to government had provided is quite clear and go through it chapter and verse, but unfortu- we as a government were not involved. nately—or fortunately indeed—it is in the 1082 SENATE Wednesday, 20 March 2002

Economy: Growth 2002. In total, some 950,600 new jobs have Senator TCHEN (2.05 p.m.)—Back to been created since the coalition came to of- the state of the nation— fice. Interestingly, this averages out at a rate of 440 new jobs per day under the coalition. Opposition senators interjecting— How does this compare with Labor’s record The PRESIDENT—Order! I cannot hear in government? At the height of Labor’s ap- you, Senator. I have called you to order. We palling unemployment record, which reached will start again. a top of 10.9 per cent, 212 jobs per day were Senator TCHEN—My question is to the being lost. It is hard to forget Labor’s interest Minister for Revenue and Assistant Treas- rate blow-out, when interest rates reached a urer, Senator Coonan. Would the minister record 18 per cent and business rates reached update the Senate with any new economic around 20 per cent. Last week, the ACCI data that demonstrate the benefits of the survey of industrial trends for the March Howard government’s responsible economic quarter demonstrated a similar sharp rebound management for Australian families and in business confidence. It highlighted that workers? Is the minister aware of any alter- manufacturing outputs increased, profit ex- native policies? pectations remained firm, and businesses Senator COONAN—I thank Senator have indicated their capital expenditure plans Tchen for that important question. There is will strengthen further over the next 12 good news on the economic landscape today. months. None of this would be possible The Westpac-Melbourne Institute leading without the responsible economic manage- index of economic activity was released to- ment of the coalition. It is also a testament to day, and it demonstrates that the Howard the resilience of the Australian business government’s management of the Australian community. economy is continuing to create jobs and I was asked about some alternative poli- prosperity within the Australian community. cies. The Labor Party is not interested in The press release from Mr Bill Evans, Gen- hearing about the good economic news that eral Manager, Economics, of Westpac, states, just keeps on coming under the sound eco- ‘This reading of the leading index gives fur- nomic management of the coalition. It must ther convincing evidence of the momentum be very demoralising to come to question building in the Australian economy.’ This is time, again and again, without any policies. all the more remarkable because the per- There must come a point, though, when the formance of the Australian economy has opposition has to go beyond simply opposing come about during a period of global eco- every policy position put up by the govern- nomic downturn, which has seen countries ment. Instead of coming up with some poli- such as the United States, Japan, Germany cies that would help Australian businesses and Singapore experience recession over the and Australian families, what do we see? We past year. Thanks to the economic initiatives see the Labor Party caught up in a crisis with of the government, including the first home key unions threatening to quit. Is it any won- buyers scheme, continuing tax reform, $12 der that, with no policies, federal Labor is billion in tax cuts for families and busi- having trouble explaining to its supporters nesses, our low interest rate and low inflation what it stands for? Victorian Trades Hall policies, and the strengthening of consumer Council Secretary, Mr Leigh Hubbard, got it and business confidence, the Australian dead right when he said, ‘At the moment, the economy has defied the global downturn. ALP is not relevant to a whole range of con- As last week’s national account figures stituencies.’ In stark contrast, the Howard demonstrate, Australia’s growth increased by government is getting on with the job and 4.1 per cent in 2001—10 times the average delivering for Australian families and Aus- of the OECD countries. This good economic tralian workers. news comes on top of last week’s positive Privilege: Senator Heffernan labour force figures, which indicate that un- Senator CONROY (2.10 p.m.)—My employment fell to 6.6 per cent in February question is addressed to Senator Abetz, the Wednesday, 20 March 2002 SENATE 1083

Special Minister of State. Can the minister from the journalist, was the minister or his confirm that, in 2000, the then secretary to office told? the Department of Finance and Administra- Senator ABETZ—I thought I had made it tion, Dr Peter Boxall, was provided with perfectly clear. copies of Comcar documents—or documents Senator Conroy—You didn’t answer the which purported to be Comcar documents— question, Eric. by the Brisbane Courier-Mail journalist Mr Paul Whittaker when he was pursuing an The PRESIDENT—Senator Conroy, you FOI request very similar to Senator Heffer- asked a question and an answer was given. nan’s? Can he confirm that Dr Boxall inves- You asked a supplementary question and tigated the authenticity of the documents, immediately sat down and started shouting. and can he clarify what those documents It is disorderly. were? Can he further indicate how the inves- Senator ABETZ—Did I not predict, in tigation into the documents was conducted? my answer to the first question, that we What was the specific departmental finding would get a prewritten supplementary ques- and what was the date of the finding? tion? The prewritten supplementary question Senator ABETZ—It is somewhat funny, asks about documents allegedly passed from isn’t it? We have a situation where Senator Mr Whittaker to Dr Boxall. I will read my Heffernan has offered a full and unreserved answer again. This material, provided by the apology, His Honour Justice Kirby has had department, confirms Dr Boxall’s recollec- the good grace to accept it, and the time has tion that he had had no contact with Mr now come to move on. But the Australian Whittaker. It also confirms his recollection Labor Party, who are absolutely devoid of that at no time did Mr Whittaker provide any policy proposals or initiatives, have to supporting documents. He can ask the ques- keep trawling through the gutter with innu- tion a third or a fourth time, but the answer is endo in relation to this matter. It will not get going to be the same. I do not know how them anywhere in the polls. often Senate question time has to be treated as a remedial school for elements of the op- Senator Carr—What about the answer? position—they are very slow learners. I have Senator ABETZ—I do have a very spe- given a very clear answer. Dr Boxall has in- cific answer. The former secretary to the de- dicated the situation and I have nothing fur- partment Dr Peter Boxall has indicated to me ther to add. He did not receive the docu- that he has had the opportunity to review a ments—end of story. detailed chronology of the events in relation Car Industry to Senator Heffernan’s and Mr Paul Whit- taker’s contacts with the Department of Fi- Senator FERGUSON (2.15 p.m.)—My nance and Administration. This material, question is to the Minister representing the provided by the department, confirmed his Minister for Industry, Tourism and Re- recollection that he had had no contact with sources, Senator Minchin. Can the minister Mr Whittaker. It also confirms his recollec- advise the Senate how the car industry con- tion that at no time did Mr Whittaker provide tinues to prosper under the Howard govern- supporting documents to either Dr Boxall or ment’s strong economic management? What the department. Undoubtedly there will be a is the government doing to provide ongoing prewritten supplementary question, and I certainty to this important industry? Minister, look forward to hearing it. are you aware of any alternative policies? Senator CONROY—Madam President, I Senator MINCHIN—I do appreciate a ask a supplementary question. I appreciate question from Senator Ferguson who, unlike the answer to that question; I just wish it had the opposition, is interested in things that been an answer to the question I asked. matter to Australians such as jobs and af- Could you also inform us: who was told of fordable cars—not like the muckraking the department’s findings in this investiga- questions which the Labor Party indulge in. tion? Was Dr Boxall told? Particularly as he Like many great Australian industries, the had received information and documents Australian car industry is prospering under 1084 SENATE Wednesday, 20 March 2002 our government’s economic policies. Indeed, calendar year; very low interest rates, which the last four years have been the best four are critical to consumer confidence and the years the Australian car industry has ever purchase of motor vehicles; and low unem- enjoyed. It is looking forward to another very ployment. We assisted this industry enor- good year this year. I am happy to report that mously by freezing car tariffs for five years we have just had the best January and Febru- and providing an industry assistance scheme ary sales in the history of this industry. Not amounting to $2.8 billion to help them ad- only are domestic sales very strong, based on just. The best thing we have done was to get those figures, but our exports are increasing rid of Labor’s wholesale sales tax on motor dramatically. Total exports in the year 2001 vehicles, which has represented a saving to were nearly $5 billion, an increase of 20 per the ordinary Australian—someone the Labor cent on the previous year. Automotive ex- Party has forgotten—of something like ports have practically doubled under our $2,000 per motor vehicle. government. The Labor Party has spent the last 18 As a South Australian, I am pleased to months or so talking down this industry. Mr say—and I am sure that Senator Ferguson McMullan used every opportunity he could would be pleased—that companies like Mit- when he was shadow industry minister to subishi, based in Adelaide, are helping to talk down this industry, salivating at the make this happen. I am sure we are all very prospect that the industry might suffer from pleased that Mitsubishi have had a nearly the transition to the new tax. It did not; the $200 million turnaround, from a loss of $185 industry has performed outstandingly. We are million in 2000 to a profit of $16 million last continuing to support this industry by al- year. They have done a tremendous job on ready honouring our election commitment to exports with a 60 per cent increase, mostly to initiate an inquiry immediately into assis- the US and the Middle East. I congratulate tance arrangements for the industry post the managing director, Tom Phillips, and his 2005. The Treasurer will announce the com- workers at the Adelaide plant for what is a position of that inquiry and the members of it stunning turnaround. It shows what can be very shortly. We want this industry to pros- done with good leadership and good coop- per. We want to put in place as soon as pos- eration from the work force. It confirms that sible certain industry arrangements for post Mitsubishi are going to be in Australia for a 2005. This is yet another great Australian very long time to come. industry that is going gangbusters on the ba- We also had one of the great names in sis of our fantastic economic management. world automotive circles come out here, Bob (Time expired) Lutz from General Motors. He said that Privilege: Senator Heffernan Holden, the Australian arm of General Mo- Senator COOK (2.20 p.m.)—My question tors, as far as he is concerned, is the world is to Senator Abetz, the Special Minister of leader in their worldwide organisation, and State. Is the minister aware that the former he looks forward to the export of Holden Comcar driver at the centre of the forged products to the US in their thousands. Aus- documents affair has been identified in to- tralian workers and Australian management day’s media as Mr Wayne Patterson? Can the can take a lot of credit for a great perform- minister inform the Senate how long and ance, but it is a fact, I am afraid to say to the over what period Mr Patterson was a driver opposition, that government policies have for the Prime Minister, Mr Howard? been absolutely critical to this performance. First and foremost, we have delivered a very Senator ABETZ—It is passing strange, is strong economy which is giving Australians it not, that parliamentary privilege is alleg- the consumer confidence to purchase Aus- edly not to be abused, according to those on tralian and other automobiles. the other side, yet they are willing to name somebody, when nothing has been proven in As Senator Coonan said, we have had relation to the gentleman to whom they re- solid growth—the best in the OECD—10 ferred, and quote a newspaper report as times the average at four per cent in the last proof? It may well turn out to be right; it may Wednesday, 20 March 2002 SENATE 1085 well turn out to be wrong. But, as I indicated tion in the previous government and that, earlier, this matter is now in the hands of the because he was so appalling at that, they got Australian Federal Police. Senator Cook rid of him and he has now been put onto the might think he is a supersleuth and he may back bench. But I think he was allowed a pen well be right, but I am not going to make a today and I think he penned his own question judgment on whether or not the gentleman today. So, Senator Conroy, whoever has was in fact involved with the document that taken over question time questions should has been referred to. Allow the Australian insist that Senator Cook not be allowed to Federal Police to conduct its investigation write his own questions. What a humiliating and determine who was the producer of that performance from a former Deputy Leader of document. Senator Cook’s assertion may the Opposition. Of course, I am not going to well be right, but it may also be wrong. I am ask the department to waste its resources so not going to speculate on that. that you can pursue your own personal fanta- In relation to whether a particular driver sies. drove the Prime Minister and for what pe- Zimbabwe riod, that I do not know; I can have a look at Senator BOURNE (2.25 p.m.)—My that. But, really, it beggars belief that the question is directed to Senator Hill, the opposition, which pretends to be the alternate Minister representing the Minister for For- government of this nation, seeks to ask eign Affairs. Is the government considering questions about who drove the Prime Minis- further sanctions against Zimbabwe? In par- ter and when as opposed to asking the ques- ticular, is the government considering tar- tion: who has driven the Australian economy geted sanctions against members of the Zim- to get 4.1 per cent growth and to get unem- babwean government? ployment down to 6.6 per cent? That is the sort of question that Senator Cook ought to Senator HILL—I think all honourable be asking about, not questions about who is senators would congratulate the Prime Min- driving the Prime Minister’s car. He should ister on his leadership of the group of three ask about the economic policies of this in London—otherwise known as the Com- country which are delivering dividends by monwealth Chairpersons Committee on the spade load to the Australian people. Zimbabwe—and on the decisions that were made by that group. I remind the Senate that Senator COOK—Madam President, I ask the Prime Minister of Australia together with a supplementary question. Could the minister the Presidents of South Africa and Nigeria have official Comcar records checked and jointly agreed to suspend Zimbabwe from the inform the Senate on how many occasions councils of the Commonwealth for one year; Prime Minister Howard, Senator Heffernan to engage with Zimbabwe to promote recon- and Mr Patterson were in the same Comcar ciliation; to address current issues of desper- together? ate food shortages, economic recovery, the Government senators interjecting— restoration of political stability, the rule of The PRESIDENT—Senators on my right law and the conduct of future elections; and will come to order so that question time can mandate the Secretary-General of the Com- continue. monwealth to engage with Zimbabwe on electoral reform, as recommended by the Senator COOK—Has the minister, his observer’s report. In other words, the group office or his department had any contact with of three determined a mix of, in effect, pen- Mr Patterson since Senator Heffernan alty and opportunity for Zimbabwe to be launched his attack on Justice Kirby? restored to a position of acceptable democ- Senator ABETZ—It is small picture racy and, in particular, so the desperate food stuff, isn’t it? Here is the opposition wanting shortages and the current economic crises to find out these peculiar details as though could be addressed in a sympathetic way. So, that will somehow advance the agenda of in the minds of the group of three, a mixture this nation. We used to believe that Senator of those decision is the best way to move Cook wrote all the questions for the opposi- forward on this particular issue. 1086 SENATE Wednesday, 20 March 2002

In answer to a question subsequent to de- with the Commonwealth Secretary-General, livering that outcome, the Prime Minister and will meet at the request of the Com- said he did not see that bilateral sanctions to monwealth chairperson in office. I interpret be imposed by Australia would be appropri- that to mean that it is going to be an ongoing ate at this time. I interpret that to mean that process and that the three heads of govern- he believes that the decisions made by the ment will be looking for significant progress two presidents and the Australian Prime within a reasonable time frame. Minister should be given a chance to work Privilege: Senator Heffernan before any other option should be consid- ered. I think that is a reasonable way to ap- Senator MACKAY (2.30 p.m.)—My proach the matter. Senator Bourne, who no question is to Senator Ellison, the Minister doubt has read the statement, will see that the for Justice and Customs. Minister, I refer to emphasis is very much on looking to pro- the meeting between former superintendent mote the concept of reconciliation to try to Mike Woodhouse, who headed the original find a peaceful way forward in Zimbabwe New South Wales Police investigation into and to do it with a series, as I said, of incen- Senator Heffernan’s allegations against Jus- tives and some penalties, and to engender a tice Kirby three years ago, and the Prime spirit of cooperation that is believed by the Minister late on Monday this week. heads of government to give the best chance Is the minister aware that Mr Woodhouse of a peaceful and constructive way forward confirmed to the Prime Minister that the for the benefit of all of the people of Zim- same purported Comcar document being babwe. relied on by Senator Heffernan until this Senator BOURNE—Madam President, I week was found to be a fake by the New ask a supplementary question. I thank the South Wales Police three years ago? Did the minister for his answer. I think the Prime New South Wales Police ever pass this in- Minister probably got the best he could out formation on to the AFP or any other agency, of that meeting, and we do congratulate him to the minister’s knowledge, when they made on that. I am sure the minister has been con- this finding three years ago? If they did, what tacted, as I have, by people from Zimbabwe action did the Commonwealth take? and by friends of people in Zimbabwe who Senator ELLISON—I am very wary as see this as the end of a line of terror followed to what I divulge in relation to what are op- by illegitimacy and appeasement. I am sure erational details in relation to a state police we do not want them to see it that way. Min- force or to the Australian Federal Police for ister, you did say that the Prime Minister that matter. I will take the question on notice wanted this to be given a chance to work. and get back to the senator, if there is any- Minister, at what point do you think it will be thing I am able to advise her of. known that this has worked or not worked Senator MACKAY—Madam President, I and at what point will we reconsider having ask a supplementary question. When the de- further sanctions on Zimbabwe? partment, separately, came to the same view Senator HILL—I also wanted to men- in the year 2000 as the New South Wales tion—so I will mention it now—that, in the Police—that the document was a fake—what spirit of goodwill and of the sentiment of the action did the Commonwealth take to refer three leaders, Australia has announced a this potentially fraudulent creation of a pur- contribution of $2 million in food aid ported Commonwealth document to the Fed- through the World Food Program for the eral Police for investigation? If the Com- people of Zimbabwe. On the broader ques- monwealth did not take action, why not? tion of how long it should be given to work, Senator ELLISON—I take it that Senator it does not seem that the three heads of gov- Mackay is referring to the document which is ernment set a specific time frame. But they the subject of a referral to the AFP. If that is did say that the committee will actively pro- the case, I am not going to comment on that. mote the implementation of all of the goals The opposition needs to be reminded that, in contained in this statement, in consultation these cases, matters which are either poten- Wednesday, 20 March 2002 SENATE 1087 tially under investigation or under investiga- Senator COONAN—I have already said tion by the police are not commented on and that I will arrange a briefing for you. Twice a that such a question is inappropriate. year we publish a guide to reflect the varia- Taxation: Forest Plantation Industry tion to economic conditions and, with respect to your specific question, I will arrange a Senator MURPHY (2.32 p.m.)—My briefing. question is to the Minister for Revenue and Assistant Treasurer, Senator Coonan, and Privilege: Senator Heffernan relates to the estimated cost to revenue of the Senator CONROY (2.34 p.m.)—My introduction of the 12-month tax rule for the question is to Senator Abetz, the Special plantation industry. It is estimated that be- Minister of State. In relation to the minister’s tween $800 million and $1 billion will be denial a short while ago that Dr Boxall had invested in the agribusiness sector in the next any contact with the Courier-Mail journalist, financial year and that between 70 and 80 per Mr Paul Whittaker, I ask: did any other cent of these funds will go directly into the DOFA officials have contact with Mr Whit- plantation sector equating to between $560 taker? Did Mr Whittaker provide copies of million and $700 million. Assuming that purported Comcar documents to the depart- investors in this sector will be in the top ment? Were those documents examined by marginal tax rate of 48.5 per cent and that Comcar staff and did those staff conclude companies receiving the funds will pay tax at that they were bogus? the company rate of 30 per cent then the tax Senator ABETZ—As Senator Kemp re- differential is 18.5 per cent. We can add minds me, Senator Conroy had very small around another 1.5 per cent to that for those shoes to fill when he became Deputy Leader investors who have used these investments to of the Opposition in the Senate and he is avoid the 15 per cent super surcharge. This really living up to that requirement. This is a gives a total tax differential of around 20 per pathetic trawling exercise by the opposition. cent. Minister, does this not mean that the First of all, they try to get some information real cost to revenue for the introduction of on Dr Boxall, there was an absolute, ‘No’ to the 12-month rule is more like $100 million that, so now the scope of the question is any- per annum and not $25 million per annum as body whatsoever in the Department of Fi- estimated by the government? nance and Administration. Senator COONAN—Thank you, Senator Senator Ian Macdonald—You should Murphy, for the question. Senator Murphy, I know what the cleaning lady was doing, can understand how, now that you have Senator Abetz. moved away from the Labor Party, you are struggling a bit to understand the impact on Senator ABETZ—Senator Macdonald revenue of just about any announcement. If quite rightly interjects that I am supposed to you truly want to learn what affects revenue know what the cleaner in the department did collections, I suggest you read the budget and what they might not have done. The papers. I also suggest that looking at the simple fact is that there was no contact be- Mid-Year Economic and Fiscal Outlook will tween Mr Whittaker and Dr Boxall and you help you. Apart from your specific question, cannot recover your position now having if there is anything further that I can add, I been given an absolute no on that. You can- can arrange a briefing for you. not try to recover your position now by ask- ing a trawling question in relation to who Senator MURPHY—Madam President, I else in the department may or may not have ask a supplementary question. I am always done something. It is on the record, as I un- keen to learn, Minister. Given the response, derstand it, that a freedom of information is the minister prepared to provide the Senate request was made by the journalist in ques- with the modelling used to establish the tion and, as a result, as one might expect, the revenue costs for the introduction of the 12- normal FOI course would be adopted and month rule for the plantation sector? therefore it might stand to reason that some contact may have been had in pursuance of 1088 SENATE Wednesday, 20 March 2002 that FOI request. It is as though that is some munity Services, Senator Vanstone. Will the great revelation to them. My goodness. minister inform the Senate of recent changes Senator Evans is a very slow individual if to social security rules to assist genuine job he thinks that that is some revelation. That seekers? Further, is the minister aware of has been trawled through the media now for recent media reports on social security pen- a number of days. There was an FOI request alties based on particular individual cases, from this particular journalist, and the de- and can the minister advise the Senate what partment, through the FOI officer et cetera, the effect of these reports is on public de- dealt with that request in the appropriate bate? manner. So of course there was contact. But, Senator VANSTONE—I thank Senator as to whether I am going to trawl through Payne for the question. On 4 March the gov- and indicate names and who and when and ernment made some major policy changes to how, fortunately the department has a lot breaching of welfare recipients. We intro- better things to do. We as a government are duced temporary suspension of payments more concerned about keeping the growth where a job seeker fails to meet their obliga- rate at 4.1 per cent, keeping unemployment tions and simply cannot be contacted. We at 6.6 per cent, and falling, and giving good broadened the breach waiver provisions, economic governance to this country rather meaning that if someone is going to be than reacting to a smear campaign of the op- breached and lose some of their dole pay- position. ments and they accept going on a Work for Senator CONROY—Madam President, I the Dole program or a community support ask a supplementary question. Will the min- program they would have the breach waived. ister check with his department on the who, We extended that to include going on a reha- what and when and get back to us— bilitation program or engaging in formal vo- cational training, providing more opportuni- Senator Abetz interjecting— ties to help yourself and get a waiver of a Senator CONROY—Hansard is not able breach. We reduced the penalties for failing to record that you said no, so I just put it on to attend an interview by roughly half and we the record for you, Senator Abetz. What pre- also committed to investing more in job cisely were the documents that Mr Whittaker seekers by greater monitoring of their pre- provided to the department? Were they the paring for work agreements. extracts from the 1992 Comcar records Professor Pearce reported about a week which Senator Heffernan referred to in his later, and his recommendations were not dis- infamous address-in-reply speech? similar to the announcements made by the Senator ABETZ—I do not think Senator government. This process has provided a Conroy understands the nature of an FOI very interesting test of good faith for some in request. You usually make an FOI request the media, because we had a situation where because you do not have the particular the government made some announcements document. So why a journalist would pro- and some people in the welfare sector wel- vide documents and then say, ‘Can you pro- comed those announcements. Then Professor vide that to me?’ I do not know. The FOI Pearce made some announcements and sug- request was dealt with in the normal way. If gested that the government had in fact bor- there was anything improper in the handling rowed his work, meaning we were both on of the FOI requests, one would suspect that the same track. The media and welfare sector the people making the FOI requests would be welcomed his report. Nonetheless, the gov- the ones complaining and not an opposition ernment is still subject to criticism. How can that is trying to beat up some myth around this be? If we have taken recommendations this and hopes that its fantasies might be- from the Pearce report which is so wel- come fact. comed, if we are doing these things, why are Social Security: Compliance we still being criticised? Senator PAYNE (2.39 p.m.)—My ques- I am concerned about some reporting in tion is to the Minister for Family and Com- relation to this matter. In particular, as a gen- Wednesday, 20 March 2002 SENATE 1089 eral principle, I am very concerned about the detailed a number of recent media reports on use of individual welfare recipients and their those particular individual cases, but I ask difficult circumstances for people to make whether the minister is able to discuss the political points. I use the example—without effect of those reports on public debate with using the name, which was used in the me- the Senate. dia—of a customer with a mental illness. Senator VANSTONE—This example in- This is a very sad story of a family desper- volved a woman whom the media claims had ately trying to help their son get into a better left work to look after her sick son and be- situation with his life. The argument was that cause she had left work she had had an over- this young bloke had some mental difficulty, payment of family tax benefit and she now that we have consistently breached him, and had a debt. What was not in the media was that we are a mean and difficult government. that that particular family’s income exceeded When the facts are checked, this customer, the estimate that they provided to Centrelink on the advice I have, was never breached at by $36,000 and that the family had not up- all. dated their income estimate with Centrelink. The customer was trying to live in inde- So yes, they did have an overpayment be- pendent accommodation. His family were cause they underdeclared by $36,000. desperately trying to get that. They knew that Then there is the case of a recent release would mean he would have to put his forms by Ms Jennie George about two families in fortnightly to get his payments. When he with family tax benefit. The advice that I missed putting in his forms he missed getting have from Centrelink is that one family does payments, but when he put in his forms he not even have a debt. They have probably got the payments. He was not breached. In been contacted by us to encourage them to fact, during this period Centrelink acknowl- adjust their estimates to make sure they do edged the problem that he had and he was not incur a debt. Somehow this has been exempted from an activity test to acknowl- used to suggest that they do. The other fam- edge the difficulty he had while other matters ily in the release raised by Ms George ‘for- could progress, and he is now in a much got’ to mention that the family’s actual in- better situation. As best I know, the journalist come was $56,000 more than the estimate concerned did not bother to contact anyone that they provided to Centrelink and that they in my office to ascertain the circumstances of did not update their estimate during the year. this family, who have now had the matter raised again in order to correct the record. Privilege: Senator Heffernan There is another example I will mention. Senator JACINTA COLLINS (2.45 Senator Payne, if I do not get to the end of p.m.)—My question is to the Minister for this you might provide me with the opportu- Justice and Customs, Senator Ellison. I refer nity to do so. to the Australian Federal Police investigation Opposition Senators—Oh! to which Senator Abetz referred a short while ago. When does the minister expect Senator VANSTONE—The opposition this investigation to be concluded, bearing in may go, ‘Oh,’ but this is an important point, mind that the New South Wales Police con- because the media informs the public about cluded their reinvestigation into the Heffer- what the government is doing. If we are do- nan allegations in the space of 24 hours? ing the wrong thing, we should be chastised Will the minister undertake to make avail- by the public, but the media should get it able to the parliament the results of this in- right when they tell the public what we are vestigation? doing. I use a couple of examples. One is in relation to family tax benefit, where people Senator ELLISON—The first part of that were able to read in the paper that a woman question is one which is not capable of an had left work to look after her sick son— answer. It is an inappropriate question. I can- not dictate how long a police investigation (Time expired) will take or estimate— Senator PAYNE—I ask a supplementary question, Madam President. The minister has Senator Abetz—Nor should he. 1090 SENATE Wednesday, 20 March 2002

Senator ELLISON—and nor should I, as project provides the opportunity for Australia Senator Abetz has correctly said. Nor should to have a remarkably significant and secure I, as the minister responsible, be able to have supply of oil well into the future. This is at a any bearing on the matter—it is a matter for time when our known and existing reserves the Australian Federal Police. The opposition in Bass Strait and other places are running ought to have a good look at the sort of down very rapidly, exposing us to reliance on questions it is asking. I am being asked to Middle East imports, fluctuations in the ex- estimate how long a police investigation will change rates and the costs thereto, and the take. That is an entirely inappropriate ques- infringement of our national security as a tion and it is something for the Australian result. Federal Police. The second part of Senator The current industry minister, this gov- Collins’s question is also a matter for the ernment and I, as the former industry minis- Australian Federal Police and is a question ter, have been supportive of that project and which remains rightly in their domain. we have joined with Labor Premier Beattie Senator JACINTA COLLINS—I ask a in wanting to see that project succeed. We all supplementary question, Madam President. know that it has had some environmental Will the Australian Federal Police be liaising difficulties, mostly relating to fumes and with the New South Wales Police on the re- smell in relation to its production process, sults of their earlier investigation? If so, is it but it is rapidly overcoming those difficul- the case that the Australian Federal Police ties. It does present an enormous opportunity investigation should be concluded expedi- for Australia to have a strong and long-term tiously? Again, I ask the minister a very supply of indigenous oil. They are producing relevant and pertinent question on this mat- commercial product and they have been sup- ter: will the results of this investigation be plying that product to Australian refineries. made public? Unfortunately, as a result of Greenpeace’s Senator ELLISON—Those are opera- activities some of the refineries are saying tional matters and I will not go into them they are not prepared to have their customers while the matter has been referred to the bullied and harassed by Greenpeace activists Australian Federal Police for investigation. It if they use this product in their refineries. I is an inappropriate question. think that is outrageous and this parliament Stuart Shale Oil Project should condemn that sort of action. It is true that the company has indicated to the gov- Senator ALLISON (2.47 p.m.)—My ernment the position it faces if Australian question is to the minister representing the refineries continue to feel bullied and har- Minister for Industry, Tourism and Re- assed into not taking the shale oil product. At sources. Can the minister confirm that the the moment the company is keeping the gov- developer of the Stuart shale oil project in ernment informed of developments. The Queensland recently asked for further finan- government has an excise arrangement with cial assistance from the Commonwealth? If the company which runs to about 2005 and at so, how much was asked for and on what some point the continuation of that arrange- basis and what has been the government’s ment will have to be considered. Senator response? Allison, at this stage all that is happening is Senator MINCHIN—As everyone who that the company is keeping us informed of follows the press reports will know, the com- developments and we have indicated very pany has indicated that, as a result of what I strongly our condemnation of Greenpeace’s think is outrageous behaviour by Green- activities in relation to this project. peace, certain oil refineries are not in a posi- Senator ALLISON—I ask a supplemen- tion to take the product from the Stuart shale tary question, Madam President. The minis- oil project. I think that is very unfortunate. ter has not answered my question at all and I As the former industry minister, I join with repeat it: how much was asked for by the Labor Premier Beattie in saying that the ac- Stuart shale oil project developers? Have tions of Greenpeace are outrageous. This they again asked the government to extend Wednesday, 20 March 2002 SENATE 1091 the excise exemption for their oil and what is thought the attack had any credibility, why the government’s position on that request? Is did he not act to have the allegations prop- it likely that SPP will need ongoing financial erly investigated? assistance from the government given that Senator ELLISON—Senator Ludwig’s they recently said that they will continue to question is without any foundation. He obvi- incur operating losses during the develop- ously has not seen the statement by the At- ment of stages 1, 2 and 3? Can the minister torney-General dated 19 March where he confirm that these ongoing operating losses said: are a result of their technology rather than As I have said previously, Justice Kirby is a dis- any action Greenpeace might have taken? tinguished jurist with an enormous capacity for Senator MINCHIN—As I think Senator work. He enjoys a fine legal reputation in Austra- Allison would know, we provide an effective lia and is held in high standing overseas. He has exemption from excise on petrol refined made a very significant contribution to public life from naphtha produced from shale oil. We do in Australia. I have known him for just on 40 it quite deliberately because we want this years and our paths have crossed on many occa- industry to proceed. The excise exemption is sions. only available if that naphtha is refined in He then went on to say that it is regrettable Australia. That is what is causing the com- that the judge received this distressing pub- pany problems with Greenpeace’s outrageous licity over the last few days. He also stated: activity. The excise exemption is capped at The public, I am confident, will accept that the 600,000 barrels of oil a year and will cease, allegations have been completely withdrawn. as I said before, in 2005. To date the project I think that the Attorney-General has has received approximately $2.8 million in summed it up there very well. In fact, last excise exemption. We are meeting with pro- week he stated that the judge has a fine legal ponents of this project in relation to the reputation. Senator Ludwig has obviously question of any extension to that excise ex- chosen to ignore those comments. emption, but we have made no decision on Opposition senators interjecting— that matter. The PRESIDENT—Order! Senators on Privilege: Senator Heffernan my left should be aware that I need to hear Senator LUDWIG (2.52 p.m.)—My the answer that is being given. At the present question without notice is directed to Senator time it is very difficult. Ellison, the minister representing the Attor- Senator ELLISON—The matters raised ney-General. Does the minister agree with by Senator Heffernan have been the subject the Attorney-General’s statement yesterday of a statement by him, withdrawing and that there was no need for him as the nation’s apologising for those matters. The matter is first law officer to defend Justice Kirby or now finished. That is the conclusion of it. It the High Court from the despicable attack by has been dealt with. Senator Heffernan? Does the minister sup- port the Attorney-General’s reasoning for In relation to the High Court, which was this spineless position when he states that the other part of Senator Ludwig’s question, ‘Justice Kirby’s conduct as a High Court there has been no attack on the High Court, judge was not in question’? Has the Attor- and the Attorney-General has made that very ney-General even read Senator Heffernan’s clear. A lot of people have tried to beat up speech last Tuesday night when he said, this whole matter as an attack on the High amongst other things, about Justice Kirby’s Court, and the Attorney-General has rejected role as a judge: that. The Attorney-General has said that the judge in question enjoys a very good reputa- This judge ... clearly is not fit and proper to sit in judgment of people charged with sex offences tion and he has made a statement to that ef- against children. fect. He has said that it is regrettable, in rela- tion to the events that have taken place, that Why has the nation’s first law officer main- the judge has had that adverse publicity. I do tained his refusal to defend a High Court not think the Attorney-General can be any judge from this baseless attack or, if he 1092 SENATE Wednesday, 20 March 2002 clearer than that. I think that his conduct has Telecommunications: Media Services been appropriate. Senator BRANDIS (2.59 p.m.)—My Senator LUDWIG—Madam President, I question is directed to the Minister for ask a supplementary question. Didn’t Senator Communications, Information Technology Heffernan also state last Tuesday night that and the Arts, Senator Alston. Will the min- ‘this judge fails the test of public trust and ister inform the Senate of the government’s judicial legitimacy as set out by the Chief commitment to ensuring consumers continue Justice of the High Court’? Given that this is to benefit from strong competition in tele- clearly an attack by Senator Heffernan on the communications? What is the role of Telstra institution of the High Court and all the in delivering new media services to the Aus- judges of that court, why did the Attorney- tralian public? Is the minister aware of any General not immediately act to either defend alternative proposals in this area and what the court or to have the allegation fully in- their impact would be? vestigated? The Attorney-General did nei- Senator ALSTON—This is a very im- ther. portant question from Senator Brandis, be- Senator Abetz—Madam President, I raise cause he would be aware of the virtues of a point of order. Is it appropriate for some- competition, particularly in the telecommu- body to again repeat and quote what has been nications arena. In 1997 we introduced full determined to be a breach of privilege and and open competition and, since that time, therefore trawl the allegations through the we have issued more than 70 carrier licences, chamber again? I would ask for your ruling international calls have fallen by about a on that. It seems strange that if you cannot third and domestic long-distance calls have say something in the chamber because it fallen by about a half—or it might be the breaches standing orders you should not be other way around. But, in any event, there allowed to then regurgitate it in the form of a have been significant changes across the question. board in terms of price reductions, improved The PRESIDENT—As I understand it, quality of services and a better range of Senator Ludwig is asking a question about products. Of course, we have had a couple of the conduct of the Attorney-General and is finetuning examples of making the regime referring to a speech which was made in this even more transparent, requiring more in- chamber. I do not think there is a point of formation to be made available and speeding order, but I shall have a look at your point of up the process. We are now responding to the view more closely. Productivity Commission. Senator ELLISON—I have nothing fur- There is a lot happening on this front, and ther to add to my previous answer other than I would have thought that there would be to say that Senator Heffernan made a com- universal agreement across this chamber that prehensive statement whereby he apologised competition has delivered the goods in tele- for statements he had previously made and communications. Certainly that was the po- withdrew from his previous stance on this sition of the Labor Party prior to the last matter. I think it does the Senate no great election because, whenever the issue was service for Senator Ludwig to trawl through raised, Mr Smith, the then shadow minister, that statement and repeat what was said. The was running around claiming credit, saying: matter is finished. I stand by what I said in ‘Really, all of these changes were drafted by relation to the Attorney-General. Michael Lee. The Labor Party put the regime in place and was very proud of it.’ Opposition senators interjecting— Now, of course, you have this guy out The PRESIDENT—Senators on my left there, Mr Tanner, who seems to be a con- will come to order to allow question time to stituency of one. Not a day goes by when he proceed. is not running his own agenda on issues. He Senator Chris Evans interjecting— is clearly a part-time shadow communica- The PRESIDENT—Senator Evans, you tions minister and a full-time aspirant for a are out of order. leadership position, and that means that he is Wednesday, 20 March 2002 SENATE 1093 determined to distance himself from the La- Mr Crean is just going to sit back and cop bor Party on all of these issues. He is now this sort of nonsense because, quite clearly, saying that the competition regime is failing none of this is done in consultation. I would and that we have a regulatory regime that is be amazed if any of this has been through supposed to deliver but does not. In other shadow cabinet. (Time expired) words, the regime they claim to have in- Health: Program Funding vented six months ago is now something he thinks is on the nose. Similarly, he is saying Senator McLUCAS (3.03 p.m.)—My that Telstra should not be investing in a mo- question is addressed to Senator Patterson, bile phone network or a wholesale data net- the Minister for Health and Ageing. Can the work in Hong Kong and other parts of Asia minister confirm that the Prime Minister has and that these are inappropriate investments. now received the reports he requested from Of course, before the election Mr Smith was the departments of health and finance con- saying that these investments do not put Tel- cerning the Wooldridge House scandal? In stra’s domestic infrastructure at risk and pro- the interests of transparency and account- vide the company with an ability to secure ability, when will those reports be tabled in the delivery of communication services parliament? If they cannot be tabled today, across Australia. So you have these diametri- why can’t they be? cally opposed views. Senator PATTERSON—This is another I do not know where Mr Tanner is coming example of the Labor Party asking: ‘When from. How does he suddenly decide that Tel- was this done? Where will it been done? stra should be basically a low-grade, back- What were people wearing?’ I just want to water utility—mums and dads and widows remind honourable senators that the Prime and orphans—with no growth strategy? Ba- Minister has received those reports. He is- sically, he wants to put them in a straitjacket. sued a statement on Sunday saying that he Not only does he not want them to be in- will look at those reports and that he has re- volved in any offshore activity—despite the ferred them to the Auditor-General. When he fact that they probably invested in at least a gets the report back from the Audi- dozen countries under Labor—but he also tor-General, he will make a decision as to wants to say that they should not be involved what he will do with those two reports. in media organisations. Of course, Telstra Senator McLUCAS—Madam President, had a 10 per cent stake in Channel 7 some I ask a supplementary question. I understand years ago under the Labor Party. from your answer that the Prime Minister has We had Mr Beazley saying just before the sent those reports to the Auditor-General, but election that Telstra’s recent consideration of can you just confirm that for the record? acquiring PBL did not go ahead but not Also, will those reports be provided in full to having access to scrip transfers was not a the parliament? critical factor. Again, the Labor Party has an Senator PATTERSON—He has received entirely different view from the view of the the reports and he said, ‘I have decided to loose cannon, Mr Tanner, who seems to be send the reports to the Auditor-General, Mr out there running his own agenda. I think we Barrett.’ He will report back, I presume, and all know what is really going on here: he still issue another statement when he receives that hankers for what he was canvassing with report back from the Auditor-General. Macquarie Bank before the election—in Senator Hill—Madam President, I ask other words, he is in break-up mode. He that further questions be placed on the Notice wants to hive off Telstra’s retail services Paper. from its infrastructure. He wants to turn it ANSWERS TO QUESTIONS ON into an absolute basket case, controlled by NOTICE government, where you would never get any decent price increases and where you would Questions Nos 105, 107 and 115 never have any opportunity for new technol- Senator ALSTON (3.06 p.m.)—I table a ogy to flow through. So all I ask is whether document that provides explanations for de- 1094 SENATE Wednesday, 20 March 2002 lays in answers being provided to Senate recharged when the credit is exhausted. While questions. credit remaining on these after their expiry date is not redeemable, customers can transfer the re- QUESTIONS WITHOUT NOTICE: maining credit to another pre-paid card prior to ADDITIONAL ANSWERS the expiry date of the old card. Telstra: Services and Sponsorship All prepaid cards have an expiry date to ensure Senator ALSTON (Victoria—Minister that Telstra can manage its phonecard systems. It for Communications, Information Technol- enables Telstra to make technical changes to its ogy and the Arts) (3.06 p.m.)—I seek leave to operations and to enable replacement by more modern alternatives. It also enables Telstra to incorporate in Hansard a further response to remove expired card numbers from the system to a question asked by Senator Harris of me in ensure that there are no ongoing capacity prob- question time yesterday. lems. Leave granted. When the credit limit on a phone card has been The answer read as follows— exhausted or the card has passed its expiry date, no calls can be made using that card. On 19 March 2002 Senator Harris asked me a However, access to the 000 emergency service is Question Without Notice regarding: available from any telephone without the need for • whether Telstra has included or intends to phone cards. include expiry dates on phone-cards and Apart from 000, Telstra also offers reverse charge would this expiry date affect the use of these calls for situations where people do not have the phone cards for emergency calls? coins or card to pay for such calls. • whether Telstra shut down the Easymail Easymail service as of 13 March 2002? Telstra was planning to shut down its Easymail • whether Telstra is providing considerable service on 13 March. However, in response to sponsorship for racing cars? customer feedback, the closure date has been I undertook to provide additional information: I delayed until May 2002. seek leave to incorporate the response in Hansard. Telstra is now also offering an Easymail for- Although Telstra is partially government-owned, warding facility for one year. Telstra has advised Telstra has been an independent corporation since that it will be contacting its Easymail customers 1992 and its board and management are responsi- in March with further details, including arrange- ble for the day to day running of the company’s ments for alternative services. operations. Racing Sponsorship Telstra has advised as follows about the matters On 29 January 2002 Telstra announced its contin- raised by Senator Harris: ued support of Australia’s latest Formula One Phone card expiry dates driver, Mark Webber, who has been appointed to the Minardi team. There are two basic types of phone cards—pre- paid phone cards for use at public pay phones and Telstra has supported Mark Webber for a number “Say G’day” and “Phoneaway” cards for use from of years through its subsidiary Pacific Access. any telephone service using an access number. QUESTIONS WITHOUT NOTICE: The current pre-paid phone cards cannot be TAKE NOTE OF ANSWERS topped up or the credit value transferred to an- Privilege: Senator Heffernan other card. The expiry date is clearly printed on the card and these cards must have at least an 18 Senator FAULKNER (New South month usage life when sold. Wales—Leader of the Opposition in the Sen- Prior to the introduction of the current phonecard ate) (3.07 p.m.)—I move: system, pre-paid phone cards did not have an That the Senate take note of the answers given expiry date. However, on the introduction of the by the Special Minister of State (Senator Abetz) new card system, Telstra introduced a replace- and the Minister for Justice and Customs (Senator ment program whereby customers could arrange Ellison) to questions without notice asked today to receive a replacement card for the remaining relating to remarks made by Senator Heffernan value, so as not to disadvantage customers hold- concerning a judge of the High Court of Austra- ing old cards. This program is still available. lia. The “Say G’day” and “Phoneaway Cards” also Today we have heard further fudging by have at least an 18 months usage life and can be Senator Abetz over the status of the investi- Wednesday, 20 March 2002 SENATE 1095 gation into the phoney Comcar records that Senator FAULKNER—I make this point, were used by Senator Heffernan to smear Senator Calvert, because it is an important Justice Michael Kirby in the Senate chamber. point. We know that the integrity of an emi- Instead of the obfuscation by Senator Abetz, nent judge has been smeared in this chamber. it would have been much better just to come We know an apology was offered and was clean and tell the truth to the Senate about accepted. But I also make the point, of the status of those departmental investiga- course, that the professionalism of Com- tions. Were extracts of the documents monwealth car drivers has been questioned. I checked by the Department of Finance and think it ought to be placed on the record that Administration two years ago and found to as far as I am concerned—and I believe be bogus? Were there other bogus documents many colleagues in this place think the same checked by the department? way—the professionalism of Commonwealth What we do know is that some two years car drivers is not in question. I hope that the before Mr Crean and Mr Brereton discredited government would accept that as well. the document that appeared in the Sun- Senator Abetz seems to think that this is- Herald newspaper—which, I might say, took sue is over. He thinks that this is small pic- them less than 24 hours—forged material ture stuff. But I have to say that is absolutely had been discredited by a departmental in- self-inflicted amnesia on Senator Abetz’s vestigation. If the Department of Finance and part. What the opposition is on about here is Administration found documentary evidence, one of the most grievous acts of abuse of the apparently being peddled around the place by parliamentary process that we have seen in Senator Heffernan, to be forged, you would the history of this place. As we now know, it think the red flag would go up. You would involves a forged document. Mr Howard said think someone might just accept some of the it is boring. Senator Abetz said it is time to warning signals—and that in the year 2000. move on. That is wishful thinking and they Wouldn’t Senator Heffernan have been know it. The parliament and the Australian told—and the Prime Minister and the Secre- people are entitled to proper answers. (Time tary of the Department of the Prime Minister expired) and Cabinet, Mr Moore-Wilton? Everyone in Senator LIGHTFOOT (Western Austra- the government was aware of Senator Hef- lia) (3.12 p.m.)—If one were to take seriously fernan’s obsession. Documents prepared as the words that Senator Faulkner has said— vicious slanders were floating around the that he and his party, the Australian Labor corridors of Parliament House, and this be- Party, represent a bastion of all things that haviour probably could have been killed are decent, wholesome and good for politics stone dead about two years ago. and for Australia—we would have no argu- We hear of a Commonwealth car driver, ment except that what Senator Faulkner says Mr Wayne Patterson, who says in today’s is completely duplicitous. Does Senator Courier-Mail that the document published on Faulkner believe that we hold sacred all the the weekend was an example of things. We institutions in Australia and that he and his do not know what that means. I hope some of colleagues, his confreres in the party, would the police investigations now being carried not attack those? Does Senator Faulkner be- out get to the bottom of that. We do not lieve that nowhere in Australia have ALP know whether this meant the document was members attacked institutions and individual prepared to show Senator Heffernan what to people? look out for in genuine Comcar dockets. Let me mention just a few instances where Maybe those matters will be investigated they have. I am not just talking about the now. But we are entitled to an explanation of slander of the Baillieu family, and a dead what was investigated in the Department of man at that, which is about as low as you can Finance and Administration, who conducted go. I am not just talking about the slander of the investigations, what the findings were of Justice Callinan, a recent and a great addition those investigations and who was told. to what is already a great fraternity of High Senator Calvert interjecting— Court judges. And I am not just talking about 1096 SENATE Wednesday, 20 March 2002 those other people who have been slandered stunt, to do any political damage to Carmen Law- in this place on a daily basis. I can think, rence needs to understand that he or she will be though, more specifically of when I was in the subject of political attack by friends of state parliament. A woman whose name was Carmen Lawrence. Penny Easton had a mother—a delightful He said that on 8 May 1995, as quoted in the woman—whose name is Mrs Barbara Australian. What did the former Prime Min- Campbell. False documents were tabled by ister Mr Keating say? I do not like talking the current member of another place, Dr about former prime ministers, but on this Carmen Lawrence, and simultaneously by occasion the seriousness of the situation war- the Hon. John Halden in the upper house of rants that I say this. Mr Keating said, ‘Even Western Australia, that were so slanderous, if it is found against Carmen Lawrence, so so upsetting and so devastating in the obvi- what?’ He is talking about the royal commis- ous lies that these documents contained that sion set-up—‘So what? I mean, it is a politi- this poor, dear woman— cal matter.’ He is saying that the royal com- Senator Cook interjecting— mission did not have the skill or did not have the integrity to bring down a decision that Senator LIGHTFOOT—whom I hap- was not political. Mr Keating went on to say: pened to know very well, a very decent woman, a hardworking woman, a mother, a This thing is that there is no question here about any serious illegality or misappropriation or woman who had put herself through law maladministration of public duties. This is really school at mature age— about an inquiry into what was going on politi- Senator Cook interjecting— cally in the former cabinet. Senator LIGHTFOOT—took her life as This is not to take note of a young woman, a a result of them. Is that decency? Is that ap- young mother, who died as a result of misin- propriate? Is that all? I will tell you what it is formation being tabled in parliament and the all— misuse of parliament to an absolute degree. Senator Cook interjecting— We are talking about people who are yet to apologise. Yet on this side of the House we Senator LIGHTFOOT—Let me con- have the Hon. Bill Heffernan—and I am not tinue and I will get on, if I have time, about defending what he said because it was quite Senator Cook and the black hole that he left patently wrong—who at least has apologised when he lied to the Australian people. in a fashion that must be acceptable to eve- The DEPUTY PRESIDENT—Order! ryone; he is genuinely and sincerely sorry. Senator Cook, would you please come to When is the other side going to apologise order. about Ms Penny Easton taking her life? Senator LIGHTFOOT—Do you know (Time expired) what a member of another place, the federal Senator CONROY (Victoria) (3.17 member for Perth, Mr Stephen Smith, said? p.m.)—It is appropriate that the government The DEPUTY PRESIDENT—Senator wheel out Senator Lightfoot to defend Sena- Lightfoot, I believe you also uttered some tor Heffernan today because there was only words that were unparliamentary. Please one Liberal member of parliament anywhere withdraw them. in this country—not Senator Brandis, not Senator LIGHTFOOT—If I uttered Senator Hill, not Senator Calvert—who was words that were unparliamentary, then of prepared last week to defend Senator Heffer- course I would be happy to withdraw those nan publicly, and on the weekend who was insofar as they are unparliamentary or even the bunny? For anyone who has not guessed offensive. A member in the other place, Mr yet, it was Senator Lightfoot. Senator Light- Stephen Smith, the member for Perth, said foot came out all guns blazing on behalf of about the Easton inquiry that was set up by Senator Heffernan on the weekend. Senator Lightfoot probably still thinks the bogus the Western Australian government: document was real. What a joke of a de- ... any judge, any former judge, any would-be fence—trying to find a way to justify what judge who lends himself or herself to a political Senator Heffernan got up to. It is a joke, Wednesday, 20 March 2002 SENATE 1097

Senator Lightfoot, and you should apologise would not have gone through this last tragic along with Senator Heffernan. week, this last pathetic week, because the But I am indebted to Michelle Grattan in AFP investigation would have got to the today’s Sydney Morning Herald for the first heart of who bodgied up these documents, line in the first paragraph of her piece today. and then Senator Heffernan perhaps would The truth was always out there. The first line not have believed this same individual, as says: Senator Heffernan has indicated that he got both sets of documents from the same per- When they wanted to find the truth, it took John Howard and Bill Heffernan no time at all. son. If the department had done its job or, more importantly, if the minister of the day And that is what today’s question time goes had done his job and referred the matter to to the heart of: when did the Prime Minister the AFP, the AFP would have had Senator and the Department of Finance and Admini- Heffernan and the Comcar driver in—even stration know? Why can’t we get a simple though they would have spoilt his Olym- answer? We had stonewalling all day yester- pics—and we would have got to the bottom day. What documents were the department of who was producing fake, bogus, fraudu- supplied with? What documents were sup- lent documents and we would not have had plied to the FOI officer? Why won’t Senator to put Justice Kirby through the last four Abetz just say, ‘No documents were sup- years of smear and innuendo from the ghost plied’? What did he say? He said, ‘It would who stalks these corridors. be very unusual if, when employing an FOI officer, you gave them documents.’ Yes, we Parliament would be well served if Sena- agree, Senator Abetz, but what about an- tor Heffernan took the advice of his leader swering the question? and not only resigned but also did the big walk into the snow. That is what should hap- You were quite willing to be specific pen here: Senator Heffernan should give it about Dr Boxall, but you are not prepared to away because he has brought his leader, his rule out that the department was supplied party and this parliament into disrepute, and documents by the Courier-Mail journalist Mr it is disgraceful to see a cover-up still con- Paul Whittaker. All it would have taken to tinuing from Senator Abetz and this govern- put this issue to bed for Senator Abetz is a ment. These are simple questions. They are no. Where was it? He bravely wanted to spe- not about what the police investigations are cifically defend Dr Boxall on Dr Boxall’s looking at; they are about process. (Time ex- recollections, and we accept that. But we pired) want to know: who received the documents, who looked at them, who tested them and Senator BRANDIS (Queensland) (3.22 who passed them onto the department for p.m.)—I think we need to draw back from verification? The department admits that it the partisanship of this and recognise that received some documentation from Senator these are issues of very peculiar sensitivity. Heffernan that purported to be departmental When Senator Heffernan stood in this place records, but it says they were fabrications, on Tuesday evening last week and gave a they were bogus. What did the department speech that we all regret was ever given, he do? Somebody is out there—in other words, caused terrible harm. He caused terrible hurt Senator Heffernan—peddling extracts from to Justice Kirby and to Justice Kirby’s loved Comcar records that turn out to be bogus and ones and family. Senator Heffernan now re- the department does nothing. Why? Why grets that. He caused harm to the reputation weren’t the police called in to investigate the of the High Court, and many believe that he bogus documents? Who supplied them caused harm to this institution. But I believe would have perhaps been the first question. that Senator Heffernan, though he acted wrongly, acted in good faith, in the sense that Perhaps if Senator Heffernan had received he believed in what he was saying. We now a phone call from the AFP, ‘Come in, Sena- know that he was misled. Anybody who was tor Heffernan, we’d like to talk to you about in this chamber at half past three yesterday these bogus documents you’re circulating afternoon and heard Senator Heffernan’s un- and that you’ve given to the department,’ we 1098 SENATE Wednesday, 20 March 2002 reserved retraction and apology to Justice Senator LUDWIG (Queensland) (3.27 Kirby could not but have been moved and p.m.)—I rise to speak on the motion to take struck by the dignity with which Senator note of the answer to the question I asked of Heffernan humbled himself to do that. He Senator Ellison representing the Attorney- ought to have done so, and he did so as a General. It is interesting to note that Senator gentleman. Brandis says that that is the end of it and we Shortly afterwards, Justice Kirby issued a should move on, particularly in relation to statement. That statement was tabled in this the criticism levelled at the High Court. place. It is in the press this morning. I do not However, the Attorney-General has not taken think it has ever been read in this place. Let that view. Interestingly enough, in two press me read an extract from it. Justice Kirby releases the Attorney-General commented on said: this particular issue. He commented on it first on 14 March where the topic states I accept Senator Heffernan’s apology and reach out my hand in a spirit of reconciliation. I ‘High Court’s integrity not in question’. At hope that my ordeal will show the wrongs that that stage the Attorney-General was trying, I hate of homosexuals can lead to. suspect, to deflect criticism not of the High Out of this sorry episode, Australians should Court but of his role as the first law officer, emerge with a heightened respect for the dignity because the first law officer’s proper role is of all minorities. And a determination to be more to defend the judiciary from attack. He goes careful in future to uphold our national institu- on in that press release to say ‘some com- tions—the Parliament and the Judiciary. mentators’, but further on he gets to the point That was a most gracious and magnanimous in question where he says: statement under the circumstances, and it High Court judges have both the right and the should be accepted by all in this place, put- ability to address any personal criticism addressed ting party conflict behind us, in the spirit in against them. which it was intended, just as Justice Kirby So, as the first law officer, his view clearly graciously accepted Senator Heffernan’s un- seems to be that matters of personal criticism reserved apology and retraction in the spirit should be addressed by the High Court in which it was intended. judges themselves. That is a disappointment, I am sure that, if there is one man in Aus- but it begs the question of an attack on the tralia today who does not want to see this High Court itself. His answer, strangely issue being drawn down into the mire of enough, seems to be, as pointed out by the party political point scoring, it is Justice Prime Minister, that Senator Heffernan’s Kirby. In the cities and towns of this nation I speech has highlighted the need for a proto- believe the Australian people have had a sur- col, as recommended by the Australian Law feit of this in the last eight days. They have Reform Commission, for dealing with alle- seen a most eminent and distinguished man, gations against federal judges. So the matter Justice Kirby, besmirched by false allega- does not end here. It does not end with the tions. They have seen a very significant par- apology by Senator Heffernan. We now have liamentarian, Senator Heffernan, humbled, the Attorney-General saying, against his first and they have seen him withdraw his allega- statement really, that there is a need for tions with dignity. We have seen the victim something to be done. If he is not going to of those allegations respond with grace and take on the role of defender of the High forgiveness. Surely, that ought to be the end Court, then protocols will have to be devel- of it. It does the High Court no good, it does oped, and he will now reach back in time and this chamber no good, it does Mr Justice pick up a review. It appears that the state- Kirby no good for this to be now used by an ment has emanated from report No. 89, opposition as an occasion for cheap party Managing justice: a review of the federal political point scoring. Let us heed what the civil justice system, 2000. I would be helped Australian people plainly want and put this by the Attorney-General if he did say that episode behind us and get on with the busi- was where it came from. Page 201 of the ness of governing. report says: Wednesday, 20 March 2002 SENATE 1099

The Commission believes it is important for the That the Senate take note of the answer given Federal Parliament to establish a general standing by the Minister for Revenue and Assistant Treas- procedure in advance of any controversy or crisis urer (Senator Coonan) to a question without no- in atmosphere surrounding a particular allegation. tice asked by Senator Murphy today relating to This is particularly where we are now, I sus- taxation and forest industries. pect. But recommendation 12 goes on to say: Despite the fact that she seems to take a very The Federal Parliament should develop and adopt patronising view towards those who ask a a protocol governing the receipt ... question of her, the reality is that the Minis- And it goes on. So we find no answer at the ter for Revenue and Assistant Treasurer sim- time the report was made by the Attorney- ply does not have a clue. I asked the minister General, no answer to the recommendation about the revenue implications of the gov- by the Attorney-General, but when it is con- ernment’s proposed reintroduction of the 12- venient, when the High Court has been at- month rule for the forest plantation industry. tacked and he fails in his defence of it, he The government revenue cost estimate for finds a paragraph and a recommendation to that is $25 million per annum. Mind you, rely on. It is particularly poor form really to that is for the coming financial year—the reach back and grab it. He is now going to next financial year—and then somehow it deal with the protocol. We hope he does. We drops to $5 million for the subsequent finan- will keep him to the task. If he is going to cial year. develop a protocol, then let us see it devel- The reality is that, on the figures I read out oped. in my question to the minister, it is going to You then go back and look at what he said be more like $100 million per year. That is and his view about the judiciary and their the point the minister failed to address in her own defence. The Attorney-General made a response. As I said, she just wants to go on speech titled ‘Who Speaks for the Judges?’ with some patronising nonsense instead of presented on 3 November 1996. I understand taking a very important question. Even based he has gone back to this speech a number of on today’s figures and last year’s figures for times in justifying why he does not defend investment in the forest plantation sector, the the High Court or individuals within the revenue costs are way above anything the High Court. It is interesting to see that, on government has put into its calculations. I the issue of privilege, paragraph 34 states: say again to the minister: bring out the mod- elling. If the government feels that $25 mil- This may be appropriate where criticism might lion is the figure, then put the modelling on significantly impair public confidence in the jus- the table so the modelling can be assessed. tice system. Furthermore, attacks from parlia- mentarians, particularly when made under pro- Do it now so that the Senate is able to make tection of parliamentary privilege, are matters a real judgment about the costs of the intro- upon which the advice or support of the Attorney- duction of this legislation. General might properly be sought or given. It is in I support the reintroduction of the 12- the interests of all arms of government that the month rule. I want it to be accurately costed integrity of democratic systems including a strong and to reflect real costs. That is what is im- and independent judiciary be entrenched and portant. For this minister to stand up and properly understood by the Australian people. respond to me saying, ‘I do not understand,’ I The Attorney-General has failed his own challenge the minister: bring out the model- test. He set himself a test in a speech, para- ling and let us have a look at it; let us have a graph 34, and he fails. He does not go back proper analysis of it and test the theory of the and say anything about this. That is where he government as to the cost of the $25 million. should have defended the judiciary. (Time If I am wrong, I will apologise to the minis- expired) ter for that. But I want to see whether or not Question agreed to. the modelling will stack up against the mod- Taxation: Forest Plantation Industry elling I have had done. I asked a question of the minister last week about mass marketed Senator MURPHY (Tasmania) (3.32 schemes. Again, she had no idea at all. p.m.)—I move: 1100 SENATE Wednesday, 20 March 2002

Senator Cook—You caught her out. Northern France covering eight World Senator MURPHY—I take Senator War 1 cemeteries containing 1 200 graves, including those of 61 Australians Cook’s interjection: I caught her out. That is who fell in action; true. The Taxation Office has agreed that tests of commercial viability can be and in- (b) these plans will also affect a large unknown number of those lost in action deed are conducted, yet the minister did not but never found; seem to have a clue about that. When the Taxation Office today issues a product ruling (c) this proposal has enormous con- sequences for the memories of many for any investment scheme, it actually does a Australian families and therefore must commercial viability test. It has to make sure be resisted; there is a reasonable expectation of profit (d) the Australian Government has had derived from a tax effective investment so significant prior notice of these plans and that there is some return to revenue. That is has been dilatory in protesting to the my point with regard to the question I asked French; today. If this costs the government $100 mil- (e) the Australian Government has only in lion and the expectation is that it will get the recent days made representations to the money back in 10 years, the net present Commonwealth War Graves Com- value of that money is at least 50 per cent mission; and less. That is the reality for the government. I (f) as yet no formal representations have say to the minister: bring out the modelling, been made to the French Government by give us a look at it, and we will see what the the Australian Government to register costs really are. Australian objection to the desecration of Question agreed to. this land by such a development. PETITIONS Senator Cooney to move on the next day of sitting: The Clerk—A petition has been lodged That the Standing Committee for the Scrutiny for presentation as follows: of Bills be authorised to hold a public hearing on Health: MRI Machine, Princess Margaret the provisions of the Criminal Code Amendment Hospital (Espionage and Related Offences) Bill 2002, the To the honourable the President and members of Security Legislation Amendment (Terrorism) Bill the Senate in parliament assembled. 2002 [No. 2] and the Suppression of the Financing of Terrorism Bill 2002 for the purposes The petition of the undersigned shows: of clarifying points raised by the committee’s The federal government refuses to grant an oper- legal adviser in relation to the above bills. ating licence to Princess Margaret Hospital for a Senator Bartlett to move on the next day magnetic resonance imaging machine. of sitting: Your petitioners ask/request that the Senate should: That the following bill be introduced: A Bill for an Act to amend the Great Barrier Reef Immediately grant an operating licence to Prin- Marine Park Act 1975 to provide for an extension cess Margaret Hospital to operate a magnetic of the boundaries of the Marine Park. Great resonance imaging machine. Barrier Reef Marine Park (Boundary Extension) by Senator Ian Campbell (from 2,939 Amendment Bill 2002. citizens) Senator Forshaw to move on the next Petition received. day of sitting: NOTICES (1) That the following matter be referred to the Finance and Public Administration Presentation References Committee for inquiry and Senator Mark Bishop to move on the report by 12 December 2002: next day of sitting: Recruitment and training in the That the Senate notes that: Australian Public Service (APS). (a) the French Government plans to (2) That, in considering this matter, the construct a new three runway airport, committee examine and report on the estimated to cost $A19 billion, in following issues: Wednesday, 20 March 2002 SENATE 1101

(a) recruitment, including: Senator Crane to move on the next day (i) the trends in recruitment to the of sitting: APS over recent years, That the Rural and Regional Affairs and (ii) the trends, in particular, in relation Transport Legislation Committee be authorised to to the recruitment to the APS of hold a public meeting during the sitting of the young people, both graduates and Senate on Thursday, 21 March 2002, from 4 pm, non graduates, to take evidence for the committee’s inquiry into (iii) the employment opportunities for the administration by the Department of Transport young people in the APS, and and Regional Services of Australian Motor Vehicle Standards under the Motor Vehicles (iv) the efficiency and effectiveness of Standards Act 1989 and Regulations. the devolved arrangements for re- cruitment in the APS; Senator Brown to move on the next day of sitting: (b) training and development, including: That the Senate— (i) the trends in expenditure on train- ing and development in the APS (a) notes: over recent years, (i) that illegal coltan mining in the World (ii) the methods used to identify Heritage areas of Kahuzi-Biega training needs in the APS, National Park and the Okapi Reserve is destroying wildlife, forests and (iii) the methods used to evaluate habitat, particularly the Grauer training and development provided gorilla, the forest antelope, the in the APS, elephant and the chimpanzee, in the (iv) the extent of accredited and ar- Democratic Republic of the Congo, ticulated training offered in the (ii) that world demand for coltan is APS, exploding for use in the electronics (v) the processes used in the APS to industry, in particular for mobile evaluate training providers and phones, training courses, (iii) the call by the World Conservation (vi) the adequacy of training and career Union to boycott coltan produced in development opportunities avail- World Heritage sites in the able to APS employees in regional Democratic Republic of the Congo, areas, (iv) the report to the United Nations (UN) (vii) the efficiency and effectiveness of Security Council by a UN-appointed the devolved arrangements for panel of experts for a moratorium for training in the APS, a specific period on the purchase and (viii) the value for money represented by importing of precious products such the training and development dol- as coltan, diamonds, gold, copper, lars spent in the APS, and cobalt, timber and coffee originating (ix) the ways training and development in areas where foreign troops are offered to APS employees could present in the Democratic Republic of be improved in order to enhance the Congo and in territories under the the skills of APS employees; control of rebels, (c) the role of the Public Service (v) that the Democratic Republic of the Commissioner pursuant to Congo produces less than a quarter of section 41(1)(i) of the Public Service the world’s coltan while Australia Act 1999 in coordinating and currently meets 40 per cent of world supporting APS-wide training and demand and is capable of producing career development opportunities in up to 60 per cent of world demand the APS; and from reserves in Western Australia; and (d) any other issues relevant to the terms of reference but not referred to above (b) calls on the Government to ban the which arise in the course of the importation into Australia of all mobile inquiry. phones and electronic goods that contain coltan produced outside Australia. 1102 SENATE Wednesday, 20 March 2002

Senator Brown to move on the next day Senator Greig to move on 16 May 2002: of sitting: That the following bill be introduced: A Bill That photographs of any senator may be taken for an Act to prohibit certain conduct involving by the media in the chamber whenever that the vilification and incitement to hatred of people senator has the call. on the ground of sexuality, and for related Senator Brown to move on the next day purposes. Sexuality Anti-Vilification Bill 2002. of sitting: COMMITTEES That the Senate considers that Basslink should Selection of Bills Committee be required to place powerlines underground in Report Victoria and Tasmania if it should proceed. Senator CALVERT (Tasmania) (3.39 Senator TCHEN (Victoria) (3.37 p.m.)—I p.m.)—I present the second report of 2002 of give notice that 15 sitting days after today I the Selection of Bills Committee, and I seek shall move that the Fuel Quality Standards leave to have the report incorporated in Han- Regulations 2001, as contained in Statutory sard. Rules 2001 No. 236 and made under the Fuel Quality Standards Act 2000, be disallowed. I Leave granted. seek leave to incorporate in Hansard a short The report read as follows— summary of the committee’s concerns with SELECTION OF BILLS COMMITTEE these regulations. REPORT NO. 2 OF 2002 Leave granted. 1. The committee met on Tuesday, 19 March The summary read as follows— 2002. Fuel Quality Standards Regulations 2001, 2. The committee resolved to reconsider its Statutory Rules 2001 No. 236 proposed Report no. 2 of 2002, for the pres- entation of which leave was refused on 14 The Regulations provide for the implementation March 2002. of a national fuel standards scheme. 3. The committee considered a proposal to refer Paragraph 5(2)(b) provides that the fee payable on the provisions of the Migration Legislation an application for approval for a variation of a Amendment (Transitional Movement) Bill fuel standard may be waived or reduced if the 2002 to a committee but was unable to reach Minister thinks that the fee would cause financial agreement on a reporting date (see appendix hardship for the applicant. However, no criteria 5 for statement of reasons for referral). are specified for determining financial hardship. Senator Ian Campbell, noting the reasons Paragraph 5(2)(c) provides that the fee must be why leave had been refused for the presenta- refunded if the application is withdrawn before it tion of the committee’s draft report on 14 is considered. It is not clear how an applicant will March 2002, expressed a view that the refer- know when an application is to be considered. ral of the Migration Legislation Amendment That is, it is not clear how long a period an appli- (Transitional Movement) Bill 2002 should cant will have to be able to withdraw an applica- not now proceed. He also noted standing or- tion before losing the benefit of a fees refund. An der 33(1)(b) (about voting at deliberative associated problem is that it is not clear what is meetings held during sittings of the Senate) meant by the term ‘considered’. Does it mean and that the committee’s usual method of ‘considered by the Minister’? proceeding was to reserve disagreements for The Minister for the Environment and Heritage resolution by the Senate. advised the Committee that guidance on these 4. The committee resolved to recommend – matters is provided by the department’s Proce- (a) That the provisions of the following dures Manual for Approvals. The Committee has bills be referred to committees as fol- written further to the Minister concerning the use lows: of a departmental manual in these circumstances. Wednesday, 20 March 2002 SENATE 1103

Bill title Stage at which Legislation Reporting date referred Committee Criminal Code Amendment Immediately Legal and Consti- 26 April 2002 (Espionage and Related Of- tutional fences) Bill 2002 (see appendix 1 & 1A for statements of rea- sons for referral) Family Law Amendment Immediately Legal and Consti- 15 May 2002 (Child Protection Convention) tutional Bill 2002 (see appendix 2 for statement of reasons for refer- ral) Migration Legislation Amend- Immediately Legal and Consti- 15 May 2002 ment (Procedural Fairness) Bill tutional 2002 (see appendix 3 for state- ment of reasons for referral) Migration Legislation Amend- Immediately Legal and Consti- 15 May 2002 ment Bill (No. 1) 2002 (see tutional appendix 4 for statement of reasons for referral) Security Legislation Amend- Immediately Legal and Consti- 3 May 2002 ment (Terrorism) Bill 2002 tutional [No. 2] (see appendix 6 for statement of reasons for refer- ral) Suppression of the Financing of Terrorism Bill 2002 (see ap- pendix 6 for statement of rea- sons for referral) Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 (see ap- pendix 6 for statement of rea- sons for referral) Border Security Legislation Amendment Bill 2002 (see appendix 6 for statement of reasons for referral) Telecommunications Intercep- tion Legislation Amendment Bill 2002 (see appendix 6 for statement of reasons for refer- ral) Workplace Relations Amend- Immediately Employment, 14 May 2002 ment (Fair Termination) Bill Workplace Rela- 2002 (see appendix 7 for state- tions and Educa- ment of reasons for referral) tion Workplace Relations Amend- Immediately Employment, 14 May 2002 ment (Genuine Bargaining) Bill Workplace Rela- 2002 (see appendix 7 for state- tions and Educa- ment of reasons for referral) tion Workplace Relations Amend- Immediately Employment, 14 May 2002 ment (Prohibition of Compul- Workplace Rela- sory Union Fees) Bill 2002 (see tions and Educa- appendix 7 for statement of tion reasons for referral) 1104 SENATE Wednesday, 20 March 2002

Bill title Stage at which Legislation Reporting date referred Committee Workplace Relations Amend- Immediately Employment, 14 May 2002 ment (Secret Ballots for Pro- Workplace Rela- tected Action) Bill 2002 (see tions and Educa- appendix 7 for statement of tion reasons for referral)

(b) That the following bills be referred to committees as follows:

Bill title Stage at which Legislation com- Reporting date referred mittee Migration Legislation Amend- Immediately Legal and Consti- ment (Transitional Movement) tutional Bill 2002 (see appendix 5 for statement of reasons for refer- ral) Workplace Relations Amend- Immediately Employment, 14 May 2002 ment (Fair Dismissal) Bill 2002 Workplace Rela- (see appendix 7 for statement tions and Educa- of reasons for referral) tion

(c) That the following bills not be referred • Jurisdiction of Courts Legislation Amend- to committees: ment Bill 2002 • Aboriginal and Torres Strait Islander Com- • Plant Breeder’s Rights Amendment Bill 2002 mission Amendment Bill 2002 • Social Security and Veterans’ Entitlements • Financial Corporations (Transfer of Assets Legislation Amendment (Disposal of As- and Liabilities) Amendment Bill 2002 sets—Integrity of Means Testing) Bill 2002 • Horticulture Marketing and Research and • Taxation Laws Amendment Bill (No. 2) Development Services (Amendment) Bill 2002. 2002 (Paul Calvert) • Ministers of State (Post-Retirement Em- Chair ployment Restrictions) Bill 2002 20 March 2002 • Quarantine Amendment Bill 2002 Appendix 1 • Space Activities Amendment Bill 2002 Proposal to refer a bill to a committee • Taxation Laws Amendment (Baby Bonus) Bill 2002 Name of bill(s): • Trade Practices Amendment (Small Business Criminal Code Amendment (Espionage and Re- Protection) Bill 2002 lated Offences) Bill 2002 • Veterans’ Entitlements Amendment (Gold Reasons for referral/principal issues for con- Card Extension) Bill 2002. sideration The committee recommends accordingly. To allow the committee to scrutinise the provi- sions of the bill. 5. The committee deferred consideration of the following bills to the next meeting: There is bipartisan support for the committee to scrutinise the provisions of the bill at the earliest Bills deferred from meeting of 19 March 2002 possible time, prior to the introduction of the bill • Aviation Legislation Amendment Bill 2002 into the Senate. • Commonwealth Electoral Amendment Bill Possible submissions or evidence from: (No. 1) 2002 Attorney-General’s Department; • Copyright Amendment (Parallel Importation) Members of the Australia intelligence commu- Bill 2002 nity; • Electoral and Referendum Amendment (Roll Commonwealth Director of Public Prosecutions; Integrity and Other Measures) Bill 2002 Wednesday, 20 March 2002 SENATE 1105

Australian Federal Police; Reasons for referral/principal issues for con- State and Territory Government departments; and sideration Representatives of the print and electronic media. Whether the bill properly meets Australia’s obli- gations under the convention. Committee to which bill is referred: Possible submissions or evidence from: Prior to the debate of the bill in the House of Rep- resentatives and introduction of the bill into the Child advocacy groups, family law experts Senate, the provisions of the bill be referred to the Committee to which bill is referred: Senate Legal and Constitutional Legislation Senate Legal and Constitutional Legislation Committee. Committee. The bill was introduced into the House of Repre- Possible hearing date: TBA sentatives on 13 March 2002. Possible reporting date(s): Possible hearing date: To be determined by the committee. To be determined by the committee. (signed) Possible reporting date(s): Sue Mackay 26 April 2002 Whip/Selection of Bills Committee member (signed) ————— Paul Calvert Appendix 3 Whip/Selection of Bills Committee member Proposal to refer a bill to a committee ————— Name of bill(s): Appendix 1A Migration Legislation Amendment (Procedural Proposal to refer a bill to a committee Fairness) Bill 2002 Name of bill(s): Reasons for referral/principal issues for con- Criminal Code Amendment (Espionage and Re- sideration lated Offences) Bill 2002 The bill impacts upon application of natural jus- Reasons for referral/principal issues for con- tice to immigration decisions and the impact of sideration the changes need to be examined. Significant issues contained in this bill, including Possible submissions or evidence from: major increase in penalties for espionage, and UNHCR relating to a number of recent prosecutions, such as Lappas and Wispelaire. The government has Refugee Council also significantly changed this bill from that Amnesty International originally tabled, with the removal of provisions Immigration Advice & Rights Centre relating to non-security official secrets. The Australian Law Council Possible submissions or evidence from: Committee to which bill is referred: Committee to which bill is referred: Senate Legal and Constitutional Legislation Senate Legal and Constitutional Legislation Committee. Committee. Possible hearing date: Possible hearing date: Possible reporting date(s): 22 April 2002 Possible reporting date(s): (signed) (signed) Vicki Bourne Sue Mackay Whip/Selection of Bills Committee member Whip/Selection of Bills Committee member ————— ————— Appendix 4 Appendix 2 Proposal to refer a bill to a committee Proposal to refer a bill to a committee Name of bill(s): Name of bill(s): Migration Legislation Amendment Bill (No. 1) Family Law Amendment (Child Protection Con- 2002 vention) Bill 2002 1106 SENATE Wednesday, 20 March 2002

Reasons for referral/principal issues for con- Criminal Code Amendment (Suppression of Ter- sideration rorist Bombings) Bill 2002 This bill makes a number of changes to the op- Border Security Legislation Amendment Bill eration of the Migration Act, particularly to cer- 2002 tain visa-related matters. The impact of the pro- Telecommunications Interception Legislation posed changes requires full examination. Amendment Bill 2002 Possible submissions or evidence from: Reasons for referral/principal issues for con- UNHCR sideration Refugee Council To allow all non-government stakeholders to un- Amnesty International dertake a comprehensive scrutiny of the numer- ous and detailed matters in this 120 page package. Immigration Advice & Rights Centre Significant issues include creation of new of- The Australian Law Council fences, imposition of life sentence penalties, ca- Committee to which bill is referred: pacity to proscribe organisations, expansion of executive power, increase in policing powers for Senate Legal and Constitutional Legislation customs service and telecommunication powers. Committee. Possible submissions or evidence from: Possible hearing date: A broad range of legal, civil liberties and public Possible reporting date(s): 22 April 2002 interest organisations. (signed) Committee to which bill is referred: Vicki Bourne Senate Legal and Constitutional Legislation Whip/Selection of Bills Committee member Committee. ————— Possible hearing date: Appendix 5 Possible reporting date(s): 3 May 2002 Proposal to refer a bill to a committee (signed) Name of bill(s): Sue Mackay Migration Legislation Amendment (Transitional Whip/Selection of Bills Committee member Movement) Bill 2002 ————— Reasons for referral/principal issues for con- Appendix 7 sideration Proposal to refer a bill to a committee To allow the committee to consider the proposals in the bill. Name of bill(s): Possible submissions or evidence from: Workplace Relations Amendment (Fair Termina- tion) Bill 2002 Committee to which bill is referred: Workplace Relations Amendment (Genuine Bar- Senate Legal and Constitutional Legislation gaining) Bill 2002 Committee. Workplace Relations Amendment (Prohibition of Possible hearing date: Compulsory Union Fees) Bill 2002 Possible reporting date(s): 22 April 2002 Workplace Relations Amendment (Secret Ballots (signed) for Protected Action) Bill 2002 Vicki Bourne Workplace Relations Amendment (Fair Dis- Whip/Selection of Bills Committee member missal) Bill 2002 ————— Reasons for referral/principal issues for con- sideration Appendix 6 Workplace Relations Amendment (Fair Dis- Proposal to refer a bill to a committee missal) Bill 2002 Name of bill(s): Impact of changes to small business em- Security Legislation Amendment (Terrorism) Bill ployment thresholds 2002 Workplace Relations Amendment (Fair Termina- Suppression of the Financing of Terrorism Bill tion) Bill 2002 2002 Wednesday, 20 March 2002 SENATE 1107

Appropriateness of 12 month exclusion for deliberate, ongoing effort to undermine casuals and permanent filing fee the government’s strategy on people- Workplace Relations Amendment (Genuine Bar- smuggling—a strategy that was endorsed by gaining) Bill 2002 this parliament and by the Australian people Workplace Relations Amendment (Secret Ballots late last year. for Protected Action) Bill 2002 Attempts by the Australian Democrats to Extent to which enactment would diminish stymie this legislation include the Selection capacity for legitimate industrial action of Bills Committee meeting on 13 March Workplace Relations Amendment (Prohibition of 2002, when the government initiated a refer- Compulsory Union Fees) Bill 2002 ence of the migration bill to the Legal and Appropriateness of legislation while matter Constitutional Legislation Committee, with a sub-judice; new provisions of the bill. reporting date of 19 March 2002. This refer- Possible submissions or evidence from: ence was proposed to allow the committee to Union and employer groups, Department of Em- consider the bill and to enable consideration ployment and Workplace Relations by the Senate prior to the end of the autumn sitting period. The Democrats denied leave Committee to which bill is referred: for the Selection of Bills Committee report to Senate Employment, Workplace Relations and be tabled on 14 March, resulting in the report Education Legislation Committee. not being tabled prior to the Senate rising on Possible hearing date: TBA 14 March. This action resulted in the bill not Possible reporting date(s): 14 May 2002 being referred to the Legal and Constitu- (signed) tional Legislation Committee last week. The Sue Mackay Selection of Bills Committee met again on 19 March and reconsidered the proposed Whip/Selection of Bills Committee member referrals of bills. The report now being tabled Senator CALVERT—I move: indicates that the Selection of Bills Com- That the report be adopted. mittee considered the proposed reference of Senator ABETZ (Tasmania—Special the migration bill and it says: Minister of State) (3.39 p.m.)—I move the Senator Ian Campbell, noting the reasons why following amendment to the motion: leave had been refused for the presentation of the At the end of the motion add the words: committee’s draft report on 14 March 2002, ex- pressed a view that the referral of the Migration “and, in respect of the Migration Legislation Legislation Amendment (Transitional Movement) Amendment (Transitional Movement) Bill Bill 2002 should not now proceed. He also noted 2002, the bill not be referred to the Legal and standing order 33(1)(b) ... and that the commit- Constitutional Legislation Committee for in- tee’s usual method of proceeding was to reserve quiry and report.”. disagreements for resolution by the Senate. As mentioned earlier today, the Migration Given the actions of the Democrats to thwart Legislation Amendment (Transitional the reference proposed by the government Movement) Bill 2002 is an important part of last week, and given the urgency of this bill, the government’s measures to address the the government now wishes to amend the ongoing problem of people-smuggling. The Selection of Bills Committee report to excise government’s strategy in this area is starting the referral of the migration bill to the Legal to have results. No boats have attempted to and Constitutional Legislation Committee. breach our immigration controls in several This will enable the bill to be brought on for months. Despite speculation about the impact debate this week and will allow the govern- of the monsoon season on boat arrivals, re- ment to manage the orderly transition of cent media reports indicate that people- people from declared countries into Australia smuggling activity is declining. Despite the under exceptional circumstances. claims of the Australian Democrats earlier today, their efforts to subject this bill to Senator BARTLETT (Queensland) (3.43 greater scrutiny are not about upholding the p.m.)—We can tell from what the minister parliamentary process; rather, this is part of a has said that the reasons given this morning as to why this bill should be declared urgent 1108 SENATE Wednesday, 20 March 2002 are basically a load of rubbish. The Senate the content of which also had not been fore- has been misled about the reasons for ur- shadowed. The Democrats proposed that gency that were put forward by the minister they be referred to a committee. We sug- as part of the government’s motion this gested a reporting date in the middle of April morning. and the government said, ‘That’s fine. Actu- Senator Abetz interjecting— ally, you have some more time. Don’t bother reporting back until 15 May,’ which is what Senator BARTLETT—The rationale is in the report. given by the minister just then is that this is an integral part of the government’s strategy Obviously, we do not mind having more to combat people-smuggling. That was not time; to some extent, it is academic because the reason given in relation to why this is the Senate does not resume until 14 May urgent, and nothing that he just mentioned anyway. On the one hand, we have recogni- gives any indication about why it is urgent. tion that two migration bills, including a sig- That is germane to this question because this nificant one dealing with procedural fairness, report is about having proper consideration need proper scrutiny until May; yet the gov- of the bill and the reasons why the bill needs ernment is trying to railroad through this proper consideration. What I did last week in week this bill dealing with transitional not giving leave for the report to be tabled at movement, which is far more significant and an inappropriate time was not to prevent it has potentially much greater ramifications. from going to a committee; it was to defer I remind the Senate that the reasons given until this week consideration of it going to a this morning as to why it is urgent are that committee. Now we see the government some of the people on Nauru or Manus Is- trying to prevent it from being considered by land may be required to enter Australia in the committee. exceptional circumstances, including re- In speaking to this motion and the ceiving urgent medical treatment or provid- amendment moved by the minister, it is ing evidence in people-smuggling prosecu- worth putting the broader situation in con- tions. The government know that there are text. The bill was introduced in the House of not going to be any people-smuggling prose- Representatives a week ago, on Wednesday cutions between now and May which they last week. The meeting of the Selection of need to get people to Australia for. They Bills Committee which occurred after that have already had people who needed urgent was a special meeting called to consider re- medical treatment come to Australia without ferral of workplace relations and security this legislation existing. Unless they are ex- legislation that had been put forward. The pecting a mass outbreak of some serious dis- migration bill was not even on the agenda. ease on Manus Island, then the suggestion The government ambushed the committee that there is going to be a big wave of people with its own reference without the committee needing urgent medical treatment is also ri- even being aware that the bill had been in- diculous. troduced, let alone that it was going to be on The government are putting forward com- the agenda. Then they have the hide to com- pletely false reasons as to why this bill is plain when we want to defer consideration of urgent. That falsity is being compounded by their report. this action in preventing scrutiny of the leg- A clear highlighting of why this is just an- islation in any proper sense. It is ridiculous other shonky exercise by the government in to even go to the pretence of referring a seri- railroading through yet more dubious legis- ous bill like this to a committee one day after lation without proper scrutiny can be seen in it has introduced a report, particularly as the rest of the report. There are two other there are two major amendments to this bill bills here—in fact, a lot of bills have been which still have not seen the light of day— referred, including the security legislation nobody knows what they are. We do not and the workplace relations legislation—but even know the content of the bill. How we these two are migration bills, both of which can refer a bill to a committee when a core were introduced at the same time, some of part of it does not yet exist is simply absurd, Wednesday, 20 March 2002 SENATE 1109 but it is as absurd as all the other fabrications larger categories of people that this may af- and distortions of this government on issues fect. It may well be that people on Manus to do with refugees, so I suppose we should and Nauru are classified as refugees. They not be surprised. will then need to go to their country of reset- Senator ROBERT RAY (Victoria) (3.48 tlement, be it Finland, Ireland or wherever p.m.)—The only contribution that Senator else. Almost certainly, they are going to have Bartlett made that was unknown to me is his to transit Australia to do so. They fall into claim that they were ambushed at the Selec- two classes: the class that is covered by the tion of Bills Committee—I did not know that Border Protection Bill 2001, which affects in terms of this migration legislation. I will only those who land on Australian territory; take his word that that is true, but it is a bit and those who are intercepted at sea, who dissembling to say that the problem is the have no legislative coverage—probably by way it was knocked back. The fact is that the accident or oversight last time. If any of Democrats used—properly, if you like—the those in the second category need to be re- procedure of this place to talk out discussion patriated out of Australia to a third country on this so that the Senate could not make a for resettlement, there is nothing in the cur- decision last week. They talked it out to a rent law to stop them from making a fresh set point where debate was guillotined so that of refugee claims in Australia which, having the Senate was prevented from making a already had their refugee status confirmed in decision to refer to a committee. either Nauru or Manus Island, is not desir- able, or there could be a fourth category of The view of the opposition is that the gov- those who have had refugee status not ernment has indicated that this is the one bill granted. They may have to be repatriated to which it regards as urgent for this session. It the country they came from and you do not also indicated, I think, that it would like the want to start the whole process again in unfair dismissal industrial relation bills and Australia. the security bills put through, but, after dis- cussion, it decided to allow them to come We will debate the merits of it, but it is back in the following session so that they wider than just the two categories that Sena- could be explored through the legislative tor Bartlett highlighted in terms of its effect. process. Those two packages of bills are far Therein may lie some of the urgency to have more complex than this particular migration these matters settled before we resume on 14 bill. Senator Bartlett is probably right when May. It has to be conceded that it would be he makes the point that he would like to see much better to have a legislation committee the two substantive amendments that have inquiry on this. It would have been better to been promised; so would I. On this occasion, have it as originally proposed—it was not the migration legislation will not be so com- perfect—but that was the choice you made. plex that we will not be able to deal with it in You thought by knocking off the committee the committee stage without having to go to last week that this legislation could not be the legislation committee for advice. It considered at all this week. Your bluff has would have been preferable for the Demo- been called on that particular one and, there- crats to allow it to go to that committee for at fore, it will not go to a legislation committee. least a day’s hearing. Forget what they say I do not think that is the end of the world. here today: they deliberately held it up last I think legislative committees have a pretty week so that it would not be considered this patchy record overall. In any event, we are week. That is the truth of the matter and it is well away from the original reason for set- legitimate, but do not claim otherwise. That ting up legislation committees. They were is exactly what they have done. originally meant to virtually substitute for the Senator Bartlett is probably right when he committee stage in this chamber. Now they says the only two reasons for this bill to go are an excuse to invite everyone along. And through are ill-health and the problems that it is a good excuse, provided we do not fob occasions through medivaccing and having people off and say, ‘Come and put your to give evidence—but there are two much views to the committee,’ rather than us trying 1110 SENATE Wednesday, 20 March 2002 to use some intellectual rigour to assess those anyway. It was always going to be a dead views. I think you would concede that there duck because a deliberate decision had been is a danger in that as well. I personally think made not to allow this matter to be finalised that there is enough urgency in this piece of before the guillotine came into effect at 4 legislation for it to be considered this week. I o’clock on Thursday afternoon. They are the think Senator Abetz’s resolution therefore facts of the matter. has merit. The opposition, as I said this morning, al- Senator FAULKNER (New South ways tries to be consistent on these issues. Wales—Leader of the Opposition in the Sen- Therefore, if any senator wants to see a bill ate) (3.53 p.m.)—I made a contribution on referred to a legislation committee via the this matter at 10.22 a.m. today, and I com- Selection of Bills Committee process, that mended it— ought to occur. We have been very consistent Senator Abetz—And 30 seconds? in trying to ensure that that process is ac- cepted around the chamber—often to our Senator FAULKNER—Yes, it was actu- own disadvantage, when we are ready to de- ally 30 seconds, according to this turn I have bate a bill in the chamber itself. We have of the Hansard pink. I commended this to the been very consistent. This was a deliberate Senate when we were dealing with the issue attempt to stymie a committee hearing on the of an exemption of this particular bill from bill. I identified it in this chamber in a speech the cut-off. There is no point in the Senate at the time. No-one demurred; everyone un- beating around the bush: the reason this bill derstood what was happening. is not going to a legislation committee is that the Australian Democrats, particularly Senator Abetz—Disagreed. Senator Bartlett, decided on a device to block Senator FAULKNER—You did not dis- it. As Senator Ray properly said to the Sen- agree; the government actually agreed on ate, that is their right. It would not be the first this. time that senators in this chamber have de- Senator Abetz—No, I was explaining cided to use the opportunities that the stand- what you meant. ing orders provide to get a certain result. But it was an intended result. The intention of the Senator FAULKNER—Every now and Australian Democrats was to block this bill again the government gets something right, going to the Legal and Constitutional Legis- and agreeing with me on that occasion was lation Committee. one of those that you can chalk up on the record. The situation is this: it was identified How it was done was very simple. The at the time, we all knew what was happening Selection of Bills Committee report was in- and, frankly, suggestions to the contrary—if troduced late on Thursday last week. It was any suggestions are being made—are false. introduced late and therefore required leave The truth is that a parliamentary tactic was of the Senate to be introduced at a time that used, the procedures of the place were used, was not the normal time for introduction on the standing orders of the Senate were used, the Senate’s routine of business. Therefore, to stop a committee hearing. That is fair the Chairman of the Selection of Bills Com- enough. You are entitled to do that. The mittee was required to seek leave. Leave was Australian Democrats can do that. The oppo- not granted to introduce the Selection of sition itself has at times used procedural de- Bills Committee report which contained a vices—once or twice that has happened— recommendation for reference of the Migra- when we have thought that it was in the best tion Legislation Amendment (Transitional interests of the views we were progressing in Movement) Bill 2002 to the legislation this chamber. On this occasion it was the committee. As leave was not granted, the Australian Democrats. But the problem is Manager of Government Business in the that you cannot have your cake and eat it too. Senate moved to suspend standing orders. We now do not have an opportunity to send That motion was talked out. It did not matter that bill to a committee, and that is unfortu- whether it was talked out or not, the substan- nate. The decision of our caucus—the federal tive motion would have been talked out Wednesday, 20 March 2002 SENATE 1111 parliamentary Labor Party—was that we General business notice of motion no. 14 wanted it to go to a committee for as thor- standing in the name of Senator Harris for ough an examination as possible in a con- today, relating to the establishment of a strained time period, which is before the end select committee on the Lindeberg griev- of these sittings. And that gets to the next ance, postponed till 16 May 2002. issue: should the bill be dealt with this ses- General business notice of motion no. 43 sion? (Time expired) standing in the name of Senator Bartlett for today, proposing an order for the produc- Question agreed to. tion of documents relating to the proposed Original question, as amended, agreed to. Paradise Dam, postponed till 21 March 2002. BUSINESS General business notice of motion no. 10 Rearrangement standing in the name of Senator Murphy Senator ABETZ (Tasmania—Special for today, relating to the establishment of a Minister of State) (3.58 p.m.)—by leave—I select committee on forestry and and plan- move: tation matters, postponed till 21 March 2002. That consideration of the business before the Senate today be interrupted at approximately 5 COMMITTEES pm, but not so as to interrupt a senator speaking, Economics References Committee to enable Senator Barnett to make his first speech Reference without any question before the chair. Question agreed to. Senator MACKAY (Tasmania) (4.00 p.m.)—as amended, by leave—On behalf of Senator CALVERT (Tasmania) (3.59 Senator Collins, I move the motion as p.m.)—by leave—On behalf of Senator amended: Brandis, I move: That the following matter be referred to the That the presentation of the report of the Eco- Economics References Committee for inquiry nomics Legislation Committee on the provisions and report by 27 August 2002: of the Taxation Laws Amendment (Superannua- (a) the impact of public liability insurance tion) Bill (No. 1) 2002 and a related bill be post- for small business and community and poned to a later hour of the day. sporting organisations; and Question agreed to. (b) the impact of professional indemnity NOTICES insurance, including Directors and Postponement Officers Insurance, for small business; Items of business were postponed as fol- with particular reference to: lows: (c) the cost of such insurance; Business of the Senate notice of motion no. (d) reasons for the increase in premiums for 2 standing in the name of the Leader of the such insurance; and Australian Democrats (Senator Stott (e) schemes, arrangements or reforms that Despoja) for today, relating to the refer- can reduce the cost of such insurance ence of matters to the Standing Committee and/or better calculate and pool risk. of Privileges, postponed till 21 March Question agreed to. 2002. SENATE: DRESS CODE General business notice of motion no. 24 standing in the name of Senator Bourne for Senator BROWN (Tasmania) (4.01 today, relating to measures to resolve ten- p.m.)—I move: sions between India and Pakistan, post- That the Senate does not require media poned till 21 March 2002. representatives in the Senate gallery, or senators’ General business notice of motion no. 16 advisers, to wear coats. standing in the name of Senator Brown for Question agreed to. today, relating to the introduction of the Parliamentary Commission of Inquiry into Forestry Tasmania Bill 2002, postponed till 15 May 2002. 1112 SENATE Wednesday, 20 March 2002

HUMAN RIGHTS: CHINA MRI machine at Princess Margaret Senator BROWN (Tasmania) (4.01 Hospital, and p.m.)—as amended, by leave—I move the (v) that the Commonwealth has provided motion as amended: four Medicare licences for MRI machines to private health providers That the Senate— in Western Australia and only two to (a) expresses its concern about reports that public hospitals, none of which two Australians, amongst a party of ten provide specialist paediatric services; members of Falun Gong arrested by and police in Beijing on 8 March 2002, were (b) calls on the Minister to alleviate the beaten by the police; and chronic need for the provision of an MRI (b) calls on the Australian Government to machine at Princess Margaret Hospital obtain an explanation from China. by immediately providing a Medicare Question agreed to. licence for such an MRI machine. COMMITTEES Question agreed to. Privileges Committee HEALTH: NUCLEAR TESTING Reference Senator BARTLETT (Queensland) (4.03 p.m.)—On behalf of Senator Allison, I Senator ROBERT RAY (Victoria) (4.02 move: p.m.)—I move: That there be laid on the table by the Minister That the following matter be referred to the for Defence (Senator Hill), no later than Committee of Privileges: immediately after motions to take note of answers The desirability and efficacy of engaging on 20 March 2002, the following documents: counsel to represent the Senate in court That the Senate— and other tribunal proceedings on ques- tions involving parliamentary privilege af- (a) expresses its concern about reports that fecting the Senate or senators. two Australians, amongst a party of ten members of Falun Gong arrested by Question agreed to. police in Beijing on 8 March 2002, were HEALTH: MRI MACHINE, PRINCESS beaten by the police; and MARGARET HOSPITAL (b) calls on the Australian Government to Senator COOK (Western Australia) (4.03 obtain an explanation from China. p.m.)—I move: R225.040 Health Physics—Tolerances That the Senate— Ingested and Inhaled Materials (a) notes: R225.041 Health Physics—External Ra- diations (i) that Princess Margaret Hospital is the only major children’s hospital in R216.010 Chemical Warfare Testing Australia without a magnetic Sites—Report by Joint Aus/US resonance imaging (MRI) machine, Survey Team (ii) the unsatisfactory situation in which R217.025 Effect on Personnel of Atomic 200 Western Australian children are Testing at Maralinga awaiting MRI appointments at R100.018 DCMO Brisbane and Amber- another public hospital without ley specialist services for children, R208.010 Certificates for wounds and (iii) that the Western Australian hurts Government has agreed to fund the R065.015 Likelihood of Clandestine In- purchase of an MRI machine at a cost troduction of Nuclear Weapons of $2 million, provided the into Australia Commonwealth provides a Medicare R065.046 UK Testing at Woomera of licence for it, Missiles with Nuclear War- (iv) the refusal of the Minister for Health heads and Ageing (Senator Patterson) to R210.004 Radiation Dose Records provide a Medicare licence for an Wednesday, 20 March 2002 SENATE 1113

R010.002 Comparison of UK Personnel tice of motion No. 35, standing in my name Listings Against Exposure Re- for today and relating to the jurisdiction for cords in Australia settlement of property issues for de facto R228.022 Safety Procedures and Health couples, be taken as a formal motion. Effects— Investigations The DEPUTY PRESIDENT—Is there R009.011 Weapons Atomic Test Program any objection to this motion being taken as Investigation of Safety and formal? Health Effect. Senator Harradine—Yes. Question agreed to. The DEPUTY PRESIDENT—There is HEALTH: MENTAL ILLNESS an objection. Senator BARTLETT (Queensland) (4.04 Suspension of Standing Orders p.m.)—On behalf of Senator Allison, I move: Senator GREIG (Western Australia) (4.05 p.m.)—Pursuant to contingent notice, That the Senate— and at the request of the Leader of the Aus- (a) notes that: tralian Democrats, Senator Natasha Stott (i) Sane Australia, a national charity Despoja, I move: helping people affected by mental That so much of the standing orders be sus- illness, said in the week beginning 17 pended as would prevent Senator Stott Despoja March 2002 that despite two national moving a motion relating to the conduct of the mental health plans and a 30 per cent business of this Senate, namely a motion to give increase in funding in the 1990s, there precedence to general business notice of motion has been very little real progress in No. 35. the care of people with mental illness, (ii) many Australians are not receiving This motion is urgent and should be dis- effective treatment from public cussed today principally for two reasons. mental health systems, often leading Firstly, there has been a really horrible wave to tragic situations, of homophobia across the country in the last (iii) there is no coherent Australia-wide few days and I suspect that is happening system of rehabilitation for people again. What this motion deals with, in part, is with a psychiatric disability, the recognition of same sex couples as de (iv) there are few specialist programs to facto couples under federal law, or at least help those with a mental illness and for the purposes of Family Court property coexisting alcohol and drug problems, disputes and their settlement. The reason that (v) family and other carers are not we ought to support this motion today is that routinely provided with education and it would send the right message; it would support, send a positive message— (vi) Australia still has eight different Senator Mackay—Madam Deputy Presi- Mental Health Acts not in harmony dent, I raise a point of a order. I seek clarifi- with each other, and cation from Senator Greig as to whether he (vii) Australia spends only 5 per cent of its intends to move an amendment in relation to health budget on psychiatric services the motion on the Notice Paper. while other Organisation for Senator GREIG—Senator Mackay is re- Economic Co-operation and Development countries allocate closer ferring to Labor’s proposal that the motion to 10 per cent; and ought to have been amended. That has been done in accordance with the opposition’s (b) urges the Federal Government to take a national approach to seriously address wishes. I was saying that there are two key these issues. reasons why this motion should proceed to- day: firstly, I think it is important that the Question agreed to. federal government acknowledge the exis- FAMILY COURT: PROPERTY ISSUES tence of same sex couples as a way of send- Senator GREIG (Western Australia) ing a positive message in light of the wave of (4.04 p.m.)—I ask that general business no- homophobia that has swept the country in the 1114 SENATE Wednesday, 20 March 2002 last few days; and, secondly, it is important accords with the view of the state Attorneys- because the Attorney-General announced General in the matter and would have the recently that he was considering legislation legislation come from the government. One that would allow a transfer of the jurisdic- would presume, if the opposition is to sup- tions in terms of the way in which de facto port this, and I think it will, that that would couples were dealt with under family law or allow for the end of discrimination on prop- within family courts between state jurisdic- erty issues for de facto couples and see that tions and the Commonwealth. There was they are settled in the Family Court. recently a meeting of attorneys-general, in- The motion asks the government to ensure cluding the federal Attorney-General, where that such legislation would include the need this issue was discussed. for avoiding limitation of existing rights un- As it happens, legislation is being dis- der state legislation for same sex couples and cussed and debated at this very point in time also ensure that an equitable legislative re- in the Western Australian jurisdiction, in my gime is proposed which eliminates any dis- home state, which would grant same sex advantage or discrimination against all de couples access to the Family Court under facto couples, whether of the same or oppo- state jurisdiction. In those jurisdictions where site sex. This legislation is not cutting edge. the recognition of same sex couples is It follows legislation that has been passed by granted under the Family Court system—and several states in Australia but many countries that currently includes New South Wales and and jurisdictions overseas. I think that Sena- Victoria, I understand, and very soon my tor Greig is absolutely right that it is a very home state of Western Australia—it is only timely opportunity for the government to fair on the parliaments in those jurisdictions respond to recent events in a positive fash- to know what exactly it is that is going to ion. The motion is an important one. It will happen at the Commonwealth level. I think it be a breakthrough for the Senate if it is is important that this chamber send a mes- passed and it will be an advance for this sage to the government that it wants a system country. It will open up an opportunity for that does not discriminate. the Howard government to catch up with the My belief is that, firstly, we need to send a mood of the nation. positive message of nondiscrimination to the Senator HARRADINE (Tasmania) (4.11 gay and lesbian community and, secondly, p.m.)—Here we are: because I called this not that we need to send a message to the gov- formal, I am accused by Senator Greig of ernment so that it recognises the calls from homophobia. I challenge him or anyone in all chief ministers and premiers in all the this chamber or outside of this chamber to territories and state jurisdictions that this say when I ever supported unjust discrimina- reform is positive and necessary and some- tion against persons because of their homo- thing the government should do. So we sexuality. I challenge them to say when I should take the opportunity today for the did—in all my past life in the trade union Senate to send that message to the Attorney movement or in the political arena. It is so on the basis that legislation is forthcoming to unfair for Senator Greig to suggest that this this chamber, once it passes the House of is a matter of homophobia. I am an Inde- Representatives, to deal with that. So for pendent senator here representing the state of those two reasons I argue that the matter is Tasmania. I am entitled to know precisely urgent and must be considered today. what is behind the motions that are put for- Senator BROWN (Tasmania) (4.08 ward. I am expected to agree to a situation p.m.)—I support Senator Greig’s motion and where there has been no debate. I think this I congratulate him and the Democrats on is a matter of such importance that there bringing this motion forward. The motion, if should be debate. That is what I am talking passed, would be an injunction to the gov- about: there should be debate. ernment from the Senate to catch up with The notice of motion talks about calling public sentiment on the matter of discrimi- on the government, in bringing forward leg- nation against same sex couples. It simply islation on this matter, to ensure that such Wednesday, 20 March 2002 SENATE 1115 federal legislation will in no way limit ex- suspend standing orders and have an unlim- isting rights under state legislation. How ited debate, or you had to knock them many in this chamber can honestly say that through without debate—to me, that is the they know what all the state legislation does? problem. Time and time again, parties and What are you suggesting we are signing up individuals in this chamber are getting to here? How many in this chamber know squeezed on these particular matters of prin- not only what existing state legislation but ciple. what future state legislation we are supposed I read the motion and I do not have a lot of to sign up to? As we know, under the Con- difficulty with it per se, but I have difficulty stitution, legislation of the federal parliament with suspending standing orders and then overrules the states. The interesting thing is having to have a one-, two-, three- or four- that the motion calls on the government to hour debate at this stage of the session. I am ensure that: afraid that is not on. One thing I will not ac- … an equitable legislative regime is proposed cuse Senator Greig of is trying to stall the which eliminates any disadvantage or discrimina- proceedings. I know he is not trying to do tion against all de facto couples whether they are that—Senator Bartlett would love him to do of the same or opposite sex. it. He is not trying to do that and I accept There is the nub of it. This is an attempt to that. I accept the sincerity with which Sena- get backdoor recognition of same sex cou- tor Greig is putting this forward as a princi- ples as having marriage status relationship ple, but it is very difficult for this Senate to similar to a de facto couple, which is recog- adopt these resolutions constantly without nised as having a marriage like status. This is any debate at all. On that point, Senator Har- trying to get the Senate to sign up to that. I radine is absolutely right. do not think that ought to be done without This also raises the fact that the govern- great consideration. ment has botched its program so much that I disagree with Senator Brown: I do not people like Senator Greig cannot be given think the public believes that that ought to be general business time. We have given up the situation. The family law legislation is more general business time overall on this perfectly clear—it talks about the need to side of the chamber than has ever been given preserve and protect the institution of mar- up before—Thursday after Thursday, we are riage as the ‘union of a man and a woman to turning over to government business, later the exclusion of all others voluntarily entered night sittings et cetera. You have to have into for life’. That is what the family law some sympathy with Senator Greig because legislation says and we are now being asked he is not getting an opportunity to have a full by way of this motion to sign up to some- debate on this particular matter. I have to say thing that is quite contrary to the Family Law that today is not the day. You can say, ‘You Act and what is in the Marriage Act. would argue, Senator Ray, that the day is Whether you agree with the motion or not, I never there.’ But no, I will not argue that. believe it is a matter that ought to be subject Senator Brown—When is the day? to proper debate—not snuck through by calling for a notice of motion to be taken as Senator ROBERT RAY—Exactly—the formal. day will come, I think, Senator Brown. To put a motion like this through, a major prin- Senator ROBERT RAY (Victoria) (4.15 ciple, without debate, was not on, so declar- p.m.)—Some time ago I raised whether we ing it not formal was probably the appropri- should abolish formal notices of motion. I ate course of action. There is only one ques- raised that with the Procedure Committee tion before us: are we going to spend the rest because I was sick of getting squeezed on of the day and half of tomorrow, or whatever, resolutions of principle. Quite often those debating this particular matter or not? The resolutions contained 90 per cent of things I answer is that we were never signed up for it. could agree with and 10 per cent of things I If we were forced to be in a position to have could not. Either you declared them not for- to vote on this as a formal motion, we can mal and they would disappear or you had to 1116 SENATE Wednesday, 20 March 2002 indicate now that we would have supported Ayes………… 7 it. Noes………… 42 We are not about to vote for a suspension Majority……… 35 of standing orders and an endless debate at a time when we have a range of serious legis- AYES lation which can hopefully be finished off by Allison, L.F. Bartlett, A.J.J. 6.30 tomorrow night. As it is, I suspect we Bourne, V.W. * Brown, B.J. will be sitting here well into Friday afternoon Greig, B. Murray, A.J.M. trying to get through what is now a limited Ridgeway, A.D. government program. It is not a wish list NOES because they have cut it right back—every- Abetz, E. Barnett, G. thing has been put aside, all the bluffing and Bishop, T.M. Bolkus, N. all that. The government now has its mini- Brandis, G.H. Buckland, G. mum demands on the table, which we do not Campbell, G. Carr, K.J. regard as unreasonable. We would like to see Colbeck, R. Collins, J.M.A. those matters resolved before we leave here Cook, P.F.S. Coonan, H.L. on either Thursday night or Friday. There- Cooney, B.C. Crane, A.W. fore, the suspension of standing orders may Crossin, P.M. Crowley, R.A. have an element of urgency but it is not war- Eggleston, A. Evans, C.V. ranted at this stage. Ferguson, A.B. Forshaw, M.G. Senator ABETZ (Tasmania—Special Harradine, B. Hogg, J.J. Minister of State) (4.19 p.m.)—The govern- Hutchins, S.P. Kemp, C.R. ment will be opposing the proposal put for- Knowles, S.C. Lightfoot, P.R. ward by Senator Greig in relation to the con- Lundy, K.A. Macdonald, J.A.L. sideration of this motion. The government Mackay, S.M. * Mason, B.J. has an agenda that has been put before this McGauran, J.J.J. McLucas, J.E. O’Brien, K.W.K. Patterson, K.C. chamber. Urgent legislation is required to be Payne, M.A. Ray, R.F. passed before we resume for the budget ses- Schacht, C.C. Scullion, N.G. sion. As Senator Ray indicated, we have the Tchen, T. Troeth, J.M. rest of today and tomorrow and possibly the Watson, J.O.W. West, S.M. early hours of Friday morning—let us hope * denotes teller not. There is a tight schedule to be worked Question negatived. through and this is not the time or the place for a debate on this matter, which has a cer- COMMITTEES tain gravity about it, as Senator Harradine Community Affairs References Committee pointed out. Indeed, I would doubt that any Meeting of us sitting around the chamber at the mo- Senator CROWLEY (South Australia) ment could answer the question that Senator (4.28 p.m.)—I move: Harradine posed. That aside, the government wants to get on with the agenda. I invite the That the Community Affairs References Senate to reject the motion and allow us to Committee be authorised to hold a public meeting during the sitting of the Senate on Thursday, 21 deal with the business that is before the Sen- March 2002, from 3.30 p.m., to take evidence for ate so that we can hopefully catch our flights the committee’s inquiry into nursing. on Friday morning back to our electorates. Question agreed to. Question put: Employment, Workplace Relations and That the motion (Senator Greig’s) be agreed Education References Committee to. Reference The Senate divided. [4.24 p.m.] Senator GEORGE CAMPBELL (New (The Deputy President—Senator S.M. South Wales) (4.28 p.m.)—I move: West) That the following matter be referred to the Employment, Workplace Relations and Education Wednesday, 20 March 2002 SENATE 1117

References Committee for inquiry and report by lating to the temporary works associated with 19 November 2002: the National Capital ‘Canberra 400’ V8 Su- Small business employment, with par- percar race carnival. I seek leave to give a ticular reference to: notice of motion in relation to the proposal. (a) the effect of government regulation on Leave granted. employment in small business, specifically including the areas of Senator ABETZ—I give notice that, on workplace relations, taxation, super- the next day of sitting, I shall move: annuation, occupational health and That, in accordance with section 5 of the Par- safety, local government, planning and liament Act 1974, the Senate approves the pro- tenancy laws; posal by the National Capital Authority and Can- (b) the special needs and circumstances of berra Tourism and Events Corporation for tempo- small businesses, and the key factors that rary works within the Parliamentary Zone, associ- have an effect on the capacity of small ated with the National Capital ‘Canberra 400’ V8 businesses to employ more people; Supercar race carnival. (c) the extent to which the complexity and DELEGATION REPORTS duplication of regulation by Common- Parliamentary Delegation to the 47th wealth, state and territory governments Commonwealth Parliamentary inhibits growth or performance in the Conference small business sector; and Senator LIGHTFOOT (Western Austra- (d) measures that would enhance the capacity of small businesses to employ lia) (4.30 p.m.)—by leave—I present the re- more people. port of the Australian parliamentary delega- tion to the 47th Commonwealth Parliamen- Question agreed to. tary Conference, which took place in Aus- Scrutiny of Bills Committee tralia from 2 to 14 September 2001. Report COMMITTEES Senator MACKAY (Tasmania) (4.29 Membership p.m.)—On behalf of Senator Cooney, I pres- ent the third report of 2002 of the Senate The ACTING DEPUTY PRESIDENT Standing Committee for the Scrutiny of (Senator Hogg)—Madam President has re- Bills. I also lay on the table Scrutiny of Bills ceived letters from party leaders seeking Alert Digest No. 3 of 2002, dated 20 March variations to the membership of committees. 2002. Senator ABETZ (Tasmania—Special Ordered that the report be printed. Minister of State) (4.31 p.m.)—by leave—I move: DELEGATION REPORTS That senators be discharged from and ap- Official Visits to the Assembly of the pointed to committees as follows: Republic, Portugal, and the Senate, Spain A Certain Maritime Incident—Select The ACTING DEPUTY PRESIDENT Committee— (Senator Hogg) (4.29 p.m.)—I present the Appointed: Senator Ferguson report of the President’s official visits to the Discharged: Senator Heffernan Assembly of the Republic, Portugal, and the Community Affairs References Commit- Senate, Spain, which took place in January tee— 2002. Substitute member: Senator West to re- PARLIAMENTARY ZONE place Senator Gibbs from 21 March to Proposal for Works 28 March 2002. Senator ABETZ (Tasmania—Special Question agreed to. Minister of State) (4.30 p.m.)—In accordance HEALTH: NUCLEAR TESTING with the provisions of the Parliament Act Return to Order 1974, I present a proposal for approval of works within the Parliamentary Zone, to- Senator ABETZ (Tasmania—Special gether with supporting documentation, re- Minister of State) (4.32 p.m.)—I seek leave 1118 SENATE Wednesday, 20 March 2002 to read a brief interim response to the Sen- we are not going to be able to consider it in a ate’s return to order, motion No. 31 moved committee. by Senator Bartlett on behalf of Senator Alli- In withdrawing this notice of motion, I do son. need to correct the statement made by Sena- Leave granted. tor Faulkner. He said that it was the intention Senator ABETZ—I thank the Senate. I of the Democrats to block this bill going to a have advice from the Department of Defence committee. The fact that I have this notice of in relation to the documents sought by the motion on the Notice Paper pretty clearly Senate today. National Archives records in- shows that it is not the Democrats’ intention dicate that some of the documents have re- to block the bill going to a committee. It was strictions on access that may prevent tabling. our intention to try to send it to a committee Apparently, some documents were provided with a proper hearing, which it would not in confidence by foreign governments, and have got under the rushed approach that was disclosure would require consultation and being tried by the government last week. I consent. I also am advised that Defence pro- think it is important to put that on the record. vided the documents to the Royal Commis- Hopefully, we can move on to the substan- sion into Atomic Testing in Australia in tive issue when the bill comes on for debate 1986. Royal commission documents remain later. The Democrats wanted it to go to a under the control of the Department of the committee. We wanted it to get a proper Prime Minister and Cabinet and are no hearing, not a rush through before anybody longer controlled by the department of ori- even knew the bill existed. That is why this gin. I am advised that Prime Minister and notice of motion was put forward. But, given Cabinet is now the approving authority for the matter has been determined already, I publication of these documents. I have re- will withdraw it. quested that Defence liaise with Prime Min- The ACTING DEPUTY PRESIDENT ister and Cabinet to advise me which docu- (Senator Hogg)—The notice of motion is ments may be tabled. Unfortunately, this withdrawn. process will delay a final response to the STATES GRANTS (PRIMARY AND Senate’s request. I shall advise the Senate SECONDARY EDUCATION when I have received further information. ASSISTANCE) AMENDMENT BILL NOTICES 2002 Withdrawal In Committee Senator BARTLETT (Queensland) (4.34 Consideration resumed. p.m.)—If the Senate is willing to give me The TEMPORARY CHAIRMAN leave to make a one-minute statement, I will (Senator Hogg)—The committee is consid- withdraw Business of the Senate, notice of ering the States Grants (Primary and Secon- motion No. 5. dary Education Assistance) Amendment Bill Leave granted. 2002 as amended. The question is that the Senator BARTLETT—I thank the Sen- bill as amended be agreed to. ate. Despite the inference, I think, made by Senator CARR (Victoria) (4.36 p.m.)— Senator Ray just recently, I am not trying to Senator Brown was dealing with an amend- chew up time unnecessarily to prevent debate ment. He is not here. If it is the wish of the on the Migration Legislation Amendment committee, I would like to move opposition (Transitional Movement) Bill 2002, which is amendments to schedule 1, item 1. the subject of my notice of motion. Given Senator Abetz interjecting— that the Senate has just decided to amend the Selection of Bills Committee report not to Senator CARR—My understanding is send this bill to a committee, it is fairly re- that Democrat amendments (1) to (4) have dundant to proceed with this notice of mo- been carried. tion. I would like as much time as possible in Senator Abetz—You are right, sorry. this chamber to consider the bill, given that Wednesday, 20 March 2002 SENATE 1119

The TEMPORARY CHAIRMAN—The uty Clerk advises me that that is not the case next business on the running sheet is the at this stage. Is that correct? Greens’ amendment. Senator CARR—The amendment that I Senator CARR—They are not here, so I am speaking to, which is listed here as 2442 would move the opposition amendment, on the sheet that I have before me, was dis- which is the next amendment, if that is the tributed—and I asked for it to be distrib- wish of the committee. uted—yesterday. This is not a revised The TEMPORARY CHAIRMAN—Can amendment. we deal with yours without having dealt with The TEMPORARY CHAIRMAN—It is the Greens’ amendment first? not a revised amendment. Senator CARR—Yes, they are separate Senator Abetz—We are right now, thank matters. you. Senator Abetz—If Senator Brown is not Senator CARR—If I might speak to this even in the chamber and does not want to amendment, what concerns us here is to pro- pursue the amendment, I am wondering how vide a mechanism to establish criteria for serious he is and whether we deal with it. identifying whether new schools are in Senator CARR—Senator Abetz, we have genuine need. It is not sufficient, in our a lot of work to do here. We are serious judgment, to rely on state registration proce- about processing these amendments. We be- dures to do this. As we have been able to lieve they are worthy of the consideration of highlight through a range of processes, there this chamber. Gratuitous abuse of other are at least 13 schools that we have identified senators will not facilitate that. I would urge amongst this list of 49 at the time—I under- you, in the interests of what you perceive to stand it has now grown to 58—where it be the government program, to bear in mind would appear that reliance upon state regis- just how much work there is before us. I tration has led to a situation where schools would therefore move the amendments have been registered as new schools which standing in my name listed as amendments to are arguably outside the current guidelines. schedule 1, item 1. Those schools are really branches of an ex- isting school—they are just new campuses The TEMPORARY CHAIRMAN—You and the schools have essentially just changed are moving R1 on sheet 2442 revised? Is that their names; I can go to the detail of these if correct? required—or schools that have effectively Senator CARR—That is the one. I move: extended their levels and are not in fact new (1) Schedule 1, item 1, page 4 (after line 9), schools. after subsection (4), insert: State registration bodies have responsibil- (4A) Where the Minister varies the list in ity for assuring the quality of education in all accordance with this section, the Min- schools, such as for curriculum, teaching ister must do so in accordance with qualifications, health and safety conditions such criteria for the identification of a and, in some states, discipline. They are new school as shall be prescribed. matters which go to the standards of educa- This amendment seeks to vary the list in ac- tional provision, not to the issue of criteria cordance with the section so that established for an automatic access—and I emphasise criteria for the identification of new that—to Commonwealth moneys. They are schools— in fact serving entirely differing purposes. Senator Abetz—The advisers are asking That is why it is a grave error in public pol- whether the revised amendments have been icy to rely upon a state to administer a circulated. Commonwealth program which is, in effect, The TEMPORARY CHAIRMAN— open ended and which does not take into Senator Carr, the issue is whether the revised account the requirements of the Common- amendments have been circulated. The Dep- wealth guidelines but operates on an entirely different basis. 1120 SENATE Wednesday, 20 March 2002

What we have then is the situation, for in- tions in regard to funding. That is why it is stance, of the Christian College Highton and important to establish the question of need. the Christian College Institute of Senior We should be funding schools on the basis of Education, in Highton, which is a senior real need, not on the basis of some ideologi- campus of a school which was created and cal obsession, as has been the case with this separately registered. They have the same government. registration address; 12 of the 13 directors We have a situation that we have seen in are the same for the registered company; various places around the country and that they have the same address in relation to highlights the points I have been making. their registration as a registered training or- The way this program is currently operating ganisation. We have the All Souls St Gabriel concerns me. The Labor Party believes that School at Charters Towers in Queensland, we need to assist genuine new schools to which we have discussed on previous occa- meet legitimate start-up costs. We also need sions, essentially with the same people, same to develop criteria to ensure that real needs staff, same students, same board of gover- are actually met, not to assist schools that are nors. And so it goes on. There are numerous appreciably operating in another disguise. examples of this. We need to pay particular attention to who We have the Hills Montessori School in owns the schools, to the governing bodies Sydney, which has an existing preschool that and to the actual operations of the school. has catered for three- to five-year-olds for We cannot have a situation where the guide- over 20 years. It is not a new school, but it lines seem to be so openly flouted. This de- has been registered as a new school. There partment and this government know about are several other examples that we can point these problems but they rely on the one as- to on the list where Montessori schools are sumption that if the schools are registered by extending their program. We have the ludi- the state they automatically have access to crous situation—this really concerns me— Commonwealth moneys. No wonder this where a school in Australia that receives program has been blown out so badly; no Commonwealth funding has an enrolment of wonder there have been four attempts to get one. A school with one student! That is the the estimates on the budgetary requirements; International Conservatorium of Music in no wonder we have schools that are really Sydney. How can you possibly run a school schools for profit slipping through the ad- program with a school of one? How do you ministrative net, to the point where, for in- provide the breadth of curriculum and the stance, we have the case of Reddam House facilities with a school of one? school in Sydney and Murdoch College in That is the basis on which we are now op- Perth which, it would appear to me, have not erating. We can have in this country a regis- been properly examined by departmental tered school with only one student in it. As I officials because they are relying on state have said before, it reminds me very much of government officials to do the work that the the old Sir Humphrey Appleby scene in the Commonwealth should be doing. This is a Yes, Minister series where there was a hos- Commonwealth program and it requires pital with no patients. What we have in this proper accountability mechanisms. Currently country is schools without students, getting those mechanisms are not in existence. Commonwealth funding. The TEMPORARY CHAIRMAN This is where the whole notion of choice (Senator Hogg)—Before calling other has gone off the rails—absolutely off the speakers, I want to make sure that I correct rails. We have a situation where the concept something I said earlier. We are now working of choice is easier to use as a rhetorical term from a new revised running sheet, which is than in an operational sense. Providing revised (3). The amendment that is being put choice for some actually undermines the forward by Senator Carr is amendment (1) choices of others. A country of our size and on sheet 2442—no longer revised. I under- with our financial basis, our budgetary stand that maybe there is a revised set of strength, is not able to provide infinite op- Wednesday, 20 March 2002 SENATE 1121 amendments but they are not forthcoming at lectual disability or learning difficulty. It this stage. We are operating from sheet 2442. would ensure that we do not have a process Senator Carr—That is not revised. That whereby if there are special requirements in has been distributed. education to help children who are disad- vantaged in any way they are rejected from The TEMPORARY CHAIRMAN— the private system and simply put across to That has been distributed and I want to make the public system because they are an ex- sure that those who are participating in the pense. debate are clearly aware of that fact. The question is that the amendment moved by There is a great deal of anecdotal evidence Senator Carr be agreed to. to show that this is the case. For example, an unruly child may be hyperactive or difficult Question agreed to. in some other way. In the classroom that can Senator BROWN (Tasmania) (4.47 lead to distractions for fellow pupils and to a p.m.)—I move Greens amendment R3 on great deal of extra attention and care from sheet 2470 revised: the teacher or teachers involved. But it is (R3) Schedule 1, page 3 (after line 5), before item also a difficulty for the child involved. Un- 1, insert: less they get special attention, this can very 1A After subsection 18(5) easily lead to them being denied the special Insert: assistance required to help them engage in other educational or work opportunities fur- (6) The Minister must refuse to authorise, or may delay, a payment to a State un- ther down the line. der this Act for a non-government If they do require special attention, that school if: does require extra resources. We all ought to (a) the school has an enrolment policy know of anecdotes where children rejected which would exclude a child on the from the private school system have simply grounds of: gone to the public school system because no- (i) academic ability; one else would take them. ‘Cherry picking’, (ii) behavioural difficulty or special as it is called, is inherent in this process. I do need including physical or intel- not like that term because I think that no kid lectual disability or learning dif- is a cherry above any other child. But the ficulty; or meaning here is that there is selectivity by (b) the school has a discipline policy some private schools, whereby they reject which would exclude or expel a the extra time, care and monetary needs that child on the grounds of: these children require. For example, it is easy (i) academic ability; to expel such children from a school and (ii) behavioural difficulty or special leave it to their parents to find a place for need including physical or intel- them in the public school system. That lectual disability or learning dif- should not happen. The Greens amendment ficulty. aims to make sure that it does not happen, to If the school changes its enrolment or make sure that neither the children nor the discipline policies within five years public school system are disadvantaged by of receiving an establishment grant private schools rejecting, quite unfairly, such and such change contravenes para- students. It is a pretty simple and fair matter graph (a) or (b), any payment is sub- and I recommend this amendment to the ject to section 27. committee. I remind the committee that this amendment Senator ALLISON (Victoria) (4.51 ensures that to qualify for establishment p.m.)—I indicate Australian Democrat sup- grants the private school involved has to port for the amendment. It is a good one, have a policy that would ensure it does not although I do not think the rejection of stu- restrict or exclude children on the basis of dents difficult to teach—if we might put their academic ability, behavioural difficulty them in that category—is across the board in or special needs, including physical or intel- non-government schools. If we were to typ- 1122 SENATE Wednesday, 20 March 2002 ify the sorts of schools that do, it is probably I remember, when I went through the state those that are at the wealthier end of the government school system, at Taroona High spectrum. This is an amendment and a con- School, that people were expelled from state dition that many schools will not have any government schools as well. So let us not difficulty with, but I would argue that none have this pretence that people are only ex- should. The Democrats are supportive. pelled from schools in the non-government Senator CARR (Victoria) (4.52 p.m.)— sector. They are expelled from schools in The opposition acknowledges the strength of both sectors because, at the end of the day, the sentiments behind this amendment. We those that are in authority determine that that have argued these views ourselves for a con- is the best course of action for the wellbeing siderable length of time. In fact, the value of of all the other students. the amendment goes to the main act rather The amendment also ignores—and this is than to this states grants bill—that is, it something that those opposed to our philo- should apply to all schools, in my judgment, sophical approach seem to do all the time— not just to new schools. Therefore, we sug- the views of parents. Many school gest it would be more appropriate that these councils—even, as I understand it, in state particular measures be undertaken in another government schools—determine particular form and we are not supporting them in this discipline policies for those schools. That particular form. would be the same in state government Senator BROWN (Tasmania) (4.52 schools and non-government schools, so it is p.m.)—That is a default, and we see that so far too prescriptive and in fact would set a often from the opposition. When the oppor- criterion which is not even applicable to state tunity comes up to support an excellent government schools. The government will amendment which the opposition says it oppose this amendment. agrees to, it says, ‘But not now.’ That is, Senator BROWN (Tasmania) (4.55 frankly, not good enough. This amendment is p.m.)—Earlier today I asked Senator Abetz, inherently a commonsense one; it makes on behalf of the government, to supply the good sense. The opposition supports it but committee with the figures on this matter. He says, ‘Some other time.’ That is not satis- has had all day to do so. I notice that he has factory. I ask Senator Carr to think about this not, and I have no doubt that he will not, be- matter again. This amendment should be cause there is an inherent discriminatory po- supported, and the time for it to be supported tential and reality involved in this by some is now. Certainly, I agree with him: it should schools in the private sector. Where the pri- extend right across the board to the alloca- vate sector is going to get the largesse of tion of moneys to the private school system. taxpayers’ money it ought to measure up to But let us set that principle in place now and the public sector. The public sector does have then extend it when the opportunity comes. a range—it is one that is there with govern- Let us not block it now and then consider it ment input, it is one that serves the public when a further opportunity comes. That is and it is one that ultimately does absorb the not good enough. most difficult youngsters. But that is not the Senator ABETZ (Tasmania—Special case with the private sector, and this is an Minister of State) (4.53 p.m.)—It seems that attempt to bring fairness across the system. what is sought by the amendment is to es- Every senator will know that that is required. tablish one rule for the non-government sec- Why should we not, as legislators, when tor but allow for other rules for the govern- giving taxpayers’ money to the private sec- ment sector, because there are in fact gov- tor, expect that the private sector will act ernment schools that have selective enrol- with full responsibility and take its share of ments on the basis of academic ability. So if responsibility for helping children, no matter you allow state government schools to do it, what their gifts, attributes or difficulties are? why on earth would you not allow non- That is what this amendment is about. government schools to do it? I appeal to the opposition to look at it again and take this opportunity, in the name Wednesday, 20 March 2002 SENATE 1123 of fairness, to adopt this Australian Greens’ aware of my earnest and sustained desire to amendment to ensure that the private school be a participant in the councils of national system does take fair responsibility in pro- decision making and specifically the federal viding special education requirements, spe- parliament. I am a believer in the uniquely cial care and the added attention that some human capacity for faith, imagination and children need in the school systems. dreams, and today’s first speech is the fulfil- Progress reported. ment of a dream, a lifelong dream conceived in my mind as a child. My father died of a FIRST SPEECH degenerative disease on 25 May 1985. Al- The PRESIDENT—Before I call Senator though none of us can claim objectivity Barnett, I remind honourable senators that about our fathers, mine should take much of this is his first speech. I therefore ask that the the credit for the inspiration and values in- usual courtesies be extended to him. stilled in me, for providing the light that Senator BARNETT (Tasmania) (4.58 guided my steps to this place. He was a man p.m.)—What an honour and a privilege it is of enterprise who saw solutions rather than to stand in the Senate chamber as a repre- problems. He pioneered the export of live sentative of the Australian people and as an sheep from Tasmania. He did what people advocate of the great state of Tasmania. I am said could not be done. In one sense I have profoundly grateful and filled with anticipa- had a privileged upbringing—but these same tion at this opportunity to strive in my role as virtues are available to all who care to seek a senator for a better quality of life for Tas- them out. mania and my country. This is indeed a rare As the proud owner of a desk belonging to opportunity to walk with my fellow Austra- one of colonial Tasmania’s early premiers, lians towards the fulfilment of our potential Sir Richard Dry, I have often thought of the and the realisation of our dreams. decisions made for good government in past I pay tribute to my predecessor, former years, sitting and contemplating at that desk Senator the Hon. Brian Gibson, for his eight what is required of those in politics. To those years of service in this place, and his special Australians I hope to help in my Senate ca- expertise and contribution on behalf of the reer I would say from the outset that dreams business community. The honour bestowed don’t work unless we do. They require de- on me by the rank and file members of the termination and perseverance. I have had my Liberal Party in Tasmania for the opportunity knock-backs, my knockdowns, but I have to stand in this place is appreciated, and I never been knocked out and I know in my look forward to crystallising in the hearts and heart that with the support of family and minds of the Tasmanian public the benefits friends and by the grace of God we can of a returned coalition government at the achieve our dreams. next election and, in doing so, to ensuring I was raised as a fifth-generation Tasma- not only the return of a full complement of nian on a beautiful farm at Hagley, a rural Tasmanian Liberal senators but the winning and regional part of northern Tasmania, be- back of House of Representatives seats. fore studying at the University of Tasmania I thank my Senate colleagues, members of in Hobart and then practising law in Mel- the House of Representatives and others for bourne. My dream of working in the USA their kind welcome following my swearing- was achieved in the mid-1980s when I was in last Monday, 11 March. One of the great- an advocate for Australian rural and trading est prizes of life is the chance to work hard at businesses in a Washington DC law firm. In work worth doing and I look forward to, in 1988 at the age of 25 years I became the collaboration with my parliamentary col- youngest senior adviser ever to work for an leagues, claiming this prize. Australian premier. Electoral defeat some 18 I wish to acknowledge my family and months later demonstrated the benefits of close friends in the gallery, some who have government and the disempowerment of op- travelled far to be here in this chamber today. position. The defeat, however, was the cata- It means a great deal. Thank you. They are lyst for my entry into the small business 1124 SENATE Wednesday, 20 March 2002 arena where I established and then managed that is vitally important to us in the political for 12½ years my government affairs and arena as well as to all Australians. public relations business prior to my entry to I am proud to be a member of a govern- the Senate. ment committed to encouraging a vibrant Based on this experience I can say une- business sector. The needs of small business quivocally that people are the most important should dominate the thinking and activity of asset of any business. Building and growing government. Members of parliament at all relationships with staff, clients and others is levels should not be dominated by the cosy vital and rewarding. Recruiting good people nexus of big government, big business, big and keeping them is a lesson that I have unions. That is a triumvirate well able to take learned during this time. Small business can care of itself. We should remould the bu- adapt to and take advantage of change more reaucracy into a role of small business aux- quickly than its competitors. The new world iliary rather than small business adversary. of IT has enhanced opportunities for small The Public Service is there to serve the pub- business. If all levels of government can help lic, not to serve itself. The Public Service is to maintain low interest rates and low taxes, there to achieve results for the wider com- cut back red tape, free up the industrial rela- munity, not to achieve a process as an end in tions system, ensure a fair trading environ- itself. My vision of Australia is a land of ment and remove rather than impose obsta- boundless opportunity underpinned by an cles, then small business will prosper and do entrepreneurial, pioneering spirit, a can-do well. Small business is already the nation’s attitude—the envy of the world. Like home pre-eminent jobs generator, providing three ownership and share ownership, I envisage out of every five new jobs. It provides the an Australia with levels of small business vital infrastructure and cash flow especially ownership amongst the highest in the world. needed in regional communities. In Tasmania The tragedy of 11 September 2001 has we have an estimated 23,000 small busi- caused all of us to reflect that this could have nesses employing 36 per cent of all employ- happened in Australia. It could have hap- ees. Tasmania has more than 50 per cent of pened to you or to me. Life is not to be taken the private sector work force and this is the for granted. Australia’s response, led by our highest percentage of any state. Tasmania Prime Minister, demonstrated resolve and truly is a small business state. courage in the same way as it did some two Research released only yesterday shows years earlier during the liberation of East that of Australia’s 1.2 million small busi- Timor. As the grandson of a World War I nesses approximately 600,000 have started veteran, I say thank you to our servicemen since the Howard government came to office and women in the Australian armed forces in 1996, an outstanding achievement. Eighty- past, present and future. They are prepared to two per cent of all small businesses are micro place themselves in the way of harm and businesses, employing five employees or danger to protect the freedoms that make our less, and the overwhelming majority are way of life in this country the envy of the without a union-dominated work force. Over world. 30 per cent of all small businesses are now We should double our efforts to protect operated by women and this percentage is the things that we hold dear, whether they be growing fast. Best of all, the small business our family or friends, the freedoms we enjoy work ethic is supreme. Small business own- or the environment in which we live. Starting ers and operators have mortgages not only on at home, parenthood provides the archway their businesses but on their homes. Their or, if you like, the protective cover under necks are on the line. And unlike colleagues which our children can securely grow and in other sectors they cannot walk away from thrive. In difficult times a carefully built and a wrong decision or an unsuccessful venture strong archway can help to avoid the disunity without paying a personal cost. They stand and despair experienced as a result of family accountable for their actions and are respon- breakdown. sible for their decisions. This is a principle Wednesday, 20 March 2002 SENATE 1125

I commit to playing my part in replacing work in Australia has been estimated at more the complacency, apathy and frustration of- than $24 billion per annum. One in every ten prevalent in the community with encour- three adult Australians, or nearly 4.5 million agement and hope. The high levels of com- people, volunteer their services and skills in munity cynicism and disrespect shown for a community organisation. Our urban dwell- our public institutions and those in authority ers would do well to emulate the community are a sad but often fair indictment of us. I mindedness of the regions. Why do I say believe we as politicians should embrace this that? The volunteer rate was 28 per cent for criticism as a challenge from our employers capital cities, while for outside of the me- and simply strive to do better. tropolis it was 38 per cent. Tasmania has one We all have a deeply personal responsibil- of the highest levels of volunteer work in the ity to stand by our word, deliver on our nation, a level which gives me great pride promises and demonstrate respect for both and confidence in my fellow islanders. our peers and our constituents. It is far easier Volunteers provide the moral spinal cord to denigrate and tear down than to build. The of our economic and social fabric. It is the easy option, the quick fix and the path of volunteer character of this activity that cre- least resistance is rarely the right path to- ates and replenishes the relationships of trust wards a long-term solution. that are our greatest assets as a nation in While tourism and the new and knowl- times of need and crisis. The morale of our edge economy will be playing a growing role volunteers, however, is now under pressure. in our prosperity in the future, we cannot Our multibillion dollar investment in social neglect the traditional industries such as for- capital is at risk of dissipation and disinte- estry, farming, mining, fishing and manu- gration for a range of reasons. The spiralling facturing upon which our standard of living cost of public liability insurance is a signifi- has been built. The rural sector and its de- cant threat. For example, Diabetes Australia pendent downstream processing enterprises Ltd, in which I declare an interest as a di- last year contributed 33 per cent of Tasma- rector, is facing a 500 per cent increase, from nia’s gross state product. $24,000 per annum to $130,000 per annum. At the inception of the Liberal Party our Our three-year election cycle and our al- founder said: most insatiable appetite for media coverage produce a political focus on the immediate, We believe as we always have that our only free- often to the neglect of the important. Devel- dom is a brave acceptance of individual responsi- oping long-term plans, such as in business, is bility. essential to good government. Many in our legal fraternity now recognise the proliferation of class actions and aggres- As a former professional advocate for sive advertising, especially of accident and Australia’s aged care industry, I am aware of personal injury legal services through the the importance of access to quality aged care availability of no-win, no-fee arrangements. whilst maintaining a viable industry. This is These trends are counterproductive, and we important because older Australians deserve should endeavour to retard this rights based respect and dignity. There is cause to fear litigious culture and encourage a greater fo- that our fast-ageing population may not be cus on our responsibilities. It is time for the matched by a commitment to adequate re- pendulum to swing back. sources to meet future needs. Lifting national savings and encouraging capital into the As a government and community, I be- sector are trends I hope to accelerate at every lieve we need a paradigm shift in our think- opportunity. ing, in how we view our multibillion invest- ment in social capital. Recognition with an- Although volunteers contributed over 700 nual certificates or even the celebration of million hours of voluntary work in the year the International Year of the Volunteer is im- 2000, we ought not, by the absence of remu- portant but not enough. Volunteers who have neration, undervalue their contribution. The met certain criteria in terms of hours of work value of unpaid volunteer and community and out-of-pocket expenses incurred should 1126 SENATE Wednesday, 20 March 2002 be paid the costs of their travel, postage, One’s HbA1c is the measure used to phone, fax and out-of-pocket expenses, monitor blood glucose control. For people whether it be directly or via changes to our with diabetes, it is a measure equally as im- tax system. This is not intended as an en- portant as blood pressure and cholesterol. A croachment on the concept of voluntaryism one per cent decrease in one’s HbA1c results but, rather, an acknowledgment that a large in the following reductions in diabetes com- proportion of these unsung Australian heroes plications: death by diabetes, a 21 per cent engaged in voluntary work have scarce per- reduction; heart failure, a 16 per cent reduc- sonal resources to draw on. tion; stroke, a 12 per cent reduction; cataract, A more generous approach to community a 19 per cent reduction; amputation, a 43 per and non-profit organisations is also recom- cent reduction. In Tasmania last year, we had mended by the re-establishment and expan- 67 amputations of the leg as a result of dia- sion of the small equipment grants, which betes. last year saw 2,835 voluntary organisations Sadly, because of our Western lifestyle receive $7 million. Volunteers save Australia and proclivity for fast foods and limited ex- an absolute fortune—around $66 million a ercise, diabetes is now an epidemic. For day—and helping them in financially modest Australia’s indigenous people, it is, tragi- ways is appropriate public policy. cally, worse still. A member of that commu- I referred earlier to knock-backs. On 14 nity is eight times more likely to contract January 1997, following two months of los- diabetes than the average Australian. A ma- ing weight, constant tiredness, insatiable jor education and information campaign is thirst and going to the toilet, I was diagnosed required to find the 500,000 Australians who with type 1, or insulin-dependent, diabetes. are undiagnosed. Support and commitment Although starting a regime of five injections from all levels of government, GPs, the a day, I soon learned that, with regular exer- medical fraternity, health professionals, the cise, an appropriate diet and constant inter- private sector and the general public is re- change with my wife, Kate, I could live a quired to achieve this goal. normal, healthy lifestyle. Experience is not In conclusion, I have been inspired by a what happens to you; it is what you do and number of great leaders and people, includ- how you respond to what happens to you. I ing Abraham Lincoln for his perseverance gained a whole new perspective on life, be- and determination; Nelson Mandela for his ing granted a special empathy for those with demonstration of grace following years of disabilities. oppression and pain; Dame Enid Lyons, a There is more good news: we have a distinguished Tasmanian and the first woman growing economy and, by comparative stan- representative in the House of Representa- dards, a strong health system. For example, tives, for her love of family and her pio- the cost of managing one’s diabetes in the neering spirit; Sir Robert Menzies for his USA is eight to 16 times more expensive oratory and leadership skills; my mother, than it is in Australia. Let us not take that for Lady Ferrall, for her generous and gracious granted. One million other Australians also spirit and consistent love; my late father and have diabetes, with the vast majority having grandparents; and, most significant of all, type 2 or late-onset diabetes. Sadly, however, Jesus Christ, who led by example in love and half that number—500,000 Australians—are humility as a servant of the people. undiagnosed. These people are guaranteed to At the start of this new chapter as a mem- suffer serious health problems and a likely ber of parliament, I have asked myself what I premature death without a diagnosis. In would want written on my political epitaph. I Tasmania, 25,000 people have diabetes— would hope that at the conclusion of my po- 12,500 people are undiagnosed. A diagnosis litical life the people who stand in judgment of diabetes is good news, because if managed will say that Guy Barnett had a can-do atti- carefully one can live a normal, healthy life- tude; he encouraged others to achieve their style. dreams; he was effective and a pioneer; he cared and had compassion; he had a passion Wednesday, 20 March 2002 SENATE 1127 for life and a vision for his state and his knowledge of the non-government sector country; and, finally, more than his work, he know that from time to time students that loved his wife and family. have been expelled from the state system end COMMITTEES up in the non-government sector and, be- cause of different regimes, things happen to Economics Legislation Committee work well for them. The converse is also Report true: some that get expelled from the non- Senator CALVERT (Tasmania) (5.19 government sector do well in a government p.m.)—On behalf of the Chair of the Eco- school. To try to put one set of restrictions on nomics Legislation Committee, Senator the non-government sector is inappropriate. Brandis, I present the report of the committee In relation to the number of expulsions, on the provisions of the Taxation Laws once again Senator Brown finds it very diffi- Amendment (Superannuation) Bill (No. 1) cult to stick to the facts. He asked me prior to 2002 and a related bill. lunch about the number of expulsions, and I Ordered that the report be printed. indicated to him—I did not answer it—that STATES GRANTS (PRIMARY AND that was a matter for state governments. State SECONDARY EDUCATION governments have that responsibility. The ASSISTANCE) AMENDMENT BILL federal government does not keep statistics 2002 in relation to expulsions from the state school systems; the state governments do In Committee that. He should make inquiries of the state Consideration resumed. governments around the country, add them Senator ABETZ (Tasmania—Special all up together and he will get the numbers of Minister of State) (5.20 p.m.)—I take this expulsions that are, unfortunately, deemed opportunity to publicly congratulate Senator necessary by the state government authorities Guy Barnett on a fantastic first speech and around Australia. wish him all the best for what I am sure will We, as a federal government, do not want be a very distinguished career. to take that role away from state govern- Honourable senators—Hear, hear! ments. I think in general terms they do a Senator ABETZ—Senator Barnett and I good job in trying circumstances. I do not go back a long way, to university days, and I think the education system would be en- am delighted that he is here with me in the hanced in any way by trying to determine Senate. To his friends in the gallery, many of school expulsions from Canberra, as opposed whom I know: have a drink for me because I to leaving it to those who are closer, on the am on duty down here. ground—namely, the state government sys- tem. Before the fantastic speech by Senator Barnett, a few propositions were put to me Question negatived. by a senator and some quite false assertions Senator ALLISON (Victoria) (5.23 were made in relation to expulsions. Indeed, p.m.)—by leave—I move Democrats those who have any understanding and amendments (5) and (6) on sheet 2440:

(5) Schedule 1, item 1, page 4 (line 14), omit the formula, substitute the following formula: ( Number of secondary students for ) ( the school for the program year ) Establish- Number of primary stu- not exceeding 60 students where ) ment ( dents for the school for the the school is a secondary school ) amount for x ( program year not exceed- + ( or 30 students where the school is ) the pro- ing 60 students gram year ( a combined primary and secon- ) ( dary school ) 1128 SENATE Wednesday, 20 March 2002

(6) Schedule 1, item 1, page 4 (line 26), omit the formula, substitute the following formula: ( Number of secondary students for ) ( the school for the program year ) Establish- Number of primary stu- ( not exceeding 60 students where ) ment dents for the school for ( the school is a secondary school ) amount for x the program year not + or 30 students where the school is ) the pro- ( exceeding 60 students gram year ( a combined primary and secon- ) ( dary school )

These amendments will restrict the per capita and are, for whatever reason, able to get establishment grants to schools which have around the guidelines that are in place, get 60 students in a primary school or a secon- past the government on this issue and qualify dary school for both the first and second year for establishment grants. of funding or 90 students for a combined Senator CARR (Victoria) (5.26 p.m.)— primary and secondary school. I acknowl- The opposition will not be supporting these edge at the outset, because no doubt Senator amendments, because we believe that our Abetz will point this out, that this is an arbi- amendments (3) and (4) establish essentially trary figure, but it is nonetheless an account- the same intent as I understand the Demo- ability measure—an attempt on our part to crats amendments are doing but in a better find a way of making sure that we do not way. The Democrats amendments, in our have a situation where so-called new schools judgment, are arbitrary, and we would argue start with enormous enrolments and qualify in favour of the amendments which I will for the establishment grants. move in a few minutes. If they do start with enormous enrolments, Question negatived. one of three things can generally be argued to be the case, I think, and I am sure the gov- Senator CARR (Victoria) (5.27 p.m.)—by ernment could follow this if it chose to. leave—I move opposition amendments (3) Those students will be from a previous and (4) on sheet 2442: school and this will be a new campus of the (3) Schedule 1, item 1, page 4 (lines 16 to 21), same school or, as Senator Carr mentioned omit the definition of establishment earlier, this will be the same school setting amount, substitute the following definition: up with the same directors and school princi- establishment amount for the program pal and essentially the same students and year is as prescribed in accordance with qualifying for this funding when it ought not the principle that the amount of a grant allocated to each school will be in di- or this will be a school which may well be rect proportion to the SES score for the poaching students from existing schools in school set out in Schedule 4 of this Act the immediate region. So our amendments so that the largest grant is made to the are an attempt to say that a reasonable start school with the lowest ranked SES for a school is probably two grades. That, as score and the smallest grant is made to I understand it, is how most new schools the school with the highest ranked SES begin. They start with preps or with year 7, score. and then they build the school year after (4) Schedule 1, item 1, page 4 (line 28) to page year. I think I recall the minister saying that 5 (line 2), omit the definition of establish- the average size of new schools in terms of ment amount, substitute the following defi- students was well below either the 60 figure nition: or the 90 figure that we are suggesting would establishment amount for the program be reasonable. These amendments certainly year is as prescribed in accordance with would stop schools starting off with over 700 the principle that the amount of a grant students. I commend them to the Senate. As I allocated to each school will be in di- said, I realise the figures are arbitrary; none- rect proportion to the SES score for the school set out in Schedule 4 of this Act theless, they attempt to get rid of what is so that the largest grant is made to the clearly an abuse of this generous entitlement school with the lowest ranked SES by schools that are not really new schools score and the smallest grant is made to Wednesday, 20 March 2002 SENATE 1129

the school with the highest ranked SES continues to provide such privileged treat- score. ment to those that are already wealthy. Then Amendment (3) relates to primary schools again no doubt the minister would be able to and amendment (4) relates to secondary explain to me why it is that the recurrent schools. Both amendments go to the issue of grant paid by this arrangement is so favour- the amount of the grant allocation under able to the wealthy schools. schedule 4 of this act. The States Grants The resource poor schools obviously are (Primary and Secondary Education Assis- in need of greater assistance. Schools such as tance) Amendment Bill 2002 provides a Reddam House in Sydney, I believe, is one fixed per capita establishment grant for every that clearly cannot be seen in the same cate- eligible school, without regard to their cir- gory—given they have new marble bath- cumstances. This is inconsistent with the rooms and the various other facilities that basic principles of need. Our amendments make it look like a TV studio, as we have are intended to provide a differential per already indicated—as schools such as the capita establishment grant, based on relative Ballarat Steiner School, which basically be- need. Grants would be paid on a sliding gan life in the local village hall in Bungaree. scale, depending on each school’s SES score. The opposition is prepared to state the prin- I want to emphasise that this should not be ciple of differential grants based on need in seen in any way as an acceptance of the SES the legislation and through our amendments model by us. When we get into government, to allow the government to bring back the I am sure there will be other tools available dollar amounts in regulations. That is the but, given the facilities currently in opera- approach we are taking here. We are expect- tion, because it is the only tool currently ing there to be integrity in the government’s available, it is the only means by which we response. We clearly need to establish what can allocate moneys under the current legis- the budgetary implications are of the gov- lative framework. ernment’s current bill. It is our assumption What we are seeking to do here is basi- that current arrangements would lead to a cally to provide a logic which would make situation which is essentially open-ended. the establishment grant program consistent Our measures would provide for a sliding with the recurrent grants program and to scale of grants to show allocations of $500 in make sure that the funds are distributed ac- the first year and $250 in the second year cording to a measure of need. What we are which are about the middle point of scale on seeking to do here is to ensure that all a range of schools eligible for establishment schools will receive a per capita amount. For grants. I commend the amendments to the the wealthiest schools, where the Common- chamber. wealth support is at the lowest end—and, I Senator ALLISON (Victoria) (5.31 would argue, quite rightly so—the proposed p.m.)—I indicate the support of the Demo- establishment grant of $500 per student crats for these amendments. Having said that, would increase the general recurrent grant by I also indicate this does not suggest that we almost 80 per cent in primary and 55 per cent believe the SES score is an entirely suitable in secondary in the first year. For the poorest measure of need. As we all know, there are school communities with the lowest SES enormous anomalies in the way the SES scores, the proposed uniform grant of $500 score is working, but it may be better than no would be increased on general current grants measure at all and it certainly will move of only 14 per cent for primary and 11 per some schools into a more equitable situation. cent for secondary. Quite clearly, there is a It is a step in the right direction, but the discrepancy in the way in which the govern- Democrats would like on the record our ac- ment has approached this. I can only pre- knowledgment that the SES is far from a sume this is an administrative oversight. I proper tool to be doing this. would hate to think we would have to go Question agreed to. through yet another series of arguments to demonstrate why it is that the government 1130 SENATE Wednesday, 20 March 2002

Senator CARR (Victoria) (5.32 p.m.)—I The TEMPORARY CHAIRMAN move opposition amendment (2) on sheet (Senator Forshaw)—Excuse me, Senator 2442: Carr. Senator Allison, are you raising a point (2) Schedule 1, item 1, page 5 (after line 2), of order? after subsection (6), insert: Senator Allison—I am seeking the call (7) Expenditure of a payment made in ac- because it seems to me that Senator Carr is cordance with this section shall be re- speaking about his amendment (5), whereas I stricted to the purposes of such recur- thought we were on amendment (2). Could I rent establishment costs as may be pre- just have clarification we are on opposition scribed. amendment (2)? This amendment seeks to establish the ineli- Senator CARR—I am on amendment (2). gibility of establishment grants funding for a The points I make are entirely valid. school where the school derives income from school fees and where the average level of Senator Abetz—The same speech for all. the amount of fees derived by the school is Senator CARR—That is an entirely cyni- equal to an excess of the amount equivalent cal view, Minister. to a per capita GSRC. We are suggesting Senator ALLISON (Victoria) (5.36 schools that are very wealthy are clearly in a p.m.)—I indicate support for this amend- different category from schools that are hard ment, but I make the point that, as I under- up. stand it—and correct me if I am wrong, Some schools receive from tuition fees Senator Carr—payment will be ‘restricted to alone funding equivalent to the higher or the the purposes of such recurrent establishment recurrent resources in government schools. I costs as may be prescribed’, which essen- have indicated to the chamber before that tially leaves it up to the government to de- there are schools operating in this country— cide what is a proper purpose for which the and I will just list a few—with high fees. establishment grant should be paid. Can I Wesley College, for instance, is currently on just get confirmation of that or is there an- $13,500 per year per child. We have Toorak other document that describes what is appro- College in Melbourne, $12,220 per child. We priate? have Brighton Grammar at $13,075 per Senator CARR (Victoria) (5.36 p.m.)— child. We have Geelong College, $11,528 per That amendment has been dealt with. The an- child. We have Geelong Grammar—it is ob- swer to your question is yes, and that has viously very difficult there—where the fees been carried by the chamber, as I understand for each child are $15,820. If you are a it. boarder in Geelong, I understand the fees are Question agreed to. now up to $20,000 per year. At Geelong College, I understand, you can bring your Senator CARR (Victoria) (5.37 p.m.)—I pony along if you really need to. They have move opposition amendment (5) on sheet stables and various other facilities available. 2442: They are obviously a struggling school. (5) Schedule 1, item 1, page 5 (after line 2), Clearly there are differentials— after subsection (6), insert: Senator Abetz—Glad you brought its (8) A school is ineligible for establishment donkey along. grant funding where: Senator CARR—You mentioned don- (a) the school derives income from stu- keys, Minister, and I have no doubt I could dent fees; and speak at length about the number of donkeys (b) the average level of the amount of that have dreamt up a scheme like this. It is fees derived by a school in para- graph (a) is equal to or in excess of an extraordinary proposition. You have fa- the amount equivalent to per capita cilities available for your pet ponies. They AGSRC. are clearly in a different category from a lo- cal school that is actually in such a difficult I was explaining—in a persuasive manner, which I have no doubt the government will situation. Wednesday, 20 March 2002 SENATE 1131 be moved by—that there are schools operat- Capital grants for government schools ing in this country which cater for the Column 1 Column 2 wealthy. Extraordinary wealth is exhibited by Program Year Amount of grants these schools; you just have to look at the ($’000) facilities that are available. That is quite in- 2004 232,321 equitable compared with schools which are 2005 not able to attract the high-fee incomes that 2006 the category 1 schools can attract. These are 2007 elite schools. Therefore, there needs to be a Note 1: Amounts for 2005, 2006 and 2007 will method of allocating funds to provide genu- be inserted by an amending Act. ine equality of opportunity for all Austra- Note 2: The operation of section 106 may affect lians. That is not the current situation. the amount of the grants. In terms of the policy framework that is The TEMPORARY CHAIRMAN being pursued by the Commonwealth, we (Senator Forshaw)—Is it the wish of the acknowledge that there are high-fee schools committee that the statements of reasons ac- which are receiving per capita grants from companying the request be incorporated in both Commonwealth and state governments Hansard. There being no objection, it is so and that the way in which these are allocated ordered. under the SES formula is unfair. There are The statements read as follows— schools that operate at least 30 per cent Statement pursuant to the order of the Senate above the funding that is provided to public of 26 June 2000— schools. When they are able to charge fees in The amendment is circulated as a request because excess of $10,000 to $15,000, they operate at it would have the effect of increasing expenditure two to three times the level of resources that under the appropriation in section 111 of the are available for public schools. There is a States Grants (Primary and Secondary Education similar pattern for Catholic parish schools, Assistance) Act 2000 by $30million. It therefore which make up 65 per cent of the non- increases the “proposed charge or burden on the government sector. There are clearly dispari- people” within the meaning of the third paragraph ties in the availability of resources, and this of section 53 of the Constitution. is having quite a serious impact on the edu- Statement by the Clerk of the Senate pursuant cation system in this country. We argue that to the order of the Senate of 26 June 2000— there ought to be genuine equality of oppor- The Senate has treated as requests amendments tunity and that the only way to do that is with which increase expenditure out of appropriations a policy setting that aims to achieve that re- an Act amended by the bill. This request is there- fore in accordance with the precedents of the sult. Senate. Question agreed to. This amendment is a recycled ALP amend- Senator ALLISON (Victoria) (5.41 ment from the previous debate on this sub- p.m.)—I move request (1) on sheet 2441 for ject. We feel that it is important that the fed- an amendment. eral government does not forget that the That the House of Representatives be re- public sector exists, and there ought to be quested to make the following amendment: provision for government schools in this (1) Schedule 1, page 5 (after line 6), after item legislation. This is an arbitrary request that 3, insert: capital grants for government schools be in- 3A Schedule 3 (table) creased in the order of $30 million. As I have said earlier in this debate, I spend a lot of Repeal the table, substitute: time in government schools, and it is disap- Capital grants for government schools pointing that so many of them exist in poor Column 1 Column 2 conditions. Very few government schools Program Year Amount of grants have no need of temporary classrooms—so- ($’000) called portables—and some of these are in 2002 232,321 appalling condition and are unsuitable places 2003 232,321 for students to learn and for teachers to 1132 SENATE Wednesday, 20 March 2002 teach. Very often they are inadequate in size pursued by this government is in sharp con- and planning, and they are very uncomfort- trast to the traditional view that Liberal gov- able spaces because they are very hot in ernments have pursued. Take for example summer and very cold in winter—and often Robert Menzies’ attitude—you will not hear they leak as well. That is just one example of me quote Robert Menzies too often—that the the poor facilities that government schools Commonwealth’s responsibility lies primar- often have to put up with. ily with public education and public schools. I know that there are lots of schools in the In 1945 he said: non-government sector where money is tight If adequate resources are not available to the as well, and I have visited a lot of those, but states, they will cut their coats according to their it is rare to find the same sort of struggle for cloth and that ought not be allowed to happen. As facilities that you so often see in government a nation, we cannot afford to do anything less schools. Schools have to raise money them- than our best in a campaign, the result of which will be to determine whether in the New World selves. They very often do not have indoor we are to be a nation of strong, self-reliant, gymnasium equipment or facilities, and this trained and civilised people or whether we are to would go some small way to redressing the be content with second-rate standards and more imbalance. I know that there is a separate devoted to the pursuit of material advantage than budget for capital works and that is not to the achievement of genuine, humane commu- strictly part of what this legislation is about, nity spirit. but it is a gesture as much as anything. I Those are the sorts of lofty values that were would welcome the government’s support of expressed by Menzies. That is not the ap- this gesture when this request reaches the proach being pursued by this government. House of Representatives, because the 70 per Labor are committed to genuine equality cent of students in the government sector of opportunity for all Australians. This gov- would feel that they were not being entirely ernment is committed to the provision of forgotten by this government when it comes special, privileged assistance to those who to handing out money. That is the purpose of are already privileged. It is important for the this request. As I said, this request was Senate to be clear as to Labor’s view on this moved by the ALP last time around, and I issue. In all conscience, we cannot hold up would welcome their support. this piece of legislation in that light as an Senator CARR (Victoria) (5.45 p.m.)— example of good public policy, because it This is clearly one of those interesting occa- continues the trend established in the original sions where the Democrats have moved an states grants bill. The legislation we have amendment that Labor have moved in the before us goes to a program, however, of past. I emphasise that we are committed to ancillary assistance, of additional funding for fair and equitable funding for all schools, new non-government schools. including government schools. One of our The principles have to be brought to bear, great concerns has been—we are quite seri- and I have demonstrated they have been ous about this—the share of Commonwealth brought to bear by the opposition in our as- funds going to government schools since the sessment of this legislation that allocates election of this government in 1996. public funds for schools. What is sorely What the minister obviously did not have needed is a return to a rational and equitable pointed out to him by his officials before he system of public funding for children in all was given the note is that since 1996 Com- schools across this country. That is what we monwealth funding to all government are committed to. We are looking for a com- schools stood at 43 per cent. By 2004, prehensive policy review. My colleague Ms Commonwealth funding will be down to less Macklin is undertaking a comprehensive than 34 per cent. That is an extraordinary policy review of assistance that should be led shift in anyone’s language—moving from 43 by the Commonwealth to the children of this per cent down to 34 per cent. In my view, the country. That will lead, in my judgment, to a attitude of essentially undermining the public new policy framework which will see education system in Australia that is being schools funded under a Labor government on Wednesday, 20 March 2002 SENATE 1133 the basis of need—and that is all schools, not believe is worthy of support. Senator Carr just government schools and not just non- sought to make some points in his contribu- government schools or newly established tion, but the facts need to be pointed out. schools. Senator Carr referred to an alleged decrease Last year, when this legislation was de- from 43 per cent to 34 per cent in relation to bated, we sought to increase funding under funding by the Commonwealth for state gov- the Commonwealth establishment grants ernment schools, which represents a nine per program. We are contemplating a situation cent difference. Let me make two points where we might well have assumed we about that. During the same period, non- would be in government after the last elec- government school enrolments increased not tion. If it were not for the particular direc- by nine per cent but by 16 per cent. There- tions followed by the Howard government in fore, for the number of students it looks after, regard to certain issues of race, it may well the state government sector in fact got an have occurred. It may well have occurred increase in real terms. had this government not adopted such a des- This is a philosophical argument that has picable position with regard to the manipula- been bantered backwards and forwards dur- tion of the race card. Had a Labor govern- ing the course of this debate. The Australian ment been elected, there would have been the Labor Party and others are locked into a opportunity to undertake a thorough revamp fixed ideological position which is often of the establishment grants program, espe- based on the politics of envy. Basically, we cially its administration and eligibility crite- as a government say that, if people are pre- ria, to bring funding to government schools. pared to invest from their private funds in the In that context, the measures it was appropri- education of their children, they should not ate to pursue at that time are not those being be denied access to support to which they proposed today—they were entirely different would otherwise be entitled to, albeit on a circumstances. We are now faced with the different basis to those who are more in circumstance where Australian schools are to need. I wanted to clarify that for the record be subject to the deprivations of Dr Kemp so that, in the event that any people trawl and the Howard government—and, whether through the Hansard or anyone perhaps is he likes it or not, Dr Nelson is becoming the listening, there is no suggestion that what inheritor of Dr Kemp’s ideology. Senator Carr is asserting is in fact the truth. It These circumstances behove the opposi- is part of the truth but, as is so often his tion to seek amendments to this legislation wont, he can quote a bit of the truth but mis- that will strengthen the positive public policy represent the total position, and that has un- implications in terms of the establishment fortunately occurred throughout this debate. grants program and target funds to needier Just for the record, of the specific schools schools rather than the wealthier schools. budget measures in the 2001 budget, 87 per The ones that do not need it should not get it. cent of the funding was directed to the 69 per We ought to be able to provide a mechanism cent of students in the government sector. to clean up the administrative nightmare—in That is the beauty of this government. my opinion, the shameful mess—which has This government has increased funding to resulted from the failure of this government both the government and non-government to face up to its responsibilities with regard sectors—and the mums and dads of Australia to this area of schools policy. That remains realise and accept that. We do not try to play our priority. We cannot support the Demo- the wedge politics of division between the crats amendment, because our priority is to mums and dads to choose state education as establish an improved administrative frame- opposed to non-government education. We work in terms of this government. say that both sectors should be looked after Senator ABETZ (Tasmania—Special and should not be denigrated by the sort of Minister of State) (5.53 p.m.)—As Senator terminology that we have had to listen to Allison indicated, this is a recycled ALP during the course of this debate. We as a amendment—which even the ALP do not government are supportive of both systems. 1134 SENATE Wednesday, 20 March 2002

Indeed, our very own Prime Minister is the now been abandoned—attempts to help hold product of the state system, as am I, and we the line as far as funding of the public school are both committed to its adequate and on- system in Australia is concerned, and the going funding. Australian Greens support it. Senator BROWN (Tasmania) (5.56 The TEMPORARY CHAIRMAN p.m.)—The mums and dads of Australia, by (Senator Forshaw)—The question is that and large, send their children to public the request for an amendment moved by schools. That is the first thing to be said. Senator Allison be agreed to. Many of the mums and dads of Australia do Question negatived. not have the choices that are open to some of the mums and dads who are fortunately able Senator BROWN (Tasmania) (5.59 to select between private schools and the p.m.)—I move Australian Greens amend- public school system. The public school ment (R1) on sheet 2470: system is set up to ensure that there is a fair (R1) Schedule 1, item 1, page 5 (after line 2), opportunity for every child who goes out the after subsection (6), insert: door in the morning to have her or his edu- (7) Where a new school applies for an es- cational needs fulfilled and life opportunities tablishment amount in accordance with opened up. But in the last decade or so the this section: overall funding of education—if you com- (a) the Minister must cause all gov- pare it with spending at the start of the last ernment schools within a 10 kilo- decade—has dropped by more than $1 bil- metre radius of the school making lion in this country. We are way back in the the application to be notified of that application; field when it comes to the proportion of the gross domestic product that goes into educa- (b) a school which has been notified in tion. That has happened not only under the accordance with paragraph (a) may make a submission notifying that Howard government but also under previous payment of an establishment Labor governments, but it has been acceler- amount is a risk to its viability, di- ating. versity or enrolment numbers; One of the great problems is that, at the (c) a submission made in accordance moment, not only has the number of dollars with paragraph (b) will be consid- going into education diminished but also ered by the Ministerial Council on there is a diversionary process. That involves Education and Youth Affairs or its diverting money to the private school sector. delegate; No-one is going to say that that sector should (d) following consideration in accor- not be there and no-one is going to say that dance with paragraph (c), the anybody’s choice to go to that sector should Council may make a determination be enhanced beyond the already discrimina- that a school is ineligible for es- tory positions that families find themselves tablishment grant funding. in—where some people have the money and (8) The Minister may not make a determi- some people have not. What the Australian nation in accordance with subsection (1) Greens are arguing is that we are here deal- or (2) until the requirements in subsec- ing with public funding and we are dealing tion (7) have been met. with public education, and those two things This amendment means that, where new pri- go together. Private funding and private edu- vate schools are set up, the nearby public cation go together as well. I know the argu- schools will have the opportunity to notify ments there are across the line on that, but the government about the effect that will what I am concerned about is the continually have on their enrolments and, therefore, on increasing difficulties for people in the pub- their financial viability. These things do not lic education system—not least the teachers happen in isolation. There is a real concern and the students. The Democrats amendment that, where you get public school students moved by Senator Allison—which was the being inveigled across to the private school Labor Party’s position but this has apparently system, they not only leave and go to the other school but also take money with them. Wednesday, 20 March 2002 SENATE 1135

It is public money, and it is a lot of public apparent, I think, if you know anything about money. That further squeezes the ability of education at all. the public schools not only to survive but to In fact, the question of choice is not an produce the comprehensive and varied op- unambiguous good; increasing choices for portunities in education that the private some obviously has effects on others. If you school system is so good at advertising at the take a certain block of students away from a moment. particular school, that undermines the capac- I recommend this amendment. It will al- ity for other students in the school in terms low government schools within a 10- of the curriculum offerings, the teachers that kilometre radius of a new private school to are available, the facilities that are available make application and to notify ministers that and so on and so forth. there is a risk to their viability, their diversity In terms of the general principle there is and their enrolment numbers. It will also considerable merit, but your amendments, allow them to approach the Ministerial Senator Brown, we unfortunately did not Council on Education, Employment, Train- have the opportunity to discuss with you. We ing and Youth Affairs or their delegate to did offer the opportunity to you to do that, inform them about this so that the council but we did not hear back from you. It would can then make a determination as to whether have been better for us, I think, to have had the private school that wishes to apply is eli- an understanding of the way in which you gible or otherwise for the establishment have drafted this proposition. The source of grant. The minister, finally, may not make a the formula listed here is not clear to us; the determination about this until that advice intent of the formula is not clear to us. In that from the council is forthcoming. It is a sys- context, it is difficult for us to agree to it. tem that says, ‘Let us hear back from the Furthermore, if you look at your amendment, community which is going to be affected and it goes to the issue of funding for govern- the public school system that is going to be ment schools, not necessarily the issue of affected. Let us make sure that the impact on funding for establishment purposes for non- them of the establishment grants that we are government schools. In that context, if it is in dealing with here is known and fully as- fact about planned provision for public edu- sessed before we proceed.’ cation then there is a need for a much more Senator CARR (Victoria) (6.02 p.m.)—I substantive consideration of these issues and indicate to Senator Brown that the Labor it ought to be done properly. This amend- Party does support the principle of this ment does not fulfil those criteria and we are planned provision. I have indicated already not able to support it. that the McKinley report on these matters— Senator ALLISON (Victoria) (6.05 and there are two volumes of that report: p.m.)—I just want to indicate that, likewise, 1995 and 1996—highlighted some important the Democrats think that this is a worthy ob- issues which remain valid in our considera- jective, but I draw Senator Brown’s attention tions today. In particular, on the so-called to the second reading amendment where we issue of choice I think that the general rhe- set out to put in place what is commonly torical concept, which is worked so hard by known as planned educational provision the other side of the chamber on these mat- where there is a multiplicity of methods by ters, is very difficult to translate into a par- which the establishment of a new school ticular program which actually guarantees at needs to be judged. I think it is a fine idea to the same time equality of opportunity. There invite schools around the immediate area of a is clearly a major contradiction in the way in new school to make submissions but I am which that principle is applied to the actual concerned about the distance over which this operations of schools. As I put it before, I would take place—a 10-kilometre radius is a think it is simply the case that the question of 20-kilometre diameter—and if you put that one person’s choice may well be at the ex- kind of circle over any metropolitan area, pense of another person’s choice. That is you will pick up a great number of schools. 1136 SENATE Wednesday, 20 March 2002

So administratively it would be, I think, quite better? I accept Senator Allison saying that a difficult. second reading amendment would have been I am also a little unclear as to the role of an alternative, but this amendment is real, it the Ministerial Council on Education, Em- is here and it is now. ployment, Training and Youth Affairs. In Senator Allison—My second reading doing this, it seems that this body might not amendment has been passed. be the proper one for such an arrangement. Senator BROWN—Yes, but it is not im- Like the ALP, I think that it is a worthy ob- plementing this provision, and this is not in jective. I think that what we are getting at conflict with it. Might I add to Senator Alli- here is a better way of planning new schools son that the reason for introducing the min- so that money is not wasted on those which isterial council is to ensure that at the end of will turn out to be unviable or those which the day the federal minister for education will make other schools unviable. It is useful simply cannot ignore this provision, because to have such a tool but, in our view, the we know that the federal government is bi- Democrats second reading amendment does ased against the public school system. So, this with greater effectiveness. yes, I accept that this is an imperfect instru- Senator BROWN (Tasmania) (6.07 ment, but it is better than not having one, and p.m.)—I do not accept either of those argu- the Labor Party should be supporting it. ments. The fact is that we have now had Senator ALLISON (Victoria) (6.10 three amendments come up in a row, one of p.m.)—Just to make it clear what the second which was the Labor Party’s own amend- reading amendment does, I will quickly run ment last time around, about which the Labor through the first part of it. It is to establish: Party has effectively said, ‘What a great ... a Planned Educational Resource Allocation idea—we oppose it. It is the sort of sentiment Committee to assess applications for funding for that we support, but give us the opportunity the establishment of new schools in each State and we will vote it down.’ That is part of the and Territory. This committee will comprise rep- problem with the process whereby the public resentatives of the Commonwealth Department of school system is losing out. The Labor Party Education, Science and Training, government and is just not sticking to the principle it es- non-government school employing authorities, pouses when it gets the opportunity to drive parents and teacher unions. This Committee shall it home using the numbers that we have here advise the Minister on the funding of new in the Senate. schools, taking into consideration the following: I recognise that these are difficult matters (i) the duplication of educational services in an area; to implement, but you cannot abandon the pursuit of finding the legislative tools that (ii) the impact of the establishment of the new are required to make sure that this runaway school on surrounding schools; diversion of funds from the public school (iii) the willingness of the school to cooperate system is halted and the consideration of the with other schools in the sharing of resources; impact it is having on the millions of chil- (iv) the level of determined community need for dren who go to the public school system, the new school; which is becoming very much a second-class (v) the financial viability of the new school; system. We need to assess the impact of that and a couple of other measures. So the sec- and then do something about it. That is the ond reading amendment may not be in con- important thing, doing something about it. flict, but certainly the requirements under There may be only one Australian Green in this amendment would be, I guess, taken care this place but we have been able, with the of already in the amendment that was put up. help of people in the education community, Senator BROWN (Tasmania) (6.11 to come up with at least a device. I do not p.m.)—I thank Senator Allison for that, but accept that, because that device may be im- the answer is not quite. While the Democrats perfect, therefore you abandon the effort to amendment is advisory, the Greens amend- make things fairer. If it is not good enough, ment takes the action that gives the ministe- where is the Labor amendment that is doing rial council the ability to make a determina- Wednesday, 20 March 2002 SENATE 1137 tion here in response to the community. That the private school system is increasingly able is very different to giving advice to the min- to give as more and more public funding ister, because we by and large know what goes across to it. But you cannot do that un- happens when you advise a minister of the less you give the public school system the Howard government in favour of the public funding, and in doing so you have to vote an school system. The private school system is endorsement to the teachers, and indeed the going to have the wherewithal to carry the administrators, in the public school system day there because that is the way lobbying is who strive so hard not to be demoralised by going currently. I reiterate that we are seeing this process that is occurring in Australia. a rapid deterioration of the ability of the The Senate has the opportunity to say to public school system to deliver anything like this government that enough is enough, that the facilities and opportunities of the wealthy we are going to turn around this imbalance private school system. That is the reality. and this drift towards disadvantage in the The question we have to ask in this egali- public school system. It is a real disadvan- tarian country of ours is whether it is right tage. I am not saying that the public school that millions of students are having their system is doing well so why don’t we give ability to have a varied, opportunity enhanc- some to the private school system. I am say- ing and skills enhancing education dimin- ing the public school system is doing poorly ished so that those in already wealthy in terms of funding. As the dollars dry up for schools can have their opportunities and ad- the public school system, it is very easy for vantages enhanced. My answer to that is, the government, for ministers and Prime yes, the choice is there for people to pri- Minister Howard to simply say, ‘If the teach- vately establish schools and develop them ers do better the results will stay up.’ Go and and give alternatives to the public school speak to those teachers, ask them about the system. But we are in a nation where the esteem they have for the system and about public school system is being seriously the happiness with which they are able to eroded in its ability to give the sort of educa- deliver education today, as against 10 or 20 tion to Australian children that we all want years ago. It is unfair but, worse than that, it for them. Without investing in Australian is creating disadvantage for a great number children to the degree which is going to of young Australians. Yes, these Greens maximise their opportunities, we are selling amendments are tough: there is lateral short the future of the country itself. thinking in them. But they are to deal with It is easy to come up with rhetoric like that the disadvantage that the government is but that is the reality, and you have to do the dishing up through this and other pieces of comparison on two scores. Firstly, how were legislation we have seen go through this we funding public education in this nation 10 place since 1996. I say to both the Democrats to 20 years ago? The answer is billions of and the Labor Party: support this amendment dollars ahead of where we are now. The sec- from the Australian Greens. If you do not ond indicator is, how do we rate with similar support it, where is the alternative with teeth countries around the world, the OECD na- in it? tions, for example? We are right at the back Question negatived. of the pack. Injecting $1 billion, $2 billion or Senator BROWN (Tasmania) (6.16 $3 billion more into public education would p.m.)—I move: simply bring us up to mid-range. We are (R2) Schedule 1, item 1, page 5 (after line 2), many billions of dollars short of being at the after subsection (6), insert: front, where Australians would expect their public school system should be. Yet here we (9) Where a new school receives an es- tablishment amount in accordance with this sec- are dealing with legislation which is giving tion: millions more to the private school system, which opens up opportunities for a minority (a) all government schools shall be eligible for a stabilisation grant if they are within of children. I would like to see the public a 10 kilometre radius of a new school school system be able to give the options that receiving an establishment amount; 1138 SENATE Wednesday, 20 March 2002

(b) the amount under paragraph (a) for a program year in relation to a school must not exceed the amount worked out using the formula:

Establish- ( ) ment ( Number of primary Number of secondary stu- ) amount for x ( students for the school + dents for the school for the ) x 2.33 the program ( for the program year program year ) year ( )

This amendment reads that where a new means that if $30 goes to an establishment school receives an establishment amount in grant for a private school then $70 will go to accordance with this section—remember this the public system in that area as a stabilisa- is for a new school in the private sector— tion grant—that is, to help them offset the then, firstly, all government schools shall be clear disadvantage that they will have eligible for a stabilisation grant if they are through loss of students and loss of income within the 10-kilometre radius of that school under this process. and, secondly, the amount will be worked out Senator ALLISON (Victoria) (6.20 under a formula, which is given there, which p.m.)—I think that would be problematic if basically says that 70 per cent goes to the you were to consider the likelihood that there public school system and 30 per cent goes to could be one or two schools in a particular the private school system. area of this size. We actually had a look at I admit that this is a fairly blunt instru- what 10 kilometres would mean in metro- ment, but I challenge those who say that it is politan areas. When we looked at a circle on and ask them to come up with something a map, you could get 44 schools in one area. better. Let us not ignore this opportunity to If what you are saying is that 30 per cent ensure that public schools in the region of would go to the new school being established those private schools that are getting largesse and that the 70 per cent left would be distrib- through this legislation get their fair amount. uted to the rest of the schools, it would be a Seventy per cent of children go to the public very small amount indeed and probably not school system and 30 per cent go to the pri- worth the arrangement. vate school system. Let us have the alloca- Senator BROWN (Tasmania) (6.21 tion divided accordingly. p.m.)—Anything that will help redress the Senator CARR (Victoria) (6.18 p.m.)— imbalance here has to be considered and As I indicated in my previous remarks the ori- should be supported. That is why this gins of the formula that Senator Brown has amendment by the Greens should be sup- proposed are not clear and it seems some- ported. what arbitrary in its construction. We are not Question negatived. able to support this amendment. Senator CARR (Victoria) (6.21 p.m.)—I Senator ALLISON (Victoria) (6.19 move: p.m.)—Could Senator Brown explain a little Schedule 1, item 1, page 5 (after line 2), more how that formula would work. This is a after section 75, insert: matter I raised with him earlier today. I am 75A Review of grants to provide estab- not able to understand what it means in terms lishment assistance of the revenue impact and the size of the (1) The Minister must cause a review of grants. As I said earlier, the 10-kilometre establishment grants to be conducted radius is a very big area and we should have by the Department of Education Sci- some idea of what the implications of that ence and Training. would be. (2) The review is to include an assessment Senator BROWN (Tasmania) (6.19 of the extent to which payments made p.m.)—I can answer Senator Allison. It in accordance with this Act have been Wednesday, 20 March 2002 SENATE 1139

successful in meeting the recurrent es- parency of operation of the program and the tablishment costs of new schools with effectiveness and efficiency of the admini- particular reference to the: stration of the government’s program. That is (a) eligibility; and why we are proposing that the review in- (b) accountability and transparency; clude an assessment of the extent to which and payments, made in accordance with the act, (c) administration of the payment of have been successful in meeting the recurrent establishment grants. establishment grant cost of schools and that (3) In conducting the review required by it look at eligibility, accountability and ad- this section, the Department must es- ministration. tablish and consult with an external We are proposing the establishment of a reference group representative of representative reference group of school school authorities and organisations. authorities and organisations that would al- (4) A report of the review conducted in low people who are actually deeply con- accordance with this section must be cerned about these matters to have an input made publicly available before the ex- into the review of the government’s program, piration of the 2003 calendar year. that the report be made public and that it be This revised amendment (6), like all our concluded in 18 months. There is plenty of propositions moved today, is very reasonable time for the government to see how it is run- and fair and is moved to address the concerns ning. I have obviously expressed my deep that have been expressed right across the concern about the program using the evi- education community. There are deep issues dence available to the opposition. I trust that in regard to the problems with the admini- this amendment finds the support of the stration of this program, in regard to the eli- chamber. I do not expect the government to gibility of schools under this program and in support it, but I strongly urge the government regard to the accountability mechanisms un- to think about the message that will go from der this program. this chamber to the House and will come The Labor Party has very deep concerns back to us tomorrow, presumably. regarding the equity of this program. A series Senator ALLISON (Victoria) (6.25 of administrative anomalies and apparent p.m.)—I indicate the Democrats’ support for misallocations of funds have been identified this amendment. I think it is essential that we from the very beginning of this program. We have a review of the establishment grants. have genuinely sought to propose changes They are, after all, open-ended. Serious which would strengthen the administration of questions have been raised about account- this program and target funding to schools ability and the extent to which this is going that actually need it. We have provided the to be an impost on taxpayers. I think the government with plenty of flexibility and terms of reference that have been established plenty of opportunity to address those con- by the ALP are good. I too suggest to the cerns. We have, in fact, been remarkably government that they seriously think about unprescriptive with the detail. supporting this amendment. We hold these amendments very strongly. Senator BROWN (Tasmania) (6.25 The issue we have particular concerns p.m.)—The Australian Greens’ pivotal vote about—and I want to emphasise this so that will go to supporting this amendment. the government understands—is the review. Amendment agreed to. It is critical to our approach to this bill. What Senator BROWN (Tasmania) (6.26 we are proposing here and what we want an p.m.)—The Australian Greens oppose the understanding from the government on is item in the following terms: that the review will address the fundamental concerns we have pursued throughout this (4) Schedule 1, item 4, page 5 (lines 7 and 8), debate—that is, the eligibility of schools for TO BE OPPOSED. establishment grants, the accountability of The Greens oppose the item because we the schools receiving those grants, the trans- want to maintain the limit on the total amount of Commonwealth funds going to 1140 SENATE Wednesday, 20 March 2002 private schools. I have argued that through- That these bills may proceed without formali- out this debate. The public school system is ties, may be taken together and be now read a first very much in need of those funds. I think we time. should have a limit on them until we can Question agreed to. redress the imbalance. That explains our op- Bills read a first time. position to this particular item. Second Reading The TEMPORARY CHAIRMAN (Senator Bartlett)—The question is that Senator ABETZ (Tasmania—Special item 4 of schedule 1 stand as printed. Minister of State) (6.29 p.m.)—I move: Question agreed to. That these bills be now read a second time. Senator Brown—Was it agreed to be- I seek leave to have the second reading cause the opposition supported it? speeches incorporated in Hansard. The TEMPORARY CHAIRMAN—My Leave granted. understanding is that Senator Carr voted with The speeches read as follows— the government that the item stand as TAXATION LAWS AMENDMENT (BABY printed. BONUS) BILL 2002 Bill, as amended, agreed to. Since its election in March of 1996 the Coalition Bill reported with amendments; report has put in place a succession of initiatives pro- adopted. viding practical financial assistance to families. Third Reading The $2 billion Family Tax Initiative was intro- duced in January of 1997. This initiative in- Senator ABETZ (Tasmania—Special creased the tax free threshold for families with Minister of State) (6.28 p.m.)—I move: children and introduced additional benefits for That this bill be now read a third time. single income families with one child under five. Question agreed to. The increases in tax free thresholds made avail- able under the Family Tax Initiative were doubled Bill read a third time. as part of the New Tax System which commenced TAXATION LAWS AMENDMENT on 1 July 2000, providing another $2 billion an- (BABY BONUS) BILL 2002 nually of further benefits to families. As part of THERAPEUTIC GOODS AMENDMENT the New Tax System the Coalition also simplified the Family Benefits structure and improved the BILL (No. 1) 2002 incentives for families to work by easing the in- THERAPEUTIC GOODS (CHARGES) come test for Family Tax Benefit and cutting in- AMENDMENT BILL 2002 come taxes. THERAPEUTIC GOODS AMENDMENT Families with children deserve assistance with the (MEDICAL DEVICES) BILL 2002 cost of raising children. Financial assistance to families is a very direct way of supporting our TAXATION LAWS AMENDMENT BILL most important institution—the family—and in- (No. 1) 2002 vesting in our most important resource—our chil- First Reading dren. Bills received from the House of Repre- One of the largest costs that families face with the sentatives. birth of their first child is the loss of a second income. Generally speaking, a couple goes from Senator ABETZ (Tasmania—Special two incomes down to one, at the same time as Minister of State) (6.29 p.m.)—I indicate to they have the additional cost of a new baby. the Senate that those bills which have just Whilst Family Tax Benefit A and Family Tax been announced are being introduced to- Benefit B help families these benefits do not gether. After debate on the motion for the amount to the same as a second income. The arri- second reading has been adjourned, I will be val of a child generally leads to a large fluctuation moving a motion to have three of the bills in the family’s income. There are some occupa- listed separately on the Notice Paper. I tions that experience fluctuating incomes that are allowed to average their incomes for tax pur- move: poses, farmers and artists are examples. By aver- aging their incomes they reduce tax liability over the average period. They can do this by taking Wednesday, 20 March 2002 SENATE 1141 advantage of the tax free threshold in bad years This is targeted help for hundreds of thousands of which would otherwise be unused to reduce tax in families. We expect that around 245,000 mothers the good years. and their families will benefit from the Baby Bo- A mother on a salary of $30,000 in the full year nus in the first year and eventually it will deliver before the birth of a baby would pay $5,380 in tax benefits to some 600,000 families at any one on that income. If she averaged that $30,000 over time. 5 years when she was out of the workforce with a This is the implementation of a solid policy that child then her income would be $6,000 per an- only this Government has the credentials to de- num. This is the tax free threshold and she would liver. During the campaign we made a pledge to pay no tax at all. families and now we are delivering on budget, on Recognising the family that experiences a fluctu- time and in full. ating income where a mother leaves the Full details of these measures are contained in the workforce to look after a child, the Coalition an- explanatory memorandum and I commend the nounced during the recent Federal Election, that it bill. would introduce a system which effectively aver- ————— ages income over 5 years and allows a mother to claim back the tax paid on her income in the year THERAPEUTIC GOODS AMENDMENT BILL prior to the birth of the child. (No 1) 2002 The First Child Tax Refund or the Baby Bonus as I am pleased to introduce the Therapeutic Goods it became known during the election campaign Amendment Bill (No 1) 2002. and as it will now be known as a consequence of The amendments provided for in this bill are nec- this bill, will be available from 1 July 2002 and essary to strengthen the ability of the Common- will apply to the family’s first child born on or wealth to plan for, and respond to, national emer- after 1 July 2001. gencies in which there is the potential for large The maximum annual refund of $2,500 equates to numbers of people to require emergency pharma- one fifth of the tax paid on a salary of $52,666. It ceutical treatment. is estimated that some 93 per cent of partnered Examples of such emergencies would include acts women without children earn this amount or less. of bioterrorism or the emergence of a new, highly Those with a base year salary over this amount contagious disease in Australia. will still be able to claim back a refund of $2,500 Either of these circumstances may result in the but not higher. To ensure that mothers on low need for emergency pharmaceutical treatment of incomes, including those who are not in the large numbers of people to counteract the effect workforce, also benefit from the measure a mini- of such substances or diseases. mum annual payment of $500 will be available for those with taxable incomes of $25,000 or less The recent bioterrorist activities in the United in the year that they make their claim. States have highlighted the need for nations to be prepared for chemical, biological and radiological Where the mother returns to work and the father disasters. stays at home the Baby Bonus will be able to be transferred to the father. Parents returning to work The Government in its planning has placed a high on a part-time basis will still be able to receive priority on the availability of pharmaceutical the Baby Bonus with a reduction according to the treatments (antibiotics, vaccines and chemical income they earn upon returning to the antidotes) to counteract the effects of chemical workforce. For example, if a parent returns to and biological weapons. work and earns one third of the income they There are two main issues that need to be ad- earned before they had the child, the Baby Bonus dressed in relation to pharmaceuticals. will be reduced by one third. The Baby Bonus Firstly, the rarity of likely agents used in these will also be available to parents who adopt a child terrorist activities is such that some of the rec- under five years of age on or after 1 July 2001. ommended drugs for prevention and treatment are To ensure that families who already have a child not registered and therefore not readily available do not miss out, the Baby Bonus will also be in Australia. available to the first child born on or after 1 July However, in the event of a chemical, biological or 2001 for families who already have children. The radiological disaster such treatments will need to Baby Bonus can be claimed in tax returns from 1 be supplied to many casualties with minimum July 2002, or, for those who do not lodge tax re- delay. Some of the other recommended treat- turns on a separate form that will be available ments, particularly antibiotics, are marketed but from the Tax Office. 1142 SENATE Wednesday, 20 March 2002 not approved for indications associated with the The amendments in the bill will also enable the pathogens that could be used for bioterrorism. Minister to impose conditions on the exemption, Secondly, as many countries round the world face where it is necessary to do so in the national in- the same problem, we have to be able to deal with terest to counteract a potential or actual threat to the possibility of global shortages of antibiotic public health. treatments and vaccines. Examples of such conditions are requirements It is therefore important that Australia has the about where and how the goods are to be stored, capacity to stockpile the essential pharmaceutical where they are to be sourced from and the kinds agents that may be expected to meet a crisis. of records that must be kept about the goods. Australia has a very strong and efficient drug The decision by the Minister to exempt products regulation scheme, administered by the Thera- necessary to meet an emergency will be subject to peutic Goods Administration. The Australian public scrutiny through tabling in both Houses of system is acknowledged as one of the best in the the Parliament and the gazettal of the decision. world and ensures that all products are adequately As some details of an exemption may be particu- evaluated for quality, safety and efficacy before larly sensitive, restrictions on notification of all being allowed to be sold to the Australian public. details of the exemption may be necessary. It Currently there is no workable provision within would not be in the interests of public safety for the Therapeutic Goods Act by which the counter example to release details such as the location disaster personnel can receive ready approval for where specific goods are being stored. supply of unregistered products to mass casualties A number of measures are also included which in emergency situations. will strengthen the offence provisions of the leg- Late last year the Government made a number of islation to ensure that tight control is maintained amendments to the Therapeutic Goods Regula- over the importation and use of these unapproved tions that allowed for some contingency planning therapeutic goods. to take place. This ensured that Australia was ————— prepared for possible terrorist threats. These THERAPEUTIC GOODS (CHARGES) changes were intended only as an interim meas- AMENDMENT BILL 2002 ure. Currently the Therapeutic Goods (Charges) Act This bill amends the Therapeutic Goods Act to 1989 allows for annual charges to be payable in enable the Minister for Health and Ageing to respect of ‘listing’ or ‘registration’ of therapeutic make a decision, either in the case of a real emer- goods. Under the draft Therapeutic Goods gency situation, or in order to plan for the possi- Amendment (Medical Devices) Bill 2002, medi- bility of an emergency situation, to allow the im- cal devices will be ‘included’ rather than ‘listed’ portation, manufacture or supply of unapproved or ‘registered’ on the Australian Register of products which are needed to treat patients in an Therapeutic Goods. The amendments in the emergency. Therapeutic Goods (Charges) Amendment Bill The proposed amendment would allow for speci- 2002 will allow charges to be payable for medical fied essential unapproved therapeutic goods (such devices that are ‘included’ on the Australian as antibiotics, vaccines and chemical antidotes) to Register of Therapeutic Goods. be imported and supplied in Australia. The speci- I commend this bill. fied products would be those that are considered by the Minister to be essential to the protection of ————— public health. THERAPEUTIC GOODS AMENDMENT Because products cannot be fully identified at this (MEDICAL DEVICES) BILL 2002 time, and may change over time, it is not pro- I am pleased to introduce the Therapeutic Goods posed that a list be included in the legislation. Not Amendment (Medical Devices) Bill 2002. having the list of products in legislation will also This bill, and the Therapeutic Goods (Charges) enable rapid changes to be made. Amendment Bill 2001, were first introduced into However, to ensure adequate control of goods that Parliament on 29 March 2001 and passed by the may be stockpiled for such emergencies, it is in- House of Representatives on 6 August 2001. tended that only the Minister or the Secretary can However, these bills were not debated in the Sen- specify what products are to be exempted from ate before Parliament was prorogued. the usual regulatory scrutiny of goods before their Medical devices include a wide range of products supply to the general public. such as lasers, syringes, condoms, contact lenses, X-ray equipment, heart rate monitors, pacemak- Wednesday, 20 March 2002 SENATE 1143 ers, heart valves and baby incubators. Medical events and influence the development of safer and devices are health care products that generally more effective technologies. involve advice and intervention from health care Australian consumers need, and benefit from, professionals and which throughout the world are access to a wide range of medical devices, in- subject to regulation and control separate and cluding new technologies. By dollar value, ap- distinct from consumer goods. proximately 90% of medical devices used by The amendments provided for in this bill are nec- Australians are imported and the Australian essary to allow the introduction of a world lead- medical devices market is approximately 1% of ing, internationally harmonised framework for the global market. It is therefore imperative that regulation of medical devices in Australia. The Australia has a regulatory system aligned with legislation adopts the global model developed by world’s best practice that ensures a high degree of the Global Harmonisation Task Force, comprising medical device safety, performance and quality the regulators of Europe, the USA, Canada, Japan and also allows timely access to new devices. and Australia. The amendments will allow better The new internationally harmonised regulatory protection of public health while also facilitating requirements will facilitate the operation of the access to new technologies. Australia–European Union Mutual Recognition The amendments will benefit consumers through Agreement (MRA) by avoiding unnecessary or a comprehensive risk management and risk as- unique regulation which make Australian access sessment system. Medical devices will be classi- to international markets less competitive. fied on the degree of risk involved in their use. Applications for entry on the Australian Register The new system will appropriately identify and of Therapeutic Goods will be streamlined using a manage any risks associated with new and new electronic lodgement process. Low risk de- emerging technologies. vices will be notified to the Therapeutic Goods Medical device safety will be improved under the Administration enabling sponsors to market these new framework. All devices will have to meet products without undue delay. substantive requirements for quality, safety and Transitional arrangements for the new system performance for the protection of patients and allow five years for products currently on the users. The technical expression of these require- Register to meet the new requirements and a two ments is ensured by international standards. year transition period for some new products not Manufacturers of all medical devices will need to meeting manufacturing standards. meet quality management systems requirements. Under the current system only 50% of manufac- There has been extensive consultation on the pro- turers are required to meet these requirements. posal since 1998 with consumers, the medical devices industry, professional groups and the Given the sensitivity of certain high-risk devices, States and Territories. There is strong support for this new legislation provides for these devices to the proposed new regulatory reforms amongst all be fully assessed by the TGA before they are these groups. marketed in Australia. This would exclude such devices from the scope of any mutual recognition There is a provision in this bill to facilitate track- agreement Australia may have with other coun- ing of implantable devices. This will support the tries. The Government considers this to be a par- work being undertaken by the Council for Safety ticularly important provision given the risks asso- and Quality in Health Care, which has been ciated with these particular devices. tasked by the State and Federal Health Ministers, to examine a system to track patients with im- The scope of lower risk medical devices included planted medical devices. The Government is in the Australian Register of Therapeutic Goods awaiting the recommendations of this Council. will also increase, allowing for a more effective post-market monitoring system that will ensure In summary, the introduction of an internationally consumers continue to be protected from unsafe harmonised medical device regulatory system for products. Australia will ensure better protection of public health while facilitating access to new technolo- There will also be an increased emphasis on post- gies. market activities, with the requirement for manu- facturers and sponsors to report adverse events This bill is being introduced in conjunction with involving their medical devices to the TGA within the Therapeutic Goods (Charges) Amendment specified timeframes. Australia’s involvement in Bill 2002. an international post-market vigilance system I commend this bill. should reduce the likelihood of repeated adverse ————— 1144 SENATE Wednesday, 20 March 2002

TAXATION LAWS AMENDMENT BILL (No. BUSINESS 1) 2002 Rearrangement The plantation forestry industry plays a vital role in the Government’s National Forest Policy. The Senator VANSTONE (South Australia— policy supports the expansion of Australia’s Minister for Family and Community Serv- commercial softwood and hardwood plantations ices and Minister Assisting the Prime Min- to provide an economical, reliable and high qual- ister for the Status of Women) (7.30 p.m.)—I ity wood resource for industry. The Policy is an move: important strategy for the ecologically sustainable That intervening business be postponed till af- development of Australian forests. ter consideration of government business order of This bill includes a measure to stimulate invest- the day no. 3 (Disability Services Amendment ment in plantation forestry managed agreements, (Improved Quality Assurance) Bill 2002) and the by providing an immediate tax deduction for spe- order of the day relating to the Migration Legis- cific prepaid expenditure invested in one of these lation Amendment (Transitional Movement) Bill agreements. It will apply to the component of the 2002. investment that relates to seasonally dependent Question agreed to. agronomic activities occurring during the estab- lishment period. The prepaid activities will have DISABILITY SERVICES AMENDMENT to be completed within twelve months of the ac- (IMPROVED QUALITY ASSURANCE) tivity commencing and by the end of the follow- BILL 2002 ing income year. At the same time, managers of Second Reading these investments will have to include the pre- payments in assessable income in the year in Debate resumed from 19 March, on mo- which the investors can claim the deductions, tion by Senator Ian Campbell: rather than when the work is done. That this bill be now read a second time. Without this stimulation, there is concern that Senator VANSTONE (South Australia— plantation targets for the sustainable development Minister for Family and Community Serv- of Australia’s forests would not be met. ices and Minister Assisting the Prime Min- The bill also includes an amendment to the non- ister for the Status of Women) (7.30 p.m.)—I commercial losses rules, to remove an unintended want to commence the summary by thanking limitation on the Commissioner of Taxation’s all the contributors to this debate and to point discretion under the rules. The amendment will allow the Commissioner’s discretion to be exer- out that I firmly believe this is a very firm cised in all the relevant years where this is con- statement of the government’s commitment sistent with the nature of the business activity, to ensuring quality services for people with regardless of whether a profit is made or one of disabilities. We are very pleased to receive the tests has been met on a one-off basis during support from the Labor Party and the Demo- that time. This has particular relevance for the crats for this Disability Services Amendment plantation forestry industry, where normal prac- (Improved Quality Assurance) Bill 2002. I tices such as thinning may produce a one-off am sure someone can beat it in terms of the profit or passing of a test. time period it has had for extensive consul- I commend this bill. tation, but it must be in there as one of the Debate (on motion by Senator Carr) ad- most consulted on bills that I have been in- journed. volved with. Ordered that the Therapeutic Goods The bill provides time for services to ad- Amendment (Medical Devices) Bill 2002 dress what deficiencies they might have at and the Therapeutic Goods Amendment the moment. From January 2005, if it is not a (Charges) Amendment Bill 2002 bills be quality service it will not be funded. That listed on the Notice Paper as one order of the might seem a long way away, but we are in day and the remaining bills be listed as sepa- 2002. These services do need time to adjust. rate orders of the day. The important thing is that we have all come Sitting suspended from 6.30 p.m. to to some agreement about how to move to- 7.30 p.m. wards that and at that time we will be able to say that if it is a Commonwealth funded Wednesday, 20 March 2002 SENATE 1145 service they can rely on quality being deliv- with disabilities as opposed to the employ- ered to people with a disability. ment services that we are really talking about Question agreed to. here. Bill read a second time. In terms of accommodation, under what we have now agreed to call the Common- In Committee wealth, state and territories disability bill, the Bill—by leave—taken as a whole. Commonwealth takes responsibility for em- Senator MURRAY (Western Australia) ployment services and the state for accom- (7.33 p.m.)—Rather than call attention to the modation services. Even though the Com- state of the house, I advise you that I am monwealth makes a contribution to the ac- waiting for Senator Allison to turn up. She commodation services, it is very clear in the thought another bill was coming up first. bill that accommodation services are the state The TEMPORARY CHAIRMAN problem, and we make a contribution. Since (Senator Knowles)—You just wish to make you have started me on this point, I will just some very valuable comments on this bill, take a minute. I have not been terribly happy Senator? with the state minister from your state, who has occasionally chosen to say, ‘Well, the Senator MURRAY—Well, perhaps I can. Commonwealth won’t outline what it will do If I can make some general comments to the in the new agreement. The Commonwealth is minister, I must say the nature of disability only putting in’—and then nominates what- needs in my own state was recently drawn ever the specific amount is for Western Aus- attention to by several protests, which the tralia that we put into accommodation. chair would probably be aware of, which relate to the lack of accommodation in that What she fails to do—and I believe in this area for people with disabilities. When peo- sense she misleads the Western Australian ple with disabilities resort to being on the public—is to say, ‘Oh, and by the way the corners of streets signalling at motorists go- Commonwealth does not have the major re- ing by and so on, it is an unusual occurrence. sponsibility for accommodation; they have it In those circumstances I think that they are for employment services,’ and mention how drawing attention to a genuine and very dif- much we spend there. Nor does she mention ficult need which has not yet been properly how much we spend in all the other things satisfied. Perhaps, Minister, whilst we are in we do for disability affected Australians— the general section of this debate, you might for example the income support payments wish to indicate to us what particular assis- that we make and some other services that tance is being developed by the government are not directly involved with the Common- with regard to the need for accommodation wealth-state disability agreement. I think it is for those with disabilities. very misleading to take the amount of money that we put into accommodation, which is Senator VANSTONE (South Australia— really a contribution to a state responsibility, Minister for Family and Community Serv- and then complain we are not doing enough. ices and Minister Assisting the Prime Min- ister for the Status of Women) (7.34 p.m.)—I We have done a substantial amount of new would be happy to try and get some infor- and interesting things for people with dis- mation for you on that. I do not have it with abilities, or we are about to do them. They me at the moment, and I certainly cannot were outlined in the last budget in Austra- invent it in the time period that it takes for lians Working Together. If you want some Senator Allison to get here. I am sorry, I was more information on accommodation for talking to Senator Minchin, who is about to people with disabilities in the west, the first be the duty minister, and said he might as port of call would of course be the state well go if there is going to be a debate on minister, but my department would have this, because I will be here. But, if I heard some information about the services that we correctly, the latter part of your question is a know get SAAP funding for example, and if reflection of what you said earlier: you are you want some of that information just inti- concerned with accommodation for people 1146 SENATE Wednesday, 20 March 2002 mate to me before I leave the chamber and debacle. It has been one mess after another. we will get a brief together for you. But here we are tonight attempting to patch Bill agreed to. up problems that have arisen from the gov- ernment’s approach to the legislation it initi- Bill reported without amendment; report ated last year. adopted. We have asylum seekers under the so- Third Reading called Pacific solution on Manus Island and Senator VANSTONE (South Australia— on Nauru. They fall, for legal purposes, into Minister for Family and Community Serv- two classes: those who are referred to under ices and Minister Assisting the Prime Min- current legislation as offshore entry persons ister for the Status of Women) (7.38 p.m.)—I and those who are not covered by the pa- move: rameters of that definition. What is the dif- That this bill be now read a third time. ference? An offshore entry person is a person Question agreed to. who touched Ashmore Reef or Christmas Island after they were excised from the mi- Bill read a third time. gration zone. For that category of person, the MIGRATION LEGISLATION current legislation provides that if they were AMENDMENT (TRANSITIONAL brought to Australia for any purpose— MOVEMENT) BILL 2002 whether it be a medical evacuation, whether Second Reading it be because they were required to give Debate resumed. evidence in people-smuggling trials or whether it be for any other purpose—they Senator SHERRY (Tasmania) (7.38 would be barred from making an onshore p.m.)—This evening the Senate is consider- Australian protection claim. ing the Migration Legislation Amendment (Transitional Movement) Bill 2002. This Then there is another set of asylum seek- legislation could be summed up as legisla- ers, and they are persons who are intercepted tion that is required to patch up legislation at sea. These are persons who never touched that the government initiated last year. It has Ashmore Reef or Christmas Island. The most been very apparent since the election that the celebrated of those in the media are the per- government’s plasterboard, if you like, has sons who were on the Tampa. But there have developed a number of serious cracks on a been a number of other at-sea intercepts, and number of serious issues. In particular, in the the basic reason we have this bill is that area of issues relating to migration it is well when the government drafted and brought known that the so-called ‘children over- before the parliament late last year its pack- board’ affair where we know that no children age of legislation in relation to asylum seek- ever went overboard—the truth very quickly ers it forgot to deal with this first class of went overboard but certainly no children person—the class of person who was inter- ever went overboard during that affair—we cepted at sea, the class of person who does have had— not fall within the definition of being an off- shore entry and, consequently, the class of Senator McGauran—The boat sank. person who, if they were brought to Austra- Senator SHERRY—Senator McGauran, lia, would be unable to make an onshore do you really want to maintain the fiction protection claim. after we have seen doctored photographs and So the legislation we are dealing with is a false reports? I certainly hope you have the bandaid solution to the so-called Pacific so- same hope I have to be out of here by Friday. lution. The government would not have re- To progress further with the cracks that have quired this patch or bandaid if they had dealt developed in the government’s plasterboard, with the matter appropriately in the first in- we have had the problems with the Treas- stance, and they failed to do so. Why did urer’s management of the currency swap they fail to do so? We all know—and the deals—a potential $5 billion loss—the Labor Party has consistently said—that the Wooldridge health fiasco and the Heffernan so-called Pacific solution was more about Wednesday, 20 March 2002 SENATE 1147 getting a solution to re-elect the government foot in Australia.’ It may have contributed to of the day as part of their election strategy and worked for your re-election, but this bill and for however long they could sustain it directly contradicts the Prime Minister’s beyond election day. It was not very long. never, ever promise in what it represents. Rather than being a comprehensive long- The government engaged in the so-called term solution to the issue of asylum seekers, Pacific solution because it was going to be it was conceived and implemented in haste. tough on the question of who came to Aus- Its primary purpose was for electoral advan- tralia and it was going to keep all of these tage rather than being an appropriate and asylum seekers off Australian soil and put proper public policy instrument in dealing them on Manus Island and Nauru. We do with the question of asylum seekers, and this know from the time of the Tampa—and let is now very clearly starting to show. us remember that this legislation applies di- We saw a number of announcements—I rectly to people who were on the Tampa— think it was two—approximately two weeks that the Prime Minister was very clear about ago that further demonstrate the unravelling this question. Let me refer at this point to a of the so-called Pacific solution. The first of story that was carried in the Weekend Aus- these related to the government announce- tralian around the time of the Tampa crisis. It ment to construct a 1,200-person detention was headed ‘PM weighs his anger in stormy facility on Christmas Island. I put the simple seas’, using what I think from looking at proposition to the Senate that, if the so-called these headlines was a mixed metaphor. But, Pacific solution is working, if the so-called in any event, the first two paragraphs of this Pacific solution is deterring further arrivals, article say: why would the Australian government be John Howard— building a 1,200-person detention facility, that is the newspaper’s reference— unless the government has simply taken strode into the Australian’s Parliament House leave of its senses and decided to start con- office late on Wednesday night bristling with structing buildings which will be perpetually nervous energy. “That boat will never land in our empty? One would have to assume that it is waters, never!” he emphatically told a small engaging in this construction project because group of reporters. it expects further arrivals. So the so-called Aside from the fact that I do not think a boat Pacific solution, on the government’s own can land in waters, it went on: announced plans, is not working. It is not The politician whose career is a testament to his deterring further arrivals, and the govern- stubbornness, appeared to be operating on pure ment is making provision for significant adrenaline at the end of one of the most dramatic numbers of further arrivals. days of his Prime Ministership. Howard’s eyes Then we have this legislation which bulged; his face reddened and he shifted restlessly makes very clear another part of the unravel- as he spoke. ling of the so-called Pacific solution. The All of us I think would be quite grateful we public imagery that the government has al- were not witnessing this incident. I think ways used in relation to the Pacific solution another senator in this place might have wit- is that the asylum seekers would never, nessed something approaching this earlier in ever—a promise made over and over again the week. We can only pity the group of re- by the Prime Minister; those ‘never, ever’ porters that was subject to this display. This words still run through my memory in re- was the imagery: ‘We will keep these people spect to another matter—under any circum- from Australia!’ It was reminiscent of a stances set foot on Australian soil. That is British Prime Minister: ‘We shall fight them what the government has always claimed. on the beaches, we shall fight in the hills’. Indeed, I remember going to polling booths The Prime Minister was so excited about it during the election campaign—Senator that his face reddened and his eyes bulged. McGauran has got a wry smile—and seeing He was always going to keep these people grand banners with the Prime Minister’s pro- away from Australia. Not only did he make nouncement, ‘We will determine who sets this statement to the Australian but he was 1148 SENATE Wednesday, 20 March 2002 asked by radio presenter Neil Mitchell on night and were outlined by my colleague our 3AW: shadow minister for migration, Ms Gillard, Is there any circumstance under which you would in the other place who, I might say, is doing a allow them to land in Australia? great job in that capacity. I would like to ad- The Prime Minister responded: dress some of those concerns in detail. The Labor Party understands that people who are Our position is they should not be allowed to land currently held on Nauru or on Manus Island in Australia. and who fall into the category of not being And it went on and on with various language covered by the current legislation—that is, being used, including ‘never, ever’. Were that they were intercepted at sea and that these people going to be allowed to arrive in currently, if brought to Australia, they could Australia? Under no circumstances. As I al- make onshore protection claims—might luded to earlier, when the Prime Minister from time to time require to be medically makes a promise, with those famous words evacuated to Australia. ‘never, ever’, we know what the most likely outcome is. As the Australian people know, As we understand it, that has happened on there is generally a complete reversal, and at least one occasion from Nauru. On that that is what is happening in this case. occasion, the government engaged in a bit of a fiction, frankly, by giving that person a We know from this legislation before the special entry permit that was timed to expire Senate, and as discussed before the House, at midnight on the day they arrived. They that true to form, when the Prime Minister is entered Australia lawfully so that the de- out there saying over his dead body will partment could not be accused of people- asylum seekers off the Tampa gain access to smuggling, but once the clock struck mid- Australian soil, more likely than not the night they were in Australia unlawfully so complete reversal is about to happen—albeit that they could not make an onshore protec- of course after the election, not before the tion claim. Presumably there were some far- election. This bill tells us that the govern- cical arrangements about keeping the asylum ment wants legislative authority to allow this seeker in question incommunicado for the complete reversal to occur. This bill is legis- period up to midnight so that they could not lative authority for the government to bring make an onshore protection claim. Presuma- the Tampa asylum seekers and other asylum bly they were given their anaesthetic as they seekers who are intercepted at sea—you got off the plane—even if it might have been guessed it—onshore, where we were told four or five hours until their treatment—so they were never, ever going to be. they could not sign a claim form between As I indicated earlier, the government then and midnight. This is the sort of— could have dealt with these matters last year. Senator Hutchins—Maybe Julian spoke If they are going to deal with these matters to them for two hours. now, they should make it perfectly clear that they are doing this, because they are intend- Senator SHERRY—In the interests of ing to breach the promises they made to the pressing on, we will ignore that remark, but I Australian community that these asylum do want it recorded in Hansard. To move on, seekers would never come to Australia. Of one can only speculate about what would course, the Australian people are capable of have happened if the plane had been delayed weighing the worth of the word of the Prime and landed after midnight and the Depart- Minister, Mr Howard, who gave assurances ment of Immigration and Multicultural and in respect to these matters. Indigenous Affairs itself had been responsi- ble for bringing someone into Australia un- I now come to the Labor Party’s position lawfully. That could well have happened. It on the bill, and in stating my concerns about could have happened if they had been on an the legislation I have regard to an amend- Ansett flight, I suppose. We know, of course, ment I understand will be moved by the gov- that medical evacuations have occurred un- ernment that does take into account at least a der these circumstances. part of the concerns that I outline here to- Wednesday, 20 March 2002 SENATE 1149

In relation to this piece of legislation, La- way in which the government occasionally bor accepts that there is nothing about the tries to characterise us as not understanding circumstances of being involved in a medical and not being prepared to implement such a evacuation that ought to affect the substance policy is really all about electoral misrepre- of someone’s legal rights. We understand sentation and little about the truth. We accept that the legislation is, therefore, required to that people who do not pass the test of being prevent someone who is medically evacuated genuine refugees need to be removed. In to Australia from making an onshore claim. some circumstances removals happen We take the same view about persons who quickly, and in some circumstances they are might be brought to Australia to give evi- very difficult. dence during people-smuggling trials. There In the positive suggestions made by my is nothing about the circumstances of being colleague Ms Gillard in the other place, we required to be a witness in a trial of any na- are saying that if such persons who are not ture that ought to change the legal position of genuine refugees are brought back to Aus- an asylum seeker in relation to making an tralia and held in Australian centres pending onshore protection claim. removal and if the government is for some Labor accepts that, when processing is reason unable to affect that removal within fully completed on Nauru and on Manus Is- six months, despite the asylum seekers coop- land, there will be a number of people who erating with the process—so we are not in will be found to be genuine refugees and that the business of saying anyone should be re- some of those genuine refugees will be found warded for non-cooperation—those persons long-term homes in third countries—that is, should be able to have their claims assessed there will be other nations on the planet who by the Refugee Review Tribunal. We want to will step forward and say that they are pre- be absolutely clear about this: we do not pared to accept and look after those genuine want the clock started again on processing. refugees in the long term. Labor accepts that Processing of these asylum seekers has hap- those persons may need to be transited pened in Nauru and in PNG. Some of that through Australia on their way to their long- processing may have been done by the term homes—in fact, it may only be possible UNHCR and some may have been done by to transit them through Australia, given the the immigration department. We are not fairly isolated nature of Nauru and their asking for that processing to be done again; economy and the airline that is staggering rather we are asking that, where the govern- through the sky at the present time. Labor ment has not been able to remove them, the accepts that they ought not to be able to limited numbers of asylum seekers who are make an onshore protection claim during that in that situation complete the processing they transit. That would be absurd. We understand would have been entitled to had they come to the 1951 Convention Relating to the Status Australia at the outset—that is, they go to the of Refugees is not about asylum seekers fo- Refugee Review Tribunal. rum shopping about which developed nation I come to the second and very important they would like to go to as they go through positive suggestion made in my colleague’s departure lounges. If they have a place where speech in the second reading debate in the they are going to be safe and secure, they other place. It is a very important and posi- ought not to be able to make an onshore tive initiative. We all know that many of the claim in transit to that place. asylum seekers presently in Australia, on Then we come to the category of persons Manus Island and on Nauru come from Af- who are found not to be genuine refugees. ghanistan. Why did they come? Some came Labor understands about that and always has. because they were fleeing the Taliban; some In government, Labor implemented a system came because they were fleeing other whereby such persons were removed from sources of persecution; many came because Australia, either to their country of origin or the nation was unstable. We know that Af- to a third country in which they had a right to ghanistan has been involved in a war, and live. Labor has always understood that. The still is. It is a war against terrorism, in which 1150 SENATE Wednesday, 20 March 2002 we have fielded troops. We know that Af- nately, despite all the outrage at the time and ghanistan is the most mined nation on earth. despite the quite strong post-election criti- We know that the new government is strug- cism of the Labor Party for rolling over and gling to stabilise the nation, and we know accepting the whole package of the govern- that there are major infrastructure problems ment’s legislation and the government’s and major problems with food, with shelter whole policy on legislation, we see again and with meeting people’s medical needs. today in just the third sitting week of a new For persons from Afghanistan currently in government the Labor Party doing it again Australia, there will be a time when most of and accepting the government’s legislation. them can go home. Some of them will be There are a couple of amendments the found to be genuine refugees because they government have circulated that have just were persecuted for reasons other than the appeared in the last few minutes. I have had Taliban regime. I am not speaking about that some warning of those because of the at- class of person; I am speaking about the peo- tempts by the office of the Minister for Im- ple who, although they have been found not migration and Multicultural and Indigenous to be genuine refugees, cannot return home Affairs to be cooperative. Probably the only in the short term because of the situation in positive thing I will say about this bill is that Afghanistan but will be able to return home the minister’s staff and department staff are at some point. I am sure that all of us in the always as helpful as they can be in assisting Senate hope that point comes soon and that and providing briefings and explanations. Afghanistan stabilises quickly, within six to But the fact is that the wording of this 12 months, so that the people who are there amendment was settled on only earlier today and the people who return can rebuild their and its circulation occurred only a few min- lives in safety and in peace. (Time expired) utes ago. The general public and those with Senator BARTLETT (Queensland) (7.58 expertise out of community obviously have p.m.)—I rise to speak on behalf of the Aus- no knowledge of what the amendment is, tralian Democrats to the Migration Legisla- what it contains and what its consequences tion Amendment (Transitional Movement) might be. Whilst there are some learned Bill 2002. It is a fairly small bill but a very minds in the Senate, I think it would be say- significant bill. I think it is one that requires ing a bit much for us all to assume we are the appropriate scrutiny because it puts in place ultimate experts on issues like this. Obvi- yet another new and, in my view, unprece- ously we are charged with making the final dented approach to dealing with people and decision, but to make decisions like that their potential for claiming protection and without the opportunity to consult with those seeking asylum under the Refugee Conven- who have expertise is a very dangerous tion. practice and a very poor practice. Unfortu- The public would be well aware, and the nately it is a practice this government is quite Senate would remember, the shameful day happy to perpetrate. last year when six bills were guillotined In some ways I can perhaps partly under- through this place. A couple of them had stand the rationale behind the Labor Party’s been introduced just the previous week with willingness to accept this bill. I cannot un- dramatic new powers, a dramatic removal of derstand why they are willing to allow it to rights for a whole range of people, including be rushed through so quickly without proper Australians, and a complete inability for the scrutiny. It is hard not to come to the conclu- Senate to be able to scrutinise the conse- sion that the Labor Party are hoping to avoid quences of that package of legislation. In- scrutiny about their actions here. They do not deed, the Senate even now has not had much want another gap of five or six weeks where opportunity to scrutinise the consequences of the public can actually be aware of what is those changes or the way the so-called Pa- being done, and they would have pressure cific solution and the various other aspects of and internal tensions and divisions occurring this government’s handling of asylum and if this matter were not flipped through with- refugee matters is being conducted. Unfortu- out any people being aware of it. It is hard to Wednesday, 20 March 2002 SENATE 1151 think of any other motivation for the Labor to really provide much in the way of answers Party’s decision to allow this bill to be to direct questions in the committee stage, rushed through in such a disgracefully particularly if they feel it is just a deliberate speedy manner. filibustering process. I hope the government For those who were not listening earlier can recognise, by the fact we have only one today, this bill was introduced only a week Democrat speaker in the second reading de- ago in the House of Representatives. There bate, that if we do ask extensive questions it was no foreshadowing by the government or is not because it is a filibuster but because the minister that any move along these lines there are important questions we need to get was being considered. Two other bills came answers to on the record—answers on the in at the same time. The government was record not just for the satisfaction or the in- quite happy to send those two bills to a Sen- tellectual curiosity of the Democrats but for ate committee for extensive consideration the assistance of the many people in Austra- with a report back in May. But this one, lia who are concerned about these issues and which is probably the most far-reaching, is the many people in Australia who work tire- basically being railroaded through. Attempts lessly to assist asylum seekers. There is still by the Democrats to get a meaningful Senate a lot of uncertainty and confusion in the gen- inquiry were stymied. Instead, we are having eral community about how the new migra- to debate this in the chamber without any tion act and rules operate in practice and opportunity for proper broad input and scru- what they are going to mean. There is still tiny. confusion about what the future holds for the people on Manus Island and Nauru. This bill I should emphasise that, as always, the obviously links very much to that uncer- Democrats will attempt to be cooperative. tainty. It will not remove uncertainty, but it But there are significant issues raised by this will give the government even more flexibil- legislation, as well as the package of legisla- ity to do whatever it wants with those people, tion last year that this relates to. We have not with their having no rights at all. had the opportunity to get information and answers to questions on the record. Certainly I want to examine more specifically what the Democrats will be using the committee is contained in this bill. I will not talk to the stage of this debate to explore some of those government amendments yet, because they issues and some of the very significant are not part of the bill, but I will talk to those precedents occurring as a consequence of in the committee stage. I will say that the this legislation. amendments are very significant. I know that they have been sorted out in consultation The government should note before they with the ALP and, to some extent, that con- try to suggest there is any attempt by the sultation has been communicated to the Democrats to filibuster or frustrate the gov- Democrats. I acknowledge that. The amend- ernment’s program that we have not stacked ments basically create a new area of activity the speakers list. I am the only Democrat for the Refugee Review Tribunal—that is a speaker on this bill. If we were simply pretty significant thing to do—and another wanting to hold this off and try to talk it out power for the secretary to the department; and force it to be not considered until May, that is, the power to eliminate a person’s then we would be stacking the speakers list rights without any opportunity for appeal in a with all of my colleagues. We have not done whole new area of activity. I will be explor- that, and I mention that to the government, ing those amendments later. although the relevant minister who should be here when the committee stage comes on is We have had a farcical time frame for this not at the moment. Perhaps his advisers can legislation. We have had one week from pass on to him my comment of good faith. It when it first appeared—one week with the is a demonstration of good faith and I hope initial bill and we have had five minutes with the minister will respond by actually giving these amendments. We have not had the answers to the questions we ask in the com- whole bill for even a week. So to suggest that mittee stage. Many times ministers tend not there could have been any meaningful com- 1152 SENATE Wednesday, 20 March 2002 mittee inquiry into this bill, with a one-day position and others. It is not a retreat from hearing last Friday, is a joke. We would not the Pacific solution; it is locking in the intent even have been inquiring into the final bill. of it, which was to remove asylum seekers We would have had a significant new sec- from the processes that have been built up tion, as represented by these amendments, over years of proper assessment of asylum that the committee would not have been able claims. All of these people will now be re- to inquire into. It would not have even been moved from those processes. They will be in aware they were being contemplated. That Australia but they will not be able to engage again highlights the flaw in this process. I in our protection obligations. That is a very know the government does not care about serious degradation, in the Democrats’ view. that, but I am concerned that the ALP is ap- It may be that there is a short-term benefit parently willing to allow that to go unchal- for some people who are on Nauru and Ma- lenged. It is about appropriate processes in nus Island. Transitory persons will still be the chamber and treating the parliament with under detention when they are brought into some measure of respect, not with such a Australia. Technically they are not in deten- level of contempt. When this sort of thing tion on Nauru and Manus Island, they are in happens, it does make it very difficult to be a processing centre, but when they are cooperative on other issues. brought to Australia they will be in deten- The bill creates yet another category of tion. There is possibly an argument that it is person. There have been many new catego- better to be detained at Port Hedland than on ries—new visa categories, new criteria, new Manus Island. I do not know, because I have definitions of people, and new boxes that not been to Manus Island. I have been to Port people get slotted into—created in the last Hedland, Villawood, Woomera and the like, few years but particularly in the last six but I have not been to Manus Island or months. Under this bill we will now have a Nauru, so I do not know what the conditions new category under the Migration Act of a are like there. There is possibly an argument transitory person. In shorthand, a transitory that, if you are going to be detained without person is someone who has been intercepted any rights whatsoever, you may as well be at sea and taken to one of the offshore entry detained somewhere in Australia where you places—Manus Island, Nauru or any of the might be able to get a visitor or two rather places that have been excised from the mi- than being detained in Nauru. The Demo- gration zone. Basically it is anybody who got crats do not think that is sufficient reason for to Christmas Island or Cocos (Keeling) Is- allowing such a dramatic removal of legal lands or who got intercepted at sea and taken rights from a whole class of people—and it is to one of the other places. The reason why not just the people who are on Nauru now. this category is being created is to allow When you look at legislation you have to people who are defined as transitory persons look at how it could be used, not just at how to enter mainland Australia but not to have the government says it is going to be used. access to any rights. Basically, it will mean The minister might say, ‘We need this in case that, even if they get into Australia, they are someone gets sick and we have to bring them not in Australia for the purposes of the Mi- to Australia to get hospital treatment,’ but the gration Act. In effect, this extends the exci- fact is that that has already happened with sion zone by another means. So we no longer one or two people and, as I understand it, the excise Christmas Island or Cocos (Keeling) sky did not fall in. I do not think the so- Islands. For these so-called transitory people, called integrity of our immigration system we would excise all of Australia. Australia was compromised as a consequence. I do not will no longer be in the migration zone for think that is sufficient reason for a massive the purposes of this category of transitory precedent like this. I do not think you can people. That is the effect of it. rely on what the government says it needs This is actually a massive expansion; it is this for. You have to look at what this legis- not a retreat, in the view of the Democrats, as lation empowers it to do should it choose to has been suggested by the Leader of the Op- use it or what it empowers a future govern- ment to do. If you look at the history of Wednesday, 20 March 2002 SENATE 1153 amendments to the Migration Act over many Australian law in terms of their rights. It is years, it is very rare when extra powers are not just a retreat by this government, an ac- given to a government or when legal rights knowledgment that the Pacific solution has are removed from individuals for those failed; in a sense, it is a victory for this gov- changes to be wound back. So, once we put ernment because it will mean that it will not this in place, it will be pretty hard to wind it need to intercept people and send them to back again. This bill does not wind back Nauru to deprive them of their rights. The what was done last year; it extends it. government can have them in Australia and Transitory persons might be, in the short deprive them of their rights. It will be much term, people who are in Nauru. In the longer cheaper, which is one positive thing, I sup- term, they could be anybody who is inter- pose, but they are still people with no rights cepted and put on Christmas Island for a day. whatsoever. That is how I understand it, and I will try to It is worth noting that—and this was an confirm that with the minister during the amendment made in the House of Represen- debate. Coincidentally or not, we are pro- tatives; I guess it is a positive one—the tran- posing to build a new detention centre on sitory person category does not apply to peo- Christmas Island. People could be taken ple who have been assessed to be a refugee there for as short a time as desired and then for the purposes of the Refugee Convention. moved on to Australia, but they will not be It will apply only to people who have had able to access Australia’s protection regimes their initial claim for asylum rejected by or engage Australia’s protection obligations. whoever makes that assessment. Currently That will be in place permanently. There is a for the people on Nauru, apart from the ini- bar on transitory persons undertaking certain tial people from the Tampa, that assessment legal proceedings. You do not get much more is being made by Australian departmental precise than that. Transitory persons will not officials, but it excludes those people from have access to these legal rights. They will having any right to appeal, and currently they not be able to undertake any proceedings have no access to legal advice or assistance against the Commonwealth in any court as to either. So they could get through that flawed their status as a transitory person or regard- process, be brought to Australia for any rea- ing their transfer to Australia. son and still be subject to this flawed process Section 198B of the bill creates a power where they have no rights. It is a significant for a Commonwealth officer to bring a tran- advance in many ways from what the gov- sitory person to Australia. It includes the ernment managed to do by ramming legisla- power to place the person on a vessel or ve- tion through the Senate last year with the hicle, restrain the person, remove the person support of the Labor Party. It is a matter of or use such force as is necessary and reason- great disappointment to the Democrats that able. Those actions cannot be challenged in again this is able to be done by this govern- any way. That Commonwealth officer has ment with the support of the Labor Party. absolute power. No-one has any legal redress At the minimum, we should have had a bit in terms of how they use that force and how of time to look at this. Last year we had the they use that power. travesty where a bill was forced to be de- Apart from preventing any legal proce- bated in this chamber while it was still before dures occurring at all in relation to transitory a Senate committee that had not even started persons, section 498AB(2) has effect despite looking at it. This time around we have not anything else in this act or in any other law. even been able to get it to a committee. It is This overrides every other law in the Com- that level of cynicism that is behind this ap- monwealth except the Constitution. Antidis- proach on refugee law. It is a great tragedy crimination law, human rights law, any law is that it always seems to be the refugees and overridden by this bill in relation to transi- asylum seekers, who are already among the tory persons. They are basically put outside most powerless, who so often are the victims the law while they are inside Australia—out- of railroaded legislation. Sadly, this is not side the Migration Act, outside any other unusual. The action before the election might 1154 SENATE Wednesday, 20 March 2002 have been the worst example, but it has not Australia has set up a system to look after been the only example. When bills eliminat- those people who come here in an authorised ing rights appear, they tend to relate to mi- manner, perhaps on a visitors visa. When gration or refugee matters. (Time expired) they get here they make a claim for refugee Senator COONEY (Victoria) (8.18 status and are processed. I might also say p.m.)—The Migration Legislation Amend- that while they are being processed they are ment (Transitional Movement) Bill 2002 is a not held in detention. Others come here in an further piece of law in a field which is tor- unauthorised fashion but they do not come tured by a war between concepts and facts here in a criminal fashion. The reason they which has its origins in legislation. I say that do not come here in a criminal fashion is that because I see some people here from the De- it would be in contravention of the conven- partment of Immigration and Multicultural tion to make their actions a criminal offence. and Indigenous Affairs for whom I have the They are treated differently. highest admiration. I often think that the de- We have established a system which we partment is much criticised for problems really do not want people to use. If they enter which are created by legislators, and it is Australia’s waters, they can make an appli- only fair that I should say that. If I explain cation. So, to stop them from getting them- what I mean by that, perhaps it will be selves in a position where they can apply, we clearer to those who are listening. have a very tortuous system to keep them Australia, as has been said again and again from entering Australia. If they are refugees, in these debates, is a signatory to the Con- we have knowingly and freely undertaken to vention Relating to the Status of Refugees keep them here. It is the law itself which cre- and to a protocol which extended the cover ates a situation which we who have brought of that convention throughout the world. In this law into operation want to avoid. So we 1951, when the convention was made, it ap- create the situation, we sign the convention, plied only to Europe. Australia has freely we ratify the convention and we bring the signed that convention and the protocol with convention into domestic law, but we really full knowledge of what it meant. The effect do not want to have it operate—except, I of it has been brought into domestic law. suppose, in respect of people who come here Australia could free itself of the effects of by plane on a visitors visa and who have pa- that convention by giving 12 months notice pers when they get here. to the United Nations. It has chosen not to do I do not think we object to that, but we do that. Therefore, it has chosen to have a re- object to those people who come here in a gime operating in Australia where people way that you might well imagine refugees who are within its borders claim refugee would. So, to stop them coming here to ap- status and, if it is established that they are ply under our law, we create all sorts of refugees, then the regime says that Australia problems. We try to keep them out. We turn cannot return them to the place where they them away from our waters, we declare cer- were persecuted. This is a circumstance, a tain parts of Australia not to be parts of Aus- regime, a system set up by legislation to en- tralia for this purpose and we send them off able Australia to carry out its duties under to Pacific islands—and we do that in the heat the convention which it signed freely and of an election campaign. This proved to be a with full knowledge. very effective strategy because, as a result of In reality, the convention applies only to what was done, impetus was given to the those people who are in Australia when they government’s election campaign and it make their application for refugee status. played a very significant part in the govern- Australia has a very good system of bringing ment’s return to office. But, having sent them to Australia those refugees who make their off to Pacific islands in the heat of the elec- application overseas, are processed overseas tion campaign, the situation now arises and are declared to be refugees. When you where the reality of them being on those is- think about it, the convention does not really lands means that they have to be brought to apply to their situation. Wednesday, 20 March 2002 SENATE 1155

Australia for particular purposes—and so If the Secretary is satisfied that a transitory this legislation is brought in. person has engaged in uncooperative conduct, either before or after the person was brought to Tonight criticism has been made of the Australia, then the Secretary may issue a certifi- Labor Party’s stance. But in this context it cate to that effect to the Tribunal. must be said that Labor has improved the legislation that has been brought in here by Uncooperative conduct is defined as: the government and, by the amendments that ... refusing or failing to cooperate with relevant have been introduced, the government agrees authorities in connection with any of the follow- that there has been an improvement. Given ing: the controversy and the sorts of things that (a) attempts to return the person to a coun- Senator Bartlett has talked about, there are try where the person formerly resided; still huge problems in this area, but at least (b) attempts to facilitate the entry or stay of these amendments are a step in the right di- the person in another country; rection. I think that should be taken into ac- (c) the detention of the person in a country count—and taken into account in a way in respect of which a declaration is in force which gives credit to the Labor Party. To be under subsection 198A(3). fair to Senator Bartlett, I think he concedes This, I think, creates a difficulty for anybody that, although he says, of course, that the who is going to access the new provisions amendments do not go anywhere near far because it says that if they do not go when enough. I should pay tribute to Senator they are asked, even though they can apply Bartlett in this context because he has, over to the tribunal, nevertheless the fact that they the years, struggled to get a situation in Aus- have not gone will be held against them. So tralia where the way we treat refugees has there is some strain in the legislation—strain some semblance to the concepts advanced by in the sense that the concepts of the Refugee the treaty to which we have signed up. Convention, the legislation and the facts do There is some unreality in this legislation not sit happily together. In any event, we will because it in effect says, ‘Even though these see what occurs during the debate in the people come within the borders of Austra- committee stage. lia’—and I would have thought that that was There is one other matter that I should the situation within the concept which the raise when I say the fault lies mainly with convention contains as it was written in legislation rather than with the department. 1951—‘it is not Australia for the purpose of The other piece of legislation is, of course, the convention.’ This, of course, is recreating that establishing mandatory detention. This Australia by definition, but that does not says that if a person is in Australia, having make it any less a country. It seems to me come here as an unauthorised person, then he that, if you looked at this in terms of how or she must be held in detention until there is things really are, you would see that, if they an outcome in terms of defining whether or have come into Australia, they have come not that person is a refugee. That means the into Australia for the purpose of the conven- department has to keep the person locked up, tion. Nevertheless, the legislation is as it is and that creates the situation we have been put forward here tonight. experiencing over the last few years, and it As a result of the efforts of the Labor has got worse and worse as time has gone on. Party, people who come here, who are here In any event, this is another piece of legisla- for a particular time and who are here under tion created by this conflict between con- particular circumstances can access the sys- cepts and reality. As Senator Sherry says, it tem which allows them to claim refugee is an advance on what was there before. It status and if they establish it under that sys- will be interesting to see how the committee tem then they can remain here. There are stage goes. some problems that we will come to, no There is one other thing I would like to doubt, in the committee stage. If I look at say before I sit down. During the week, in 198D(1), ‘Certificate of non-cooperation’, it this chamber, there has been an event that says: dealt with the reputation of a judge. A judge 1156 SENATE Wednesday, 20 March 2002 is entitled to his reputation, and in the case in I would like to foreshadow that during the point that has been vindicated, but so is eve- committee stage I will be moving amend- rybody else entitled to their reputation. I am ments on behalf of the government. Those entitled to my reputation; you are entitled to amendments will entitle certain transitory yours, Mr Acting Deputy President. In a so- persons who are brought to Australia in ex- ciety that believes that one person is as good ceptional circumstances to make a request to as another—an idea that comes from the the Refugee Review Tribunal for an assess- teachings of many people, going back to the ment of whether they are covered by the Galilean carpenter of 2,000 years ago—and definition of a refugee in article 1A of the that everybody is on the same level until Refugee Convention. Broadly speaking, an proven otherwise, we should accept that, just article 1A refugee is a person who is outside as we are entitled to our reputation and the his or her country of nationality and has a Justice of the High Court is entitled to his well-founded fear of persecution. This fear reputation, so these people who come by may be for reasons of race, religion, nation- boat are entitled to their reputations. We ality, membership of a particular social group should not turn them aside as a job lot; every or political opinion. A transitory person will person is entitled to be considered on his or only be entitled to an assessment where he or her merits—not as part of the group. The she has been in Australia for a continuous denigration that has gone on in respect of period of six months or more and has coop- these people is produced mainly by the con- erated with relevant authorities in relation to flict between the concepts behind the con- certain matters. For example, where relevant, vention and the reality of our stance towards a transitory person must have cooperated the asylum seekers. If we think about this, with the relevant authorities in relation to his we will see that it is time that we began to or her removal from Australia. consider people as individuals and not as a In summary, this bill ensures that transi- group that we have simply labelled in a very tory persons may be brought to Australia in nasty way. exceptional circumstances without compro- Senator ELLISON (Western Australia— mising Australia’s immigration processes. I Minister for Justice and Customs) (8.36 thank the opposition for its constructive en- p.m.)—I thank all of those senators who have gagement in relation to this bill and the contributed to the debate on this bill. This amendment sought by the government. I bill amends the Migration Act 1958 to allow think it was Senator Bartlett who indicated persons who have been taken to offshore that he would be asking questions and would places to be brought to Australia in excep- be obliged if those questions could be an- tional circumstances. These exceptional cir- swered this evening in order to expedite the cumstances include: situations where a per- debate. I have advised him that the officials son has a medical condition which cannot be and I will endeavour to do just that, and of adequately treated in the place where that course in relation to any other questions that person has been taken; the transit of a person might be raised. I commend the bill to the through Australia for either return to their Senate. country of residence or travel to a third Question agreed to. country for resettlement; and transfer to Australia in order to give evidence as a wit- Bill read a second time. ness in a criminal trial, such as a people- In Committee smuggling prosecution. The bill excludes a Bill—by leave—taken as a whole. person who has been assessed as a refugee Senator ELLISON (Western Australia— for the purposes of the Refugees Convention Minister for Justice and Customs) (8.40 from the definition of a transitory person. p.m.)—I table a supplementary explanatory This means that a person assessed to be a memorandum relating to the government refugee cannot be brought to Australia in amendment to be moved to this bill. The exceptional circumstances and is not a tran- memorandum was circulated in the chamber sitory person as such. today, 20 March 2002. I move government Wednesday, 20 March 2002 SENATE 1157 amendment No. 1, dealing with sections further request under this section while 198C and 198D: the person remains in Australia. (1) Schedule 1, item 5, page 5 (after line 18), 198D Certificate of non-cooperation after section 198B, insert: (1) If the Secretary is satisfied that a tran- 198C Certain transitory persons entitled sitory person has engaged in uncoop- to assessment of refugee status erative conduct, either before or after the person was brought to Australia, (1) If a transitory person is brought to then the Secretary may issue a certifi- Australia under section 198B and re- mains in Australia for a continuous pe- cate to that effect to the Tribunal. riod of 6 months, then the person is en- (2) A decision of the Secretary to issue, titled to make a request under this sec- revoke or vary a certificate is final and tion. cannot be challenged in any court. However, this is not intended to affect (2) The person may make a request to the the jurisdiction of the High Court under Refugee Review Tribunal for an as- sessment of whether the person is cov- section 75 of the Constitution. ered by the definition of refugee in Ar- Note: Subsection 33(3) of the Acts ticle 1A of the Refugees Convention as Interpretation Act 1901 allows amended by the Refugees Protocol. the certificate to be revoked or varied. (3) On receiving such a request, the Tribu- nal must notify the Secretary. The Tri- (3) In this section: bunal cannot commence the assessment uncooperative conduct means refusing earlier than 14 days after notifying the or failing to cooperate with relevant Secretary. authorities in connection with any of (4) The Tribunal cannot commence, or the following: continue, the assessment at any time (a) attempts to return the person to a when a certificate by the Secretary is in country where the person formerly force under section 198D. resided; (5) Divisions 4, 6, 7 and 7A of Part 7 apply (b) attempts to facilitate the entry or for the purposes of the assessment in stay of the person in another coun- the same way as they apply to a review try; by the Tribunal under Part 7. (c) the detention of the person in a (6) Subject to section 441G, the Tribunal country in respect of which a decla- must notify the person and the Minister ration is in force under subsection of its decision on the request. 198A(3). (7) The decision of the Tribunal is final There has been discussion with the opposi- and cannot be challenged in any court. tion in relation to this government amend- However, this is not intended to affect ment. The purpose of this amendment is to the jurisdiction of the High Court under entitle certain transitory persons to make a section 75 of the Constitution. request to the Refugee Review Tribunal for (8) If the Tribunal decides that the person an assessment of whether they fall within the is covered by the definition of refugee definition of a refugee in article 1A of the in Article 1A of the Refugees Conven- tion as amended by the Refugees Pro- Refugee Convention. The amendments con- tocol: tained in this government amendment are in relation to discussions which have taken (a) the Minister must determine a class of visa in relation to the per- place with the opposition. The entitlement I son for the purposes of this sub- mentioned will only be available to a transi- section; and tory person who has been in Australia for a (b) if the person later makes an appli- continuous period of six months and who has cation for a visa of that class, then cooperated with relevant authorities in rela- section 46B does not apply to the tion to certain matters. application. Where the transitory person is engaged in (9) A person who has made a request under uncooperative conduct in relation to certain this section is not entitled to make any matters, the secretary may issue a certificate 1158 SENATE Wednesday, 20 March 2002 to that effect to the Refugee Review Tribu- Australia but suspend their rights while they nal. While such a certificate is in force, the get that essential medical treatment. Refugee Review Tribunal cannot commence It may be that it is convenient for the gov- or continue an assessment of the transitory ernment to bring them to this country so that person. The secretary, however, can revoke it can prosecute people-smugglers, or for such a certificate where the transitory person some other legal purposes, but, in doing so, it ceases to engage in uncooperative conduct. suspends the rights of these people in this The Refugee Review Tribunal would then country. It may even be convenient for the commence or continue an assessment of government to have the people brought whether the transitory person falls within the through Australia en route to some other definition of a refugee in article 1A of the destination, because there is no alternative, Refugee Convention. but in that process all their rights are sus- The amendments also provide that a per- pended. Of course this does not happen to son who is assessed to fall within the defini- other travellers coming to Australia, particu- tion of a refugee in article 1A of the Refugee larly people of wealth and means—their Convention is entitled to apply for a visa of a rights are not being suspended here tonight. specified class. It is the government’s inten- It is part of the government’s pursuit of sepa- tion that only substantive visas will be speci- rating out the have-nots from the haves at its fied for this purpose. Once again I thank the convenience so that these people can be used opposition for the constructive dialogue that in one way or another that helps the govern- we have had in relation to this amendment. I ment’s conscience but, nevertheless, deprives commend the amendment to the Senate. these people of their rights. That has not Senator BROWN (Tasmania) (8.42 happened in the past and I do not support p.m.)—I want to make it clear at this point that process. that the Australian Greens oppose this legis- The Australian Greens do not support the lation, notwithstanding the amendment. The process and we do not support this legisla- phrase ‘transitory person’ is obviously one of tion. It is making this country a place where convenience. I have a clear recollection of certain persons can be deprived of their the government’s refusal to allow the MV rights. Where is this process going to end? Tampa into Australian waters after, at the Which next group of people in or coming to government’s convenience, that vessel had Australia will be deprived of their rights picked up some hundreds of people to the through this process? The government is north of Australia last year. Many of those victimising those with the least ability to people were then shipped to Nauru and other defend their rights—they are not even in the places outside Australia in the run-up to the country at the moment. I am surprised that last election campaign. the opposition is supporting this, by the way. It is convenient to have actions taken by You can concoct an argument to say, quite the Australian government against the inter- speciously, that what the government is do- ests of such people and then not follow ing is a good thing. It is nothing of the sort through in any way which would enable and I will not support it. I just wanted to those people to have their rights asserted make that clear. when they are near or in Australia. The min- Senator BARTLETT (Queensland) (8.46 ister has explained very clearly to the par- p.m.)—The committee has before it some liament that this legislation will create in this government amendments which have just class of transitory people people who are been moved. I understand three Democrat deprived of rights. It will be convenient to amendments are being circulated. These bring them to Australia if they get very ill, Democrat amendments are not very compli- for example, because the Australian govern- cated. I recognise that it is not necessarily the ment has refused them entry to the country minister’s fault that this bill has been brought and sent them somewhere else where the forward, particularly given he is just repre- medical facilities that are required to attend senting the immigration minister in this to their illness do not exist. So bring them to chamber, but presumably it is the responsi- Wednesday, 20 March 2002 SENATE 1159 bility of the Manager of Government Busi- through clenched teeth when you are con- ness. tinually being treated with such contempt. As I have said a couple of times today, it The government has put forward a list of is very difficult to take a cooperative ap- about 16 bills that it wants to get through this proach when the government treats the Sen- week—again, this is an absolute joke. The ate in such a contemptuous way. I will not government sets no sitting days at all and revisit all the arguments about how this bill then expects the Senate to debate, consider has been rushed on and is being railroaded and pass 16 or so pieces of legislation. Sadly, through this week. We extended sitting hours we are letting ourselves be treated like a until midnight last night and again tonight. It joke; so I suppose we get what we deserve is my understanding that tomorrow we are when we agree to do these sorts of things. likely to remove—for the second week run- This is just by way of introduction. I will ning—general business. This is the only time contain my annoyance because I know it is when non-government senators get to initiate not the minister’s fault. I want to signal again business of their own and that opportunity to the government and the Manager of Gov- will be removed tomorrow. It is also my un- ernment Business that if they keep acting this derstanding—again, yet to be proven—that, way then certainly, from my point of view, it if necessary, the Senate will be sitting on makes one less inclined to be cooperative. Friday for as long as it takes to get this leg- I have indicated that the Democrats, whilst islation through. Why the government is ob- we are very concerned about this bill, will sessed with getting this one bill through this not be engaging in excessive filibuster. As I week, rather than on 14 May, is beyond me. said, we only had one speaker during the But it does highlight that it could not possi- second reading debate on this bill but there bly be in case a few people get sick or the are a number of questions I want to ask. I government needs to bring people here for know the minister has moved the govern- trials of people-smugglers. There is no way ment’s amendments and I could go specifi- that that could be the only reason for this cally to those but I would rather ask some rush. There may be other exceptional cir- questions about the bill as a whole first, if cumstances, as the minister has said, when that is all right with the Senate, because the these powers will be used. It is easy to guess amendments obviously relate to the bill as a what may occur between now and May that whole. This bill is being railroaded through might make the government want to have and normal processes are not being followed. this legislation in place. I am surprised Senator Cooney did not men- I make those comments by way of intro- tion this in his speech, given he is the chair duction. Normally, I would apologise for of the committee, but the Scrutiny of Bills circulating amendments this late. However, Committee today issued their report—as this bill has only been around a week and the senators would know but those listening may government amendments were only circu- not. This committee examines every bill that lated one hour ago. Not only has it been comes before this chamber to assess whether agreed that the bill will be pushed through or not that bill trespasses unduly on personal this week; it has been pushed up the order. It rights and liberties or makes those rights and was not until 7.30 this evening, when the liberties unduly dependent on non- duty minister rearranged the order of busi- reviewable decisions, inappropriately dele- ness, that I became aware that the legislation gates legislative powers, or insufficiently was being bumped up ahead of two or three subjects the exercise of legislative power to other bills. I am not going to apologise for parliamentary scrutiny. I suspect the way the my amendments being late. I think the gov- Pacific solution legislation is set up probably ernment should apologise for jerking the breaches all of those categories. Senate around yet again. I know that it is not The Selection of Bills Committee drew a the minister’s fault, but it does get difficult matter in relation to this bill to the Senate’s after a while to continue to be cooperative attention. I think it was appropriate, given the work that this committee does, that that 1160 SENATE Wednesday, 20 March 2002 matter was drawn specifically to the Senate’s reason why those common law rights have attention. As the Bills Digest says, the bill been abrogated. was introduced into the House of Represen- Senator ELLISON (Western Australia— tatives on 13 March, which is only a week Minister for Justice and Customs) (8.54 ago. Normally, when the committee has con- p.m.)—In relation to the question of why cerns about a trespass on people’s rights and there is a bar on legal proceedings, can I say liberties it writes to the minister with its con- that the rationale is to maintain the integrity cerns, it tables a report drawing it to the Sen- of Australia’s border controls. It is necessary ate’s attention that concerns exist, and it gets to ensure that the transitory person’s pres- the response back from the minister and ta- ence in Australia is as short as possible and bles it in the chamber along with its view as that action cannot be taken to delay that per- to whether or not it adequately addresses its son’s removal from Australia. The bar is in- concern. It is for the Senate to determine tended to ensure that the person follows the whether or not it takes on board those con- correct legal avenue to be recognised as a cerns. It cannot really take them on board if refugee and granted refuge within Australia it does not know they exist, which is why I or a third country. The government’s inten- am drawing them to the Senate’s attention. tion is that those who seek to enter Australia The Senate certainly cannot take on board unlawfully should be required to undergo the minister’s response if the government assessment in a declared country before their rushes the bill through so quickly that the claims to refugee status can be assessed and minister does not have time to respond. they can be resettled in Australia or a third It is probably an appropriate starting point country. This provision is consistent with the to ask the minister to respond to the concerns bar on certain legal proceedings relating to raised by the Scrutiny of Bills Committee. I offshore entry persons. I think that deals with will touch on those concerns briefly. As has the question Senator Bartlett raised here. been explained already, this bill proposes to There may have been another issue that he allow a new category of persons called ‘tran- mentioned in relation to the report, but I un- sitory persons’ to be brought to Australia derstood that to be the concern. without a visa for a temporary purpose but Senator BARTLETT (Queensland) (8.56 bars them from making a valid application p.m.)—Thank you for that answer, Minister. for any visa while in Australia, stops legal In terms of the operation and provisions of proceedings being taken in relation to the the bill, can I initially confirm that ‘transitory transitory person’s presence and provides person’ is not a visa category but just a legal clear statutory authority to remove the person definition and, therefore, such people will from Australia. still be in Australia without visas as unau- As the committee says, this section of the thorised non-citizens and will be in detention bill will prohibit various rights of action, while they are here. The minister outlined which would presumably otherwise be avail- that under the bill as amended in the other able, from being pursued in any court against place this provision does not apply to people the Commonwealth, an officer of the Com- assessed to be refugees. As you said in your monwealth or a person acting on behalf of statement, that will mean that they will not the Commonwealth. The explanatory memo- be able to be brought to Australia for emer- randum to the bill does not indicate the rea- gency temporary purposes. son for this abrogation of common law What happens to people assessed to be rights. Therefore, the committee seeks the refugees who are on Nauru or Manus Island, minister’s advice as to the reasons for abro- for example, and are at that stage where gating these rights and draws that to the Sen- places are being sought for them—whether it ate’s attention, as it may be considered to is Australia or somewhere else? Obviously, if trespass unduly on personal rights and liber- it is Australia they will come here. If Austra- ties. Initially, I would ask the minister to re- lia has not agreed to accept them and they spond to the committee’s request to provide a have been assessed as refugees—but they have not been able to find anywhere to send Wednesday, 20 March 2002 SENATE 1161 them, which I assume the minister will con- sessment process yet. They have arrived at cede is a possible scenario—and they do Christmas Island or Cocos or wherever out- need urgent medical attention, where do they side the migration zone and are therefore in go? I think it would be helpful for the min- the system but have not been assessed. They ister to outline that. would fall under the class of transitory per- sons, should the need arise. It does not just I would also like the minister to clarify apply to people who have been assessed and those who fall into the category of ‘transi- rejected. I just want the minister to confirm tory’. A lot of the statements that have been that that is the case. If that is the case, then made have been assumed to apply to people my understanding would be that people who have had their claim for refugee status would only need to be on Christmas Island assessed but rejected and who are on Nauru, or wherever for a short period of time and if, for example, while we try to sort out how to for whatever reasons, the government felt it make them return or to send them some- appropriate to shift them to Australia it where else. Would that category also apply to would be able to do so, and they would fall people who have not been assessed yet— under the provisions of this bill and be ex- those who have not been through a determi- cluded from the general rights under the Mi- nation process? I presume some of those are gration Act. still on Manus Island, Christmas Island and elsewhere. Would it be the case that basi- Senator ELLISON (Western Australia— cally, once someone is on Christmas Island Minister for Justice and Customs) (9.01 even for a day, and is in that process, they do p.m.)—I understand what Senator Bartlett is not need to be assessed in any way but can driving at there. ‘Transitory person’ as de- then immediately fall under this category of fined in the bill is: ‘transitory’, should, for whatever reason, the ... an offshore entry person who was taken to an- government wish to bring them to Australia? other country under section 198A; Senator ELLISON (Western Australia— That is either Nauru or Manus Island. It does Minister for Justice and Customs) (8.58 not refer to Christmas Island or Cocos Island. p.m.)—Three questions were raised by It only relates to Nauru or Manus Island. Senator Bartlett. Firstly, Senator Bartlett Senator BARTLETT (Queensland) (9.01 sought confirmation in relation to a transitory p.m.)—Thank you for that clarification. The person being in detention while in Australia. minister and the Senate might forgive me I can confirm that the provision of this bill is slightly for querying aspects of how the leg- that the transitory person would be kept in islation that was passed last year operates, detention while in Australia. The second because we did not get a chance to do it last question related to whether a refugee could year and this bill is germane to those acts. come to Australia from a place such as Ma- Sometimes I may need to traverse back to nus Island if there was some urgent need for clarify what has occurred as a consequence it. Yes, that could take place and a visa could of the legislation passed last year. As I un- be granted. I think the example Senator derstand it, under the legislation passed last Bartlett was thinking of was medical treat- year people on Christmas Island or the other ment, and that could be done. Australian territories that have been excised I think the last question was whether are excluded from the migration zone. They someone on, say, Christmas Island could be are not able to apply for visas and are basi- brought to Australia and classed as a transi- cally in the same or a very similar legal tory person and thereby circumvent the Mi- situation to people on Manus Island. So I gration Act. I am not sure that I understood guess the same question arises there. If peo- Senator Bartlett correctly there. He might ple are on Christmas Island and are either want to clarify that last question of the three. still being assessed or have been assessed and rejected, what happens if they need Senator BARTLETT (Queensland) (9.00 medical treatment or if you need them in p.m.)—The scenario I am relating to is those Australia for people-smuggling trials or people who have not been through an as- whatever? If those people come into Austra- 1162 SENATE Wednesday, 20 March 2002 lia, potentially they would then be able to power that it would normally exercise in this engage our protection obligations—is that area because of its ousting by the first arm, correct? the parliament, and this is done on the basis Senator ELLISON (Western Australia— of legislation from the government. This Minister for Justice and Customs) (9.03 could be seen as an attack on the judiciary. It p.m.)—I understand Senator Bartlett’s ques- is a matter of some concern, given the events tion is: if someone from Christmas Island of recent days, particularly in respect of the were brought to Australia for the purposes of High Court judge, Justice Kirby, a person giving evidence in a people-smuggling case, whose reputation was assailed in a most un- would the same provisions apply to them as fortunate, unfair and wrong way, and given would apply to someone from, say, Manus or the fact that the Attorney-General says, ‘It is Nauru? I am advised that that would not be not up to me to protect these judges’—or any the case. I am advised that they would come judge, for that matter. Is there not a danger within section 46A, which is headed ‘Visa that the problem will arise that we seem to be applications by offshore entry persons’. That here in an exercise of denigrating the judicial states: system? (1) An application for a visa is not a valid What you get in the end is the need for application if it is made by an offshore judges to put forward their own case. I notice entry person who: that during the week Justice Nicholson, the (a) is in Australia; and Chief Justice of the Family Court, was (b) is an unlawful non-citizen. moved to make a statement about the issue of Justice Kirby, and I notice that the former That would apply to anyone coming to Aus- Chief Justice of the High Court, Sir Anthony tralia in those circumstances. They would be Mason, has decided to do the same. Has the barred under that section from making an government thought of the consequences of application. They would not, however, be its attempted ousting of judicial power in this barred pursuant to this bill. area? Has it thought about the effect that has Senator COONEY (Victoria) (9.04 in a situation where the Attorney feels unable p.m.)—It may help, Minister, if you could to protect the standing of judges, the status of perhaps clarify what you meant by a refugee. judges and the reputation of judges and about Do you mean a person who is in fact a refu- the fact that judges such as the Chief Justice, gee or a person who has been declared to be Alistair Nicholson, have had to get up and a refugee by Australia? make a statement? Has the government Senator ELLISON (Western Australia— thought of the danger this causes to the Minister for Justice and Customs) (9.05 whole system? p.m.)—When we say ‘refugee’ we mean a Senator ELLISON (Western Australia— person who has been assessed as being a Minister for Justice and Customs) (9.08 refugee. p.m.)—The Migration Legislation Amend- Senator COONEY (Victoria) (9.05 ment (Transitional Movement) Bill 2002 p.m.)—Thank you. I think that would make does in clause 6. In proposed section things a lot clearer. So a person could in fact 494AB(3) it states: be a refugee but not be declared to be one. I Nothing in this section is intended to affect the think that is quite apparent from what you jurisdiction of the High Court under section 75 of say. Can I just make another comment and the Constitution. perhaps ask a question arising out of the So the original jurisdiction of the High Court matters that Senator Bartlett has brought up. still operates. In no way has this bill sought The jurisdiction of the courts, and in par- to exclude that. In fact, I do not think it ticular the Federal Court, is ousted by this could. But it does not and it makes it very legislation. When I talk about ‘this legisla- clear that the High Court still has jurisdic- tion’ I mean the legislation in general in this tion. So it is not a case of excluding any ju- area. That means that the third arm of gov- dicial action. The High Court’s jurisdiction is ernment, the judicial arm, cannot exercise the still very much available. Wednesday, 20 March 2002 SENATE 1163

Senator COONEY (Victoria) (9.09 Court has application. It is more informative p.m.)—The effect, as I read it, of having to put it there in an obvious way rather than 494AB(3) in there is just to state the obvi- to just leave it out and let them go and seek ous—that the parliament cannot oust the ju- legal advice. risdiction of the High Court because it is Senator COONEY (Victoria) (9.13 contained in the Constitution. Its being there p.m.)—I know we want to progress this, but I suggests, I think, that the Migration Legisla- think it is important to look at the way the tion Amendment (Transitional Movement) government and the Migration Legislation Bill 2002 would like to oust the jurisdiction Amendment (Transitional Movement) Bill of the High Court if it could. I think that sub- 2002 approach the court system. What is section emphasises what I am saying—that going to happen is that there will be, I should there is a real problem arising in the commu- imagine, a whole stream of prerogative writs nity of the appearance, and an appearance is taken off to the High Court. The High Court a very bad thing to have in this situation, of should really be a place that hears the final parliament trying to throw out the chapter 3 appeals from courts around Australia and courts, insofar as they can, and stop them sets the law for Australia insofar as the law is from exercising their jurisdiction in Austra- going to be advanced by the common law lia. It is the immigration legislation today, system. That is what the High Court should the industrial legislation tomorrow and per- be, rather than be a court at first instance, haps the Family Court jurisdiction the day which this legislation makes it. It is a very after. Because of that, you have the problem worrying trend that this government has set of judges and ex-judges having to get up and in train a system that takes away the time defend themselves and their courts. If we are that the High Court should be devoting to going to have legislation such as this and an hearing appeals and setting the law for Aus- approach by the Attorney-General of not in tralia and making it in effect a court of first any way raising his voice to protect the judi- instance where it has to deal with writs cial system, we are going to have a situation coming up to it. It seems absurd in those cir- where the courts themselves have got to get cumstances that you would take away the into the political arena, which is a very bad jurisdiction of the courts that should be thing. I am wondering whether the govern- dealing with that part of the law and transfer ment could reconsider its situation. it to the High Court. Senator ELLISON (Western Australia— Senator BARTLETT (Queensland) (9.15 Minister for Justice and Customs) (9.12 p.m.)—I have a few more questions about the p.m.)—This debate was largely conducted circumstances people might find themselves last year with the package of legislation that in, before I address the specifics relating to we dealt with then. That dealt with a stream- the amendment. Given that this bill applies to lining of process, if you like, in relation to offshore entry people who have been taken the avenues of legal action that might be to Nauru and Manus Island, how long will available to someone making an application Nauru and PNG allow people to stay there for asylum in Australia and yet come here and what are the guarantees that Australia unlawfully. It is not the government’s inten- has given that they will not stay there longer tion, or the government’s intention to give than a certain period of time? What is the any appearance of an intention, to oust the current status of the assessment process? The jurisdiction of the High Court. In fact, it is New Zealand government took more than worth while stating that in the Migration 100 people off the Tampa and processed and Legislation Amendment (Transitional assessed them and, incidentally, approved Movement) Bill 2002 the High Court still most of them—if not all of them, all but one. has jurisdiction. It is obvious, of course, but I Whether they were approved or not, it as- think it does not hurt to state the obvious. It sessed them all within a month or two yet it makes it very clear to people looking at this is now more than six months—I think the that the High Court still has jurisdiction—it Tampa was in August—and those people not makes it very clear in simple terms to anyone taken by New Zealand are still waiting to who comes to this bill—and that the High 1164 SENATE Wednesday, 20 March 2002 have their applications processed. All the catching malaria or something in the next Manus Island people have certainly been month or two. there since last year. What is the period of Obviously, amongst those people who are time for processing and what are the expec- assessed there will be some whose case ap- tations in terms of final decisions? Are those plications will be rejected. Given what we decisions going to be announced all at once, have seen in detention centres here, with or will they dribble out? What happens if the people in those circumstances occasionally government is not able to find somewhere reacting badly, I think it is reasonable to as- for people to go when the time frame that sume that it is possible to have some people Australia has under the agreement runs out? on Manus or Nauru reacting badly to the Is Australia trying to find someone else to news of a bad result. Is it possible for the take on board all those people who are as- sorts of provisions we are introducing to- sessed as refugees but that Australia does not night to be used, for example, to remove want to take? What about all those who have people like that—people who are perhaps been unsuccessful but cannot be returned seen as unruly or disruptive? Could the gov- anywhere, which is likely to be the case ernment take them out of Nauru and put given that a number of people are from Iraq? them in Woomera, for example, to try to as- As I understand it, that is one of the countries sist with the atmosphere in those original it is difficult to return people to against their camps? Could this legislation be used for will. What will happen in circumstances that type of circumstance? where they are not assessed as refugees but are not able to be returned to their country of Senator ELLISON (Western Australia— origin? Minister for Justice and Customs) (9.20 p.m.)—We have to remember that we are Senator ELLISON (Western Australia— talking about jurisdictions that are not within Minister for Justice and Customs) (9.17 Australia. Nauru and Manus Island are not p.m.)—No decisions have yet been handed jurisdictions where Australia can legislate. It down by either the UNHCR or the Depart- is really a question in the first instance for ment of Immigration and Multicultural and the local authorities—whether a person’s Indigenous Affairs. It is anticipated a signifi- behaviour constitutes an offence or whether cant number of decisions will start flowing in that person should be removed as a result of the next month or so. Negotiations are con- that behaviour. There are provisions in this tinuing with Nauru and PNG in relation to bill which do relate to removal of people and the length of time that these people can stay they are contained in section 198B, I think, there. Negotiations are being conducted on ‘Power to bring transitory persons to Austra- the basis that there is an ability to accommo- lia.’ There are powers listed there in relation date them until the end of the year—not that to doing a number of things within or outside they will stay there for that period. However, Australia: that is subject to negotiation. (a) place the person on a vehicle or vessel; Senator BARTLETT (Queensland) (9.18 (b) restrain the person on a vehicle or vessel; p.m.)—Thank you. To clarify that, poten- tially people may be able to stay on these (c) remove the person from a vehicle or vessel; islands until the end of the year, subject to (d) use such force as is necessary and reason- negotiations. Is that basically what you said, able. in shorthand? I think that is fairly well spelt out in the bill. Senator Ellison—Yes. Primarily the authorities in Nauru and the island of Manus have jurisdiction in relation Senator BARTLETT—Thank you. The to the person’s conduct and whether that at- statement by the minister that a number of tracts any sanction. decisions are expected to start appearing over the course of the next month makes me won- Senator SHERRY (Tasmania) (9.22 der, again, whether that fact may be more p.m.)—I do need to indicate the position of behind the urgency of this bill than the fear the Labor opposition to the amendment that that there might be a number of people the government has moved. I wish to do that Wednesday, 20 March 2002 SENATE 1165 now. The circumstances the minister has The TEMPORARY CHAIRMAN outlined are correct. Following the concerns (Senator Hogg)—Yes, the question before outlined by our shadow minister Ms Gillard the chair is the amendment moved by the in the other place, concerns that I also minister on sheet VW 240, the government touched on tonight in my contribution, the amendment. government has taken up at least some of the Senator HARRADINE—Under those suggestions made and they are reflected in circumstances, with the greatest respect to the amendment we have before us moved by Senator Sherry, the remarks he made are ir- the government. For the reasons that Ms relevant, because we have only had this par- Gillard and I have touched on, we will be ticular amendment for, I think, about 3½ supporting the amendment moved by the hours. government. Senator BARTLETT (Queensland) (9.26 I will just touch on one other matter, as p.m.)—I think Senator Harradine put it par- Senator Bartlett raised it again. I know we ticularly well. These very significant have debated it twice today already. That amendments, which I will ask a question of matter is the issue of the referral of the bill to the minister about in a moment, only ap- a committee. We did have the opportunity, as peared tonight. They are, in my view, quite Senator Bartlett knows, to refer the matter to major amendments which really should re- a legislation committee. Regrettably, the ac- quire at least questioning of the officials tions of Senator Bartlett last week on the from the Refugee Review Tribunal them- Selection of Bills Committee effectively selves, given that they affect them so di- blocked such a move. Whatever Senator rectly. We would not have had that opportu- Bartlett’s view of a legislation committee nity if the attempts by the government, with hearing is, and I think he has made clear his the apparent support of the opposition, to dim view of it, I certainly know, having par- have a sham hearing last week had been suc- ticipated in many legislation committee cessful. I will not go back over that again hearings over a number of years, that they because I also think it is time we moved on are an effective forum for hearing from the from that debate, but given that it has been community and from the various interested raised again it is important to correct the rec- groups, parties and individuals about their ord once more. The actions I took did not concerns about pieces of legislation. I was block the bill from going to committee. What just looking at the make-up of the Legal and they did was postpone the debate on the ap- Constitutional Legislation Committee, and I propriate reporting date of such a reference saw that my colleague Senator Cooney, who until this week. What we had today was a is in the chamber tonight, is a member. He motion to refer the bill to a committee which always makes a perceptive and valuable was defeated by the vote of the opposition contribution in his questioning. If the bill had and the government. So it was a government gone to the legislation committee which, as I and opposition vote that stopped it going to a say, by your actions, Senator Bartlett, you committee; it was not the Democrats’ ac- prevented from occurring, I am sure the tions. The Democrats’ actions were basically committee would have had sufficient time to to try to ensure that there would be a proper ask some at least of the questions we are examination rather than a minimalist one. dealing with tonight and to obtain some an- swers. It is not my intention to go over that I should hasten to add that I am not re- ground again, but I felt it necessary just to flecting on the ability of the committee. Be- mention that in indicating the Labor opposi- ing a participant on it myself on a number of tion’s support for the amendment we have occasions, I think it is quite a good one— before us. there are good skills there from people from all parties—but the fact is that we would not Senator HARRADINE (Tasmania) (9.25 have had the full bill to examine. Senator p.m.)—Are we dealing with the government Sherry quite rightly made a suggestion about amendment? the value of legislation committees: you can get people in with expertise to provide you 1166 SENATE Wednesday, 20 March 2002 with their views. But that could not have quired to by somebody again misrepresent- happened, because the people with expertise ing the Democrats’ actions in this regard. did not even know the bill existed; they cer- Just before I go to the amendment, I tainly would not have been able to provide would like to follow up the minister’s last comment on it. In the time frame that the answer, which talked about jurisdictional government was attempting to impose, they issues and the fact that people on Manus Is- certainly would not have had the opportunity land and Nauru are basically not under Aus- to develop their understanding of the issues. tralia’s jurisdiction. Proposed section 198B, Even after the bill has been around for a about the power given to a Commonwealth week, some of the people in Australia with officer, actually includes quite a large num- the best legal knowledge about these issues ber of people and, as it says here, includes are still exploring aspects of this, particularly members of the Australian Defence Force. its consequences. That point needs to be They have the power under this proposed made. Obviously, we are focusing here and section to place a person on a vehicle or ves- now on the content of the bill and how it is sel, restrain a person on a vehicle or vessel, likely to be used in the short term, but you remove a person from a vehicle or vessel and also have to look at what it is going to mean use such force as is necessary and reason- in a broader context down the track and what able. Also, under a later section, all these it is going to mean in a global context when exercises of powers are exempt from any other countries see that Australia is pro- proceeding under any court. The wording is gressing further down this path of removing that no proceedings relating to the exercise people’s legal rights while they are in our of those powers by a Commonwealth officer country. It is time we examined what impact can be instituted or continued in any court. this is having on the international commu- nity. That is why the Democrats have had a The two questions I ask following on from motion on notice to have a broader Senate the minister’s comment about jurisdictional inquiry into this whole issue. issues are: firstly, do these powers under this bill apply to a Commonwealth officer in The other unfortunate point to raise is that Nauru or PNG? Surely the laws of PNG and we already have a Senate inquiry under way. Nauru would apply there, not this law. Sec- That is the so-called ‘children overboard’ ondly, in proceedings against the Common- inquiry. That is not just about that; it also has wealth in any court, does that include any a term of reference about the Pacific solu- foreign court? Does it mean the exercise of tion. Again, if only we had had the chance to powers is exempt from court proceedings in have this bill debated less inappropriately Nauru and PNG as well? If not, I presume quickly, we might have been able to examine some of these powers detailed here—such as things through that committee. I am sure that placing people on vehicles and vessels or committee, which is holding at least seven removing them—and protection, if you like, days of hearings during the break, will in- or exemption from legal action, apply to ac- clude hearings with department officials and tions taken in Nauru or PNG, or any other others—hopefully the UNHCR and others— country that is not Australia for that matter. about the operation of the Pacific solution. I We have already seen some of the difficulties could have asked all these questions then involved with removing people from vessels instead of asking them now. to get them onto Nauru. And does the bar on Again, I make the point I made this court proceedings apply to courts overseas? morning: the government might think this Senator ELLISON (Western Australia— helps facilitate their program by doing this Minister for Justice and Customs) (9.32 sort of thing and fast-tracking, but it actually p.m.)—I am advised that the courts in Nauru means we chew up more time in the cham- and Manus still have jurisdiction. This bill ber. We are asking these questions that we does not attempt to oust that jurisdiction. If could otherwise ask in committee hearings. I there were any action by a Commonwealth will not revisit that again unless I am re- officer in those two countries which attracted the sanction of the law in those two coun- Wednesday, 20 March 2002 SENATE 1167 tries, then the jurisdiction of those courts in ble to be somewhere in the loop. Nonethe- those countries would apply. This bill is less, the amendments, even in the form they saying it is in Australia that you have the are in now, I really only managed to get hold situation where the possible action to a court of today and I have tried to get some feed- is limited and only in Australia. But it does back from people on them. I have a number say the High Court still has its jurisdiction, of questions on this amendment. I think it is and that remains throughout. That is the very significant and, in general, is a bit of an situation. It is not a question of Australian improvement. It provides a little bit of extra law overriding the law in Nauru or Manus reasonableness, if you like, for people if they Island. end up being stuck in Australia for a long Senator BARTLETT (Queensland) (9.33 period of time. But the amendment does raise p.m.)—Proposed section 198B of the bill a lot of issues as to how things should be states that a Commonwealth officer can bring approached. The first part of the amendment a transitory person to Australia from a coun- enables transitory people, if they are in Aus- try or place outside Australia. The power tralia for six months or more, to request the includes the power to do certain things Refugee Review Tribunal to assess whether within or outside Australia. So, surely, that they are a refugee. That is unusual, for rea- proposed section is empowering people to do sons I will go into in a moment. things outside Australia, outside our juris- The second part of the amendment pre- diction, including in someone else’s jurisdic- vents people from exercising their right, even tion. How does that gel with the minister’s if they have been here six months, if the sec- answer? retary to the department believes that they Senator ELLISON (Western Australia— have been engaged in uncooperative conduct. Minister for Justice and Customs) (9.34 This is an another aspect to migration law p.m.)—That is talking from a domestic point again, and I think we are just building prob- of view in Australia. It is not saying these lem on problem in the way we keep going people can do all things willy-nilly in a for- down this path. Be that as it may, I guess we eign jurisdiction and they do not attract any will have a category of people under this potential sanction of the law in that foreign certificate who are certified uncooperative jurisdiction. It is saying they have the power transitory people, and the powers and to do any of the following things within or mechanisms for that raise issues that I need outside Australia as far as Australian domes- to ask questions about as well. tic law is concerned. That is what it is say- My reading of this amendment—and the ing. It is in relation to the operation of Aus- minister can correct me if I am wrong—is tralian law only. that, firstly, it provides a whole new power Senator BARTLETT (Queensland) (9.35 and area of activity to the Refugee Review p.m.)—The amendment contains two distinct Tribunal, outside the normal processes of the parts. Again, for the benefit of those follow- Migration Act, in that it requires the Refugee ing this debate, the amendments, as Senator Review Tribunal to make an initial assess- Sherry said, were generated following con- ment. So they are not actually reviewing the cerns expressed by the Labor Party. I ac- person’s decision, from Manus Island or knowledge and thank both the opposition wherever; they are actually making a fresh shadow minister, Ms Gillard, and the minis- decision. This would mean that the Refugee ter—or at least his staff—for keeping me Review Tribunal would not actually be re- informed as much as possible of what they viewing a decision but making a fresh deci- were considering and, I guess, to some extent sion, which is a bit of a misnomer for the taking on my feedback. I do not know Refugee Review Tribunal. whether that feedback had any impact in The second unusual aspect is that, ac- terms of the end product, although there were cording to my understanding of the amend- one or two improvements. That may or may ment, when someone makes a request to the not have had anything to do with what I said, tribunal to make such an assessment, the tri- but either way it is always good where possi- bunal has to notify the secretary to the de- 1168 SENATE Wednesday, 20 March 2002 partment, and they cannot do anything for 14 four things in this amendment which, on days after they have notified the secretary. their own, are new. Presumably it will take them a little while to The key things I would like to ask for notify the secretary. I understand that that is starters, other than verifying that all my as- unprecedented and that the tribunal is not sessments are correct, are: given that this has currently required to notify the department if all been done very quickly in the last five or someone has applied for a review. six days, has the Refugee Review Tribunal The third unusual aspect is that this new been consulted about this amendment? If so, power of the tribunal cannot actually operate in what way, and what was their view? Has if the secretary whacks in an non-cooperation there been any assessment about what this certificate over the top of it. They can be could mean for the workload of the RRT? stopped at any stage of assessing, I presume, Are there any financial implications or im- because the amendment says that the tribunal plications in terms of extending the overall cannot commence or continue their assess- processing time for everybody because of the ment once a certificate of non-cooperation is increased workload for the RRT? Have those issued by the secretary. So they could quite issues been considered and addressed, either literally be one minute away from the rubber with or without consultation with the RRT? stamp saying ‘this is a refugee’ and the cer- Senator ELLISON (Western Australia— tificate of non-cooperation can come down Minister for Justice and Customs) (9.42 from above, and that would be it. There is no p.m.)—For a start, I am not so sure that you appeal against a certificate of non- consult with the High Court or the Federal cooperation, and the tribunal cannot go any Court when you are looking at making vari- further whilst that is in force. ous laws. They are decision makers, not nec- The decision of the tribunal is final and essarily policy makers. Senator Bartlett said cannot be challenged in any court, which that the decision by the secretary was non- again extends even further the prohibition on appealable. Of course, the original jurisdic- appeals. Currently people can appeal Refu- tion, the High Court, remains, and the secre- gee Review Tribunal decisions to the Federal tary would have to make that decision based Court—under extraordinarily limited on the facts. There could well be an applica- grounds, but they can do so. In effect, that tion to an agreed person by way of a pre- appears to remove any scope for challenge, rogative writ to the High Court. So I would under any sort of procedural fairness or take issue with the statement that there is no anything else, except for the High Court’s appeal in relation to the secretary’s certifi- original jurisdiction. cate. Those are just a few of the aspects. I have In relation to the application to the Refu- some questions in relation to other parts, be- gee Review Tribunal, it is a de novo applica- cause I am not sure precisely how it will tion—a fresh application—and it comes third work. It is a one-off go, as well; you only get after a consideration offshore as to the per- the one shot. You cannot, if you are here for son’s status and an administrative review another six months, get another go. Given mechanism which can be looked at. The ap- that we have an amendment that gives a plication to the Refugee Review Tribunal for brand new power to the RRT, it is not actu- assessment, which is spelled out in the bill, is ally a review at all; we make it completely not dissimilar to the application which is beyond any sort of challenge to a court. The available for a protection visa. There are dif- review is subject to being stopped at any ferences, and Senator Bartlett has mentioned stage by a non-appealable action by the de- them, in relation to the suspension of the partmental secretary. The tribunal now, as I assessment by the Refugee Review Tribunal understand it, for the first time have to notify by virtue of the certificate. That is something the secretary and wait 14 days before they which is contained in this bill and is not start assessing things, thereby giving the sec- contained elsewhere in migration legislation, retary time to get the person out of the coun- and it is for the reasons that have been men- try before they can be assessed. Those are tioned by the government. This application Wednesday, 20 March 2002 SENATE 1169 to the Refugee Review Tribunal is one which relation to character matters. I am advised would come in the course of events, after that that is the difference. I think Senator two other decision making processes have Bartlett was asking what the difference is been gone through. between the protection visa route and this Senator BARTLETT (Queensland) (9.45 one. Certainly, there are similarities in what p.m.)—Could I clarify that point. My under- they have to make out concerning the fear of standing from the answers the minister gave persecution but, as far as the character aspect before is that it is possible for us to have goes, the protection visa has an avenue for transitory people in Australia who have not appeal where this one does not in relation to gone all the way through an assessment pro- that particular matter. cedure, who may have been part of the way Senator BARTLETT (Queensland) (9.48 through but need to be removed for whatever p.m.)—I thank the minister for his answer. reason. I thought we established that point Concerning the changes that were made last earlier on, in which case this would be the year via Migration Legislation Amendment only assessment because they would not Bill (No. 6) 2001, which included changes to have had those two other ones. I presume, the definition of refugee status under Austra- from the way the minister’s response was lian law, does the criterion that is going to be framed, that there has not been any consulta- used by the RRT to make these fresh assess- tion with the Refugee Review Tribunal. I ments match that criterion as it is now acknowledge that that is not essential when amended and operates under the general mi- you are making laws but it is not too bad an gration act? idea to at least let them know that this new, Senator ELLISON (Western Australia— extra power and responsibility is likely to be Minister for Justice and Customs) (9.49 put upon them and to get feedback from p.m.)—The answer to that is yes. them about whether they saw any problems. Again, that is the sort of thing a Senate Senator BARTLETT (Queensland) (9.49 committee can do quite effectively if it has p.m.)—Can the minister clarify a previous the opportunity. question that I do not think was specifically responded to. Has there been any considera- One of the criteria that the RRT have to tion of the likely or possible impact on the use in making their new decision is whether workload of the RRT or the costs or overall the person is covered by the definition of determination time, given this potential extra ‘refugee’ in article 1A of the refugee con- and different type of activity? I also ask: why vention as amended by the protocol. Can I is the 14-day requirement in there? This is ascertain from the minister how that defini- the requirement that the tribunal has to notify tion of ‘refugee’ in article 1A equates with the secretary on receiving a request and that the criteria the RRT have to use in deter- they have to wait 14 days before they can mining people’s suitability for protection begin assessing. I understand that it is differ- visas in Australia? Is it exactly the same? Is ent, but I would like to know why that has it a mirror image? Are there different aspects been put in there. in terms of the definition that they have to Senator ELLISON (Western Australia— assess against? Minister for Justice and Customs) (9.50 Senator ELLISON (Western Australia— p.m.)—I will take that question on notice, Minister for Justice and Customs) (9.47 Senator Bartlett. There is a reason for that, p.m.)—I understand that, in relation to this but I had best make sure that I have the an- application, they still have to show a fear of swer. persecution, as I mentioned earlier, in rela- tion to race, religion, political opinion or the Senator COONEY (Victoria) (9.50 other matters I have mentioned. The differ- p.m.)—I can understand giving 14 days no- ence is that they do not have any resort to the tice so that the secretary can prepare the Administrative Appeals Tribunal which case, I suppose. I do not know that you have would be available, or could be available, answered the question that Senator Bartlett under an application for a protection visa in asked originally about uncooperative con- 1170 SENATE Wednesday, 20 March 2002 duct. The difficulty is that the secretary can Secondly, I am curious as to why it is split ask the person to leave and go to some other into two parts—that is, if they are successful country for one of three reasons: there is a in the RRT, they do not get the visa; what country where the person formerly resided, happens is that the minister must decide on, they are going off to another country, or they it seems, any class of visa and then the per- are going off under section 198A(3). If the son has to apply for it and they can only ap- secretary does give 14 days notice and ply for that one, as I read it. So would it still 198A(3) applies, then he can simply say, be the case, if the minister says that they can ‘You’ve got to leave the country.’ That would apply for a spouse visa or something, that the be the effective way out of this and the test person—even though they have been deter- of whether or not the person complies is mined to be a refugee by the RRT—would whether or not he or she leaves the country. not have the power to apply for a refugee If he or she leaves the country, then there is visa? If the minister determines a class of really no case to be put before the tribunal visa for that person—even if it is a protection because he or she has been put out of the visa, for example—the person has to apply. country. There does seem to be a contradic- Does that mean they then go back into the tion there. I can understand that you have to usual primary decision making procedure give notice to prepare a case, but it does through the migration department? Is it theo- seem unfair if the person giving the notice is retically possible that the migration depart- then able to say, ‘Clear out, and if you do not ment determining officer could say, ‘You clear out that is evidence that enables me to don’t meet the criteria’? What happens then? stop the hearing going on.’ Senator ELLISON (Western Australia— Senator ELLISON (Western Australia— Minister for Justice and Customs) (9.56 Minister for Justice and Customs) (9.52 p.m.)—There were a number of questions p.m.)—That involves the previous question there. Firstly, the class of visa has to be a which we are taking on notice. We will get substantive visa. There are a variety of them. back to Senator Bartlett. It could be a tourist visa, as Senator Bartlett Senator BARTLETT (Queensland) (9.53 has said. It does not include a bridging visa. p.m.)—I have a few further questions that Section 46B, which is excluded where the relate to this. With respect to the requirement application can be made—that is, after a fa- under part (8) of the first amendment that, if vourable assessment is made—talks about an the assessment by the Refugee Review Tri- application for a visa not being able to be bunal is successful, the minister must deter- made by a transitory person in those circum- mine a class of visa in relation to the person stances. So it could be any substantive visa and then the person later makes an applica- other than a bridging visa. I think that covers tion for that visa, my understanding is, the situation in relation to Senator Bartlett’s firstly, that the minister is not required to concern. determine that that class of visa be a protec- I have had further advice in relation to the tion visa. Can the minister pick from the 14-day period. This was introduced in order whole range of protection visas—the perma- that the secretary has a period within which nent protection, the temporary protection, the to investigate the conduct of the transitory temporary offshore entry and the other one person. The secretary could choose to issue a that came in last year which I have forgotten certificate if there is found to be any uncoop- the name of—or can it just be a bridging visa erative conduct or choose not to take any with no permanency at all attached to it, like action. That 14-day period is an opportunity some sort of visitors tourist visa? Surely un- for the secretary to make that investigation— der this the minister could say, ‘I determine a not so much to prepare his or her case, but tourist visa for you,’ and then the person can more to investigate the conduct of the person make an application for that tourist visa. Ob- concerned. viously that visa is temporary. Is the power Senator BARTLETT (Queensland) (9.57 there under this section whereby they do not p.m.)—I thank the minister for his answer. I have to offer a protection visa? think there were a couple of bits there that Wednesday, 20 March 2002 SENATE 1171 were not answered, particularly the scenario substantive visa but I will just check on that. where the minister determines a class of I am advised that the basis for this is in the visa—for argument’s sake, let us say it is a tabling speech in relation to this amendment. protection visa—and the person then makes The government stated: an application for it. I assume that there is no The amendments also provide that a person guarantee that that application will be suc- who is assessed to fall within the definition of a cessful. What happens in such a scenario? If refugee in article 1A of the refugee convention is they do get, for example, a tourist visa—as entitled to apply for a visa of a specified class. It the minister mentioned—what happens when is the government’s intention that only substan- the tourist visa runs out? This is a tourist visa tive visas will be specified for this purpose. issued to somebody who it has been deter- That is the authority for the position I have mined is a refugee. So what happens when outlined. the tourist visa—or, for that matter, any Senator BARTLETT (Queensland) visa—runs out? In what part of the amend- (10.01 p.m.)—We have not touched much on ment does it say that it has to be a substan- the certificate of non-cooperation. This, basi- tive visa rather than a bridging visa? Can you cally, is a certificate that the secretary of the clarify why that is actually the case? I take department can issue as a determination that the minister at his word that that is the case, the transitory person has been engaged in but I cannot see where it says that. uncooperative conduct, not just while they Senator ELLISON (Western Australia— are here but even before they have got here. Minister for Justice and Customs) (9.59 Uncooperative conduct is defined to mean p.m.)—In relation to the question of what can that they do not cooperate with attempts to happen where this person applies for a return the person to a country where they visa—whether that person can be rejected formerly resided, attempts to facilitate the and what action is available to that person— entry or stay of that person into another once the assessment has been made by the country or cooperate with their detention in a Refugee Review Tribunal that the person country. comes within the definition of a refugee un- Firstly, I want to assess that definition of der the convention, then that person has uncooperative conduct in relation to persons available to him or her all the avenues of not cooperating with relevant authorities in appeal and action that anyone would have connection with their detention in a country under the migration laws of Australia. in respect of the declaration under section Senator Bartlett said, ‘What about if a visa 198A(3). I am assuming but would like to is not granted or if they are given a tourist clarify: does that include people being de- visa for a limited time and they then have tained on Manus Island and Nauru? My un- that taken off them’—all manner of things derstanding is that technically they are not in obstruct their way, if you like. The advantage detention. Would that include the people who they have, once they have been assessed by are in Indonesia, the people who are in a the RRT as coming within the convention, is camp in Pakistan and the people who are in that they have these avenues of appeal avail- any other places of detention? I presume that able to them under the migration laws of 198A(3)—I do not have it in front of me—is Australia so that if they do not have a satis- Pacific solution related. So, firstly, could that factory decision, they can appeal that. That is mean uncooperative activities in detention on not available to a transitory person in accor- Manus Island or Nauru? dance with this bill. So once they have been Senator ELLISON (Western Australia— assessed as coming under the convention, it Minister for Justice and Customs) (10.04 takes them out of the transitory person cate- p.m.)—It only relates to declared countries gory and they have got those avenues of ac- and those are Nauru and Manus Island. tion available to them. Senator Bartlett—Is it the case that those The other part of Senator Bartlett’s ques- people are seen as being legally in detention? tion is in relation to why a bridging visa is not included. I think that is because it is not a 1172 SENATE Wednesday, 20 March 2002

Senator ELLISON—I would have to say operative, so that we can get a sense of what that they are regarded as being in detention, the sort of threshold is, and, secondly, can it but if there is a need to change that advice to apply to behaviour that people have already Senator Bartlett, I will do so. I will check on done before the legislation is even passed? that. Certainly, my understanding would be It is quite obvious that this legislation may that they would be regarded as being in de- end up applying to people who are on Nauru; tention. that is no secret. By the time anybody is here Senator BARTLETT (Queensland) as a transitory person for six months or (10.04 p.m.)—In relation to this certificate— more—and that obviously cannot occur until and, again, I think it is worth emphasising after this legislation goes through—the ac- that this is a decision that is made by the sec- tivities of people getting off the boat at retary—I presume that that decision making Nauru would be more than 12 months old, power is delegated in the same way as all and that is more than six months before this other decision making powers in the act can idea of noncooperation even existed. Could be delegated. Could that be confirmed for that type of activity be used against some- me? It is worth emphasising that this deci- body even 12 months down the track? Once sion to issue a certificate of non-cooperation the minister sees that, because the RRT has is, according to the amendment, ‘Final and notified them under that 14-day period, they cannot be challenged in any court,’ with the can basically go back and assess that. What proviso, of course, of the original jurisdiction is the standard of proof that is required? In of the High Court. This would mean that relation to both the determination of refugee somebody would have to go straight to the status undertaken offshore on the Pacific High Court to challenge the issuing of the island and decisions like this by the secretary certificate. about the certificate, what guarantee is there The minister has just said that the reason that those decisions have been subject to the why this 14-day period was put in there, the requirements of procedural fairness? I will 14-day period before the tribunal can start leave it at that for the moment. assessing someone’s case, is to give the de- Senator ELLISON (Western Australia— partment time to check if the person has been Minister for Justice and Customs) (10.08 uncooperative. I presume that that does not p.m.)—Once again Senator Bartlett has got a just mean check whether or not they have number of questions there. Firstly, there is an already got a certificate out against them but ability for the secretary to delegate that deci- actually go and investigate their behaviour. sion making process in relation to the issue Surely the concerns would have been raised of a certificate. No decision has yet been and a certificate could be issued, or is it made as to whether there will be a delegation likely that the government would only bother of that, but in the event I would imagine it issuing these sorts of certificates once people would only be to a senior official. Senator have spent six months in Australia? Is that Bartlett asked whether the certificate would the intention in terms of how it is going to only be used near the end of the six-month operate? period. That is not right. The certificate there The other aspect, I guess, is could this can only be issued in relation to the circum- definition of uncooperative conduct include stances mentioned in subsection 198D(3), behaviour that has already occurred before and that is the failure to cooperate as outlined this legislation goes through? The easy ex- there. ample to think of is the people that were un- Could this relate to the refusal to leave a cooperative in getting off the boat, I think it vessel such as the Manoora? It would have was the Manoora, at Nauru initially. Would to depend on the circumstances, I would say that type of behaviour come under the defi- to Senator Bartlett. Of course, yes, it could, nition of uncooperative conduct because they but most likely it would not. It would depend were failing to cooperate in relation to their on the circumstances. There may be some detention? Firstly, is that the sort of behav- violence involved in that which could be an iour that would be likely to be seen as unco- aggravating feature. It is really hard to talk in Wednesday, 20 March 2002 SENATE 1173 a hypothetical sense but certainly that is refoulement obligations of Australia, re- something which could come within the moval of a person while such an assessment contemplation of uncooperative behaviour. It was under way would not be likely. I think would depend on the aggravating circum- that removes the first concern that Senator stances. Standard of proof is really one Bartlett had. In relation to the question which is more akin to legal proceedings. This whether, if they were removed in any event, is an administrative situation where the that process would still continue, I will take authority would have to be satisfied that the the question on notice. person was uncooperative and fulfilled the Senator COONEY (Victoria) (10.14 criteria mentioned in that subsection (3) that p.m.)—One of the purposes for which the I have mentioned. It is not a question of there system could bring a person to Australia is to being a case made out as such, but bear in be a witness in a criminal case, most likely a mind that the certificate that could be issued people-smuggling case. You are going to is the subject of an appeal and so the secre- have a witness who is in the custody of the tary would have to be very careful that the Commonwealth—which is bringing these decision was made on the facts concerned proceedings—for a considerable time, and and properly made. also a person in the custody of the Com- Senator BARTLETT (Queensland) monwealth where the Commonwealth can (10.11 p.m.)—I thank the minister. In terms reward or punish that person depending on of the six-month requirement under the enti- what the purport of the evidence of that per- tlement that is in amendment 198C, it states son was. Have you given any thought to that that if someone is brought to Australia under issue? the transitional movement provisions and Senator ELLISON (Western Australia— remains in Australia for a continuous period Minister for Justice and Customs) (10.15 of six months then they can engage the RRT. p.m.)—That would be suborning a witness I have two more questions in relation to that. and that would be very serious indeed. If any Firstly, is the government under any obliga- Commonwealth official made out to a poten- tion to not remove that person from Australia tial witness that his or her case might be in- once their case is being assessed by the RRT, fluenced by the evidence they gave in court, or are they still able to remove them up until that would be a very serious matter. That is the time when a determination is made? Sec- certainly something that the government ondly, in terms of the operation of the six- would abhor and we do not believe there is month provision, is it possible that, if some- anything in this legislation and this proposed one is here for five months and is sent back scheme which would allow that. to Nauru for a day and comes back again, the clock starts again? Given that it says six Senator Cooney—The situation itself is a continuous months, I presume that is one very interesting one, isn’t it? continuous period rather than a cumulative Senator ELLISON—It is an interesting six months. situation. Senator Cooney, I always find your Senator ELLISON (Western Australia— comments interesting. This is something that Minister for Justice and Customs) (10.12 the government sees as necessary. You often p.m.)—To answer the last question first, have, for instance, prisoners in the custody of whether the six-month period is continuous police who give evidence for the defence or could be cumulative, I am advised that it against the prosecution. You find this in the is a continuous period. The first question judicial system. It could be a person who is was: if a person was removed before the in the company of Commonwealth officials RRT had made an assessment, could that and is giving evidence which may or may not assessment still be made by the RRT and the be favourable to the Commonwealth. The person get the benefit of that assessment if it fact is that if anyone was found to be inter- was favourable? I understand there is some fering with the evidence of a witness that question in relation to that and I will seek would be a very serious offence. advice. I am advised that, in view of the non- 1174 SENATE Wednesday, 20 March 2002

Senator COONEY (Victoria) (10.16 be provided that the secretary’s discretion in p.m.)—I think this is what Senator Bartlett relation to non-cooperation certificates will was getting at: this system could only work only be exercised in terms of an independent with the complete goodwill on the part of the assessment, subject to specific guidelines? I department and the secretary. As the legisla- know you have six months at least to draw tion is framed, unless it is done with good- up those guidelines, but could the minister will—even in a beneficial way—it really is indicate that such guidelines will be drawn not going to work as it should, is it? up and be able to be examined? Can the gov- Senator ELLISON (Western Australia— ernment guarantee that the secretary’s use of Minister for Justice and Customs) (10.17 that discretion to issue non-cooperation cer- p.m.)—Not only goodwill but also compe- tificates will not be exercised solely on the tence. That is the point I make about the de- basis of the say-so of private security provid- cision to issue a certificate being subject to ers? A guard from a detention centre may appeal. It certainly could not be done on a report that detainee so-and-so has been ag- whim or a fancy. The action for a prerogative gressive or violent or whatever. Will there be writ would still be available to an agreed further action taken to test claims like those person if the secretary had malice or was by detention centre officers rather than just incompetent in issuing the certificate. relying solely on their word? Will there be an independent investigation of the allegations Senator COONEY (Victoria) (10.17 or the evidence of non-cooperation? p.m.)—If you go by prerogative writ it is going to be very costly. You are asking Senator ELLISON (Western Australia— somebody from outside the system to come Minister for Justice and Customs) (10.21 in and know about prerogative writs and to p.m.)—I think Senator Bartlett is saying that take a process that is likely to be very expen- we have these guidelines in Australia and is sive. That is why I say this has to be done asking whether they will apply in Nauru or with goodwill, because in reality it is an ad- on Manus Island. This bill does not relate to ministrative process, even though in theory detention in Australia. If that is the premise there may be an appeal to the High Court. of Senator Bartlett’s question, then I would leave it there. But in case he does have a Senator BARTLETT (Queensland) concern and wants to follow on with a fur- (10.18 p.m.)—The final aspect I want to go to ther question I can say that detention on on this amendment concerns the six-month Nauru and Manus Island is overseen by the component. This links back to what was be- International Organisation of Migration, ing said earlier about all the people being in IOM. In relation to governance, the jurisdic- detention in Australia and, obviously, for at tions of New Guinea and Nauru apply. It is in least six months for those to whom this that environment that the assessment would amendment applies. They could well have be made of a person’s uncooperative behav- been detained on Manus Island or elsewhere iour or otherwise. The assessment could be for a while before that and, in fact, will have made in relation to behaviour within Austra- been in the initial stages. lia. I understand Senator Bartlett’s question The minister would be aware that there to be whether these guidelines will be trans- has been a number of allegations in relation posing from Australia to Nauru and Manus to the conduct of some private security pro- Island. A different regime applies there be- viders in Australian detention centres. I do cause the IOM is overseeing that in a foreign not want to get into a debate about manda- jurisdiction. tory detention, but I want to refer to how it I think that answers both scenarios in re- will operate because there will be people in lation to Senator Bartlett’s concern. Of detention. The minister has acknowledged course, the authorities would have to rely on there have been a number of claims, which the factual situation. As I said to Senator have not been verified or otherwise, about Cooney, the secretary cannot issue a certifi- provocative and confronting behaviour by cate on a whim or a fancy. I do not see how some private security providers. Will specific guidelines are relevant to the issuing of a guidelines be drawn up and will a guarantee Wednesday, 20 March 2002 SENATE 1175 certificate. That is something that the secre- be made aware of what their legal rights are tary has to satisfy himself or herself of, re- in relation to refugee matters. gardless of whether it is within or outside The other question goes to the issue of Australia. detention in these circumstances. I imagine Senator BARTLETT (Queensland) the minister or, if not him, his advisers would (10.23 p.m.)—In terms of having guidelines be aware that, in the case of A. v. Australia, to assist in coming to a decision about non- the human rights committee came to the cooperation, I do not think it is unrealistic to view that Australia’s policy of detaining have broad guidelines to flesh out the issues asylum seekers was arbitrary within the so you get consistency in determinations of meaning of article 9 of the International what meets uncooperative behaviour ac- Convention on Civil and Political Rights if it cording to the definition here. Refusing to was not for legitimate reasons—namely, lack cooperate in connection with detention can of cooperation or likelihood of absconding. mean pretty much anything. I am not sug- Of course, the government’s response has gesting that it will be used capriciously, but it been that it is for legitimate reasons such as is not very specific. Even refusing to cooper- lack of cooperation. What we have here is a ate with attempts to return could mean a lot power for the secretary to determine whether of things. It does not just mean someone or not someone is being cooperative. By handcuffing themself to the steps on the way omission or non-action that acknowledges up to the plane to prevent them being re- that they are being cooperative. That being moved. It could mean any number of things. the case, if a person who has been in deten- It deals with the issue of thresholds. My tion for at least six months prior to request- question was: will guidelines be drawn up to ing a fresh decision of the RRT is being co- more fully inform the secretary what consti- operative, does that not remove a rationale or tutes uncooperative conduct? I do not think it justification for detention and does that not is uncommon for those sorts of policy guide- make that detention arbitrary because it is lines to be adopted whether for immigration not for legitimate reasons? or social security decisions. Senator ELLISON (Western Australia— This bill relates to detention. The minister Minister for Justice and Customs) (10.27 confirmed, in relation to an earlier question, p.m.)—The government does not share the that these transitory people would, in relation view that Senator Bartlett does in relation to to this amendment, be detained in Australia the case of A. v. Australia that he mentioned. for at least six months because they would be That decision held that the detention of ‘A’ deemed to be unauthorised non-citizens be- was arbitrary, but the policy of the govern- cause they do not have visas. These people ment was not. In any event, the government would be in detention under the provisions of does not agree that the detention of ‘A’ in this bill and because of the status that they that case was arbitrary. Can I say that coop- hold as a result of this bill. Would people erative behaviour or not, the government who were in detention as transitory persons does not agree that the detention, in this case, for six months be advised either before or of a person transitory or otherwise is arbi- when their six months comes up? Would le- trary. We believe that the government is en- gal advice be provided to them stating that titled to have such a policy in relation to they have been here for six months so they people who enter Australia unlawfully and in can apply to the RRT or do they just hope order to protect Australia’s borders and pre- that somebody tells them about it? I would serve the integrity of our migration policy suspect that it would not be likely that people and regime. I think that is a matter of opinion would know about this. I think it is impor- that I will have to agree to disagree with tant, when giving people this right, that they Senator Bartlett on. know about it. There are provisions, as the Senator BARTLETT (Queensland) minister would be well aware, under the act (10.28 p.m.)—I will just make a final com- that actually make it less easy for people to ment on these amendments. There are other amendments to come, of course, and other 1176 SENATE Wednesday, 20 March 2002 questions about the bill as a whole that I When we pass legislation we have to look want to pursue. The Democrats’ attitude to not just at what this government is going to this amendment is obviously to some extent do with it next week but at what a future academic. It has the support of the govern- government might be able to use it for. That ment and opposition. The dangers of these has been the problem with a lot of changes types of amendments are worth commenting that have been made over the last few years: on nonetheless. Quite clearly, it is a positive they operate as the thin end of the wedge. in that at least some people that are here for Once a principle is established then the gov- six months as transitory people will have ernment is able to bring in another similar another avenue open to them that they would provision, apply it to somewhere else and not otherwise have had without this amend- say, ‘This has already been done, so we are ment. They will be able to get an assessment just making it consistent.’ There are plenty of of their case by the RRT. But it does also examples of that. What we are doing here is create a number of precedents, as I outlined introducing a principle where a determina- earlier, such as having to pause for 14 days tion of a person’s refugee status can be halted after notifying the secretary of the depart- by virtue of an unappealable administrative ment. decision of the secretary of the department. I I am not saying a secretary would actively think that is a dangerous precedent. We have go out and try to find reasons but nonetheless a situation where a person can be having this is put in there so the secretary has the their case assessed by the RRT and there is opportunity to ascertain whether or not a no legal provision to prevent that person be- noncooperation certificate may be appropri- ing removed. The government said they ate, and therefore remove the right. He can would not do that and I welcome that but, as remove that right without any appeal except I read it, there is no legal obligation for a to the High Court. So again we have a prece- future government not to remove someone dent where by virtue of an administrative once their assessment is under way. decision of the secretary or their delegate, a That does not apply at the moment. If a decision that is non-appellable except direct person is in Australia, even if they are in de- to the High Court, these rights can be re- tention as an unauthorised non-citizen, if moved. If you accept that as an appropriate they have a case before the RRT then they principle for removal of a right to have a cannot be removed. I am sure the minister refugee status determined, then that is a dan- will confirm that, because it is a source of gerous precedent. great frustration. If they have a case before In response to my question earlier about the High Court they cannot be removed. As I whether or not people could be removed understand it they cannot be removed until from Australia whilst their case was still be- they have exhausted all available avenues, if ing considered by the RRT, the minister said they wish to exhaust them all. Yet here, even that that is not likely and that is not the intent if someone has a case before the RRT, they and the government would not do that. I ac- could be. Again, that is a very dangerous cept his commitment in relation to that and precedent because, once you accept as justi- welcome it, but I had certainly read from his fiable under law that somebody can have answer—he can correct me if I am wrong— made a claim for assessment but that does that there is actually no legal obligation. not require Australia to keep them here, then There may be an obligation under refoule- it is quite a short step to accepting that for ment provisions of the Refugee Convention, every person that has a case before the RRT. but it would be quite within the realms of I am not saying that is this government’s possibility for a future minister or govern- agenda. I am just saying that that is a history ment to argue that they are not engaged be- that we have often seen in relation to aspects cause the person has not been found to be a of the Migration Act. refugee. We have seen plenty of flexible in- We saw it, and it has now been expanded, terpretations of refugee issues in recent with the temporary safe haven visa legisla- years. tion—which people at the time broadly wel- Wednesday, 20 March 2002 SENATE 1177 comed because it meant that people from or in New Guinea, because we have agreed Kosovo could be removed to a safer situa- that we will not leave them there indefinitely. tion. That bill introduced principles that had This then provides the out where we can never been seen before—of people being in bring them back to Australia and have them Australia but not being able to apply for languish here instead. I am not saying the protection; of the minister having absolute government are locking them up, throwing power over whether or not they could stay; away the key and forgetting about them. and of not having any appeal against that They are obviously trying very hard to re- decision of the minister. There were signifi- move them if possible, but the fact is that cant precedents which in many ways we already it is proving very difficult to do so could see flow on to the temporary protec- with some people. This will provide a tion visas that then occurred—because the mechanism for the government to be able to safe haven visas were limited term visas as indefinitely mandatorily detain people who well, completely under the discretion of the will have no access to any sort of legal re- minister. It raises difficulties when an dress other than this provision that has been amendment in some ways ameliorates a put forward in this amendment that has been situation but also introduces precedents that generated thanks to efforts of the Labor may then be used to justify future expansions Party. That is why it is understandable that it of that core principle. It is probably not a could be seen as a positive amendment, but I dilemma for the Senate but it is a dilemma do note the dangers that apply in introducing for me—it does not matter to the Senate be- such new precedents in relation to determi- cause it is going to get through anyway. It is nation of decisions. appropriate to again emphasise why trying to patch up legislation is bad in principle: Question agreed to. amendments often can have unexpected con- Senator BARTLETT (Queensland) sequences down the track, and I think that is (10.38 p.m.)—by leave—I move Democrats not desirable. Be that as it may, the amend- amendments (1) and (2) as circulated earlier: ment is going to get through. (1) Schedule 1, item 3, page 4 (lines 28 to 31), It is worth acknowledging the efforts by omit subsection (7). the opposition, because it is a concern with (2) Schedule 1, item 6, page 6 (lines 5 and 6), the whole bill. The government is saying, omit subsection (2). ‘Well, it is only going to be used in emer- These amendments are fairly straightfor- gency situations or unusual circumstances ward. I will use them to raise some other and it is for as short a time as possible,’ but questions that circle around particular as- because there are no restrictions under the pects of the Migration Legislation Amend- bill there is no prevention of this or a future ment (Transitional Movement) Bill 2002. government being able to bring people into The first item relates to removing a part of Australia under this category of transitional the bill that enables the Minister for Immi- persons with no rights whatsoever and have gration and Multicultural and Indigenous them here for an undetermined length of Affairs not to have to consider any requests time. Given that we have people that have for lifting the bar on transitory people ap- been in detention here in Australia for three plying for a visa. This, again, is another ex- or four years—not a lot, but we have had ample of a precedent that has now become some; we have some currently in detention widespread in the Migration Act: the non- who have been detained for a number of compellable decisions of the minister. The years, in some cases partly because of the minister has the power to make these deci- difficulty of being able to return them to their sions but no-one can force him to even think country of origin—it is quite feasible that about making a decision if he does not want some of these people under this transitional to do so. movement provision could end up in that I am assuming, with these amendments, category as well, languishing indefinitely in that the Labor Party is in a position where it Australian detention centres. We cannot cannot really move and cannot accept them. I leave them languishing indefinitely in Nauru 1178 SENATE Wednesday, 20 March 2002 hope that is not the case and that it can con- whether something is in the public interest, sider these amendments on their merits. But I so I’m not even going to look at it.’ I am not recognise that Senator Sherry is merely the saying that this minister does that. He has a opposition’s representative in this place and stronger record than any of his predecessors in effect has to operate on instructions. I in exercising his power towards people in a would assume that the Labor Party feels it favourable way and waiving some of the has reached an agreement with the minister restrictions that are in the act, so it is not and cannot move from that. I hope that is not specifically aimed at the current minister. the case, as I think the points here are worth The principle of giving a minister such ab- considering. I believe it is about time we solute, total, individual power is very dan- tried to reverse some of these precedents that gerous. It is dangerous, particularly given we put in place in the Migration Act. that it is a power that is exercised basically I will specify the bit that this applies to. outside any review, any sort of transparency As has become clear in this debate, people even. The minister is required to table a who are transitory persons cannot apply for statement saying when he uses it, but he does any sort of visa in Australia. They can apply not have to say—in fact he is not allowed to but it is not valid, to be technically correct, say—who he has used it for; and I am not so they cannot make a valid application. suggesting he should. He is not able to iden- However, if the minister thinks it is in the tify the person in any way. So there is no public interest, he or she can determine that way of determining who has been the benefi- that bar does not apply. In effect, he can ‘lift ciary of the use of this power, and that raises the bar’, which is the jargon that is used, and questions about protections against misuse of he can determine that overall. He can say a power. If you have absolute power to do they can apply for anything. He can say, ‘I’ll something—without review, without appeal, let you apply for a tourist visa, a visitor visa, without any obligations as to whether or not a protection visa or whatever.’ That is purely you use it—there is a danger of misuse as and solely the prerogative of the minister well as non-use of the power. personally. It is a principle that the Democrats believe It cannot be delegated under this legisla- is undesirable. We would prefer to make it tion. It is solely the minister’s power. But— appealable. If the minister has to make a de- and this is the bit that I am seeking to omit— cision that something is in the public interest, the minister does not have a duty to consider there should be a definition of that and it whether to exercise that power regardless of should be able to be appealed if he is ignor- whether he is requested to do so by anybody ing the public interest. But we are not mov- else. This is a provision that is in place in ing that way. We recognise that that is a big- other aspects of the act, and I am sure the ger step to take, given the widespread use of government will use that as a justification. that sort of definition. But at least there They will say, ‘It’s already there; let’s keep it should be a requirement that the minister has and let’s ensure that it operates consistently.’ to consider whether it is appropriate to use That may be the case but, in the Democrats’ the power and whether something is in the view, it should not be there, because it means public interest once it is brought to his atten- we are giving the minister total personal tion. It is not an ideal process—it is an in- power—only he can make the decision that formal administrative process—but the least something is in the public interest and that a that you could expect from it is that if some- person should be allowed to apply for a visa. one has a compelling case the minister of the It is solely in his absolute power. day has to look at it, has to open the enve- His failure to exercise that power cannot lope and read the request. be appealed, and no-one can make him even I would also say that I am not sure this is consider it. No-one can make him even sit an ideal use of a minister’s time. I am not down and divert any of his mind to whether and have never been a minister—and most of it might be in the public interest. The minis- you would suggest that I am not likely ever ter may just decide, ‘I’m not interested in to be one—so I do not profess to know pre- Wednesday, 20 March 2002 SENATE 1179 cisely what takes up the time of a minister, power in former ministers taking up em- but I think it is reasonably likely they are ployment with companies closely related to pretty busy people. So I am not sure it is a their previous activities. terribly good idea for them to have their time This demonstrates that there is potential used up having to make personal decisions— for misuse of ministerial power in all sorts of which they do; they are the only person who ways. Again—not impugning the current can exercise this power—in relation to all minister; in fact he would be one of the least these sorts of applications. The minister of likely to fall for those sorts of dangers, based the day may make his personal decisions by on what I know of him—it is an extra risk. It making a personal decision to ignore all of is extra power. When we give extra power to these requests, which is what some previous the executive, and to a minister in particular, ministers have done in relation to section 417 we have to look at whether it is a good idea. of the act—or it appears that way. We have separation of powers for good rea- The number of requests under section 417 son: to keep these things in balance between of the act that occur nowadays is quite enor- the parliament, the courts and the ministry. mous. I cannot remember the numbers off This basically puts the whole power in the the top of my head, but there is certainly ministry; the courts are out of it and parlia- more than one a day that the minister has to ment is out of it. That is an indication of an consider individually. Potentially—and again undesirable power that is out of the balance. nobody knows—there could be thousands of The amendment does not go all the way to people in Australia under this provision of addressing those concerns, I should ac- the bill. If Nauru falls in a heap, if Manus knowledge, but it does say that if we are go- falls in a heap, if we cannot find anywhere to ing to give this power to a minister the least place the refugees or if we cannot find ways we can do is to make sure that he or she is to send the Iraqis back, we could have quite a obliged to consider using it. That goes to the large number of people in Australia under core of this particular amendment. It would this provision as transitory people, and they be a worthwhile improvement to admit this could be here for some time. You could get section. hundreds of applications going to the minis- ter, who would be the only person who could Senator SHERRY (Tasmania) (10.50 consider exercising the power of it being in p.m.)—In that contribution, Senator Bartlett has put forward the principle of why the the public interest. minister should have any power to award a Apart from the issues of absolute power, visa. I understand that is a power that has this is also not necessarily the role of a min- existed for a long time. My adviser is not ister of the Crown—particularly to have able to tell me the exact date—perhaps the elected officials. Usually, the minister does minister could let us know in his response to not issue visas; the department issues visas. this amendment—but it is a power that has This power is not in issuing a visa; it is ena- been around for many years and perhaps we bling someone to apply for a visa. But it is could find out precisely how many. obviously a very important power in that you do not have a chance of getting a visa if you Senator Bartlett correctly made the obser- are not even allowed to apply for one. So to vation that I am a representational minister in have that sort of power in the hands of this place; this is not my specific portfolio elected officials, or just one elected official, responsibility. Nevertheless, Senator Bartlett, is dangerous. The consequences of that have you may have seen our shadow minister, Ms not been fully understood. It opens dangers Gillard, here a little earlier. I have consulted that need to be acknowledged. I am not im- with her on these amendments; I do not be- pugning in any way the current minister, or lieve they were sent to her office earlier. This indeed previous ministers, but we have is a not a criticism, because I understand the seen—not with this minister but with other time constraints that the Democrats have had ministers in this government—allegations in to act under. I have consulted with her about recent times of pretty dodgy uses of their the three amendments. 1180 SENATE Wednesday, 20 March 2002

With respect to the amendment we are (b) proceedings relating to the status of a tran- considering at the present time, Labor be- sitory person as an unlawful non-citizen lieves the minister needs to be able to award during any part of the ineligibility period; a visa without specifying ahead of time what (c) proceedings relating to the detention of a type it will be, as that would restrict the op- transitory person who is brought to Austra- tions available to the minister—and I believe lia under section 198B, being a detention options have been there for many years. Ba- based on the status of the person as an un- sically, that leaves a capacity to the minister lawful non-citizen; to exercise or not exercise those powers, de- (d) proceedings relating to the removal of a pending on the facts and circumstances of transitory person from Australia under this the case, and for that reason the Labor Party Act. will not be supporting the amendment. That is a pretty comprehensive bar on legal Senator ELLISON (Western Australia— proceedings for transitory people. They are Minister for Justice and Customs) (10.52 cut out of the legal process, pretty much. p.m.)—In answer to Senator Sherry’s ques- They cannot apply for visas; they cannot tion, I believe that non-compellable discre- appeal about anything; they cannot take any tion has been in existence since 1989, when proceedings relating to how they were re- codification was introduced by Senator Ray, strained or removed or the use of force in the then minister. The government believes that activity; they cannot take any action that there is no need to change that. We will, about their migration status at all; and they therefore, be opposing these amendments. cannot take any action about detention issues either. I will speak to my amendment first, Senator BARTLETT (Queensland) but there are other questions germane to that (10.52 p.m.)—I have moved both my part of the bill that I would like to put to the amendments together, but I have only spoken minister. I will resolve my amendment first, to the first one. I have a sense of the likely because it is fairly self-contained. vote, but I would like to speak to my second amendment, just in case people might want My amendment seeks to remove a com- to vote differently on the second one. I think ponent of that power—basically, section this one is rather more important, without 494AB is the section that prevents transitory suggesting that my previous comments were people undertaking any legal proceedings. of no consequence. What follows as part of that is that this sec- tion—that is, this prevention of any legal This amendment goes to the section of the proceedings—has effect despite anything act to do with preventing any legal proceed- else in the Migration Act or any other law. It ings relating to transitory persons. As the puts it outside of and above every other law original explanatory memorandum outlined, in Australia, except, I presume, the Constitu- the amendments proposed by the bill will, tion. That is pretty strong. From recollection, among other things, stop legal proceedings it is already in the act. It was put in the act as being taken in relation to the transitory per- part of the bills that were guillotined through son’s presence in Australia. They also stop last year. Again I talk about precedent: if we legal proceedings in relation to the person once accept the precedent that a provision exercising their powers under section 198B, can apply regardless of any other act in the which says: country in a migration and refugee area, we (1) An officer may, for a temporary purpose, will do it again. We are doing it again, or the bring a transitory person to Australia from a government is trying to do it again here. country or place outside Australia .... It seems pretty clear that, if this has effect (2) The power under subsection (1) includes the despite anything else in the act, it means that, power to ... for example, antidiscrimination legislation (d) use such force as is necessary and rea- does not apply in relation to the exercise of sonable. this power—any sort of legislation relating to Section 494AB prevents: legal rights and proceedings does not apply. Basically, any other law at all does not apply. Wednesday, 20 March 2002 SENATE 1181

This is above the law. Apart from that being The two exceptions are that they will not objectionable in principle, the question you be able to take legal proceedings in relation have to ask is: why? Why does this have to to their transfer to, detention in or removal be above every other law? What law is the from Australia and they will also not be able government worried about it being affected to make a valid visa application within Aus- by? Is there any one in particular, or is it just tralia unless the minister determines it is in a safety net, just to make sure? If so, isn’t the public interest to do so. That transitory that a strange principle, that you exempt person, however, will be able to exercise any yourself from every other law in the country, other legal rights available to them while in just in case? I would appreciate it if the min- Australia. For example, they could take a ister could outline why we have to have such civil action for negligence. So they are not a provision in this bill and in the other sec- precluded from all the other laws, they do tions of the act. I am sure he will, in speaking have certain rights, but there is a limitation in to my amendment. Are there any other spe- relation to those specific matters which I cific laws the government has in mind in have mentioned in relation to section 494AB. exempting this provision or this section from Senator BARTLETT (Queensland) every other law in Australia? As I say, it (11.01 p.m.)—I recognise the minister’s justi- seems a very extreme provision to the fication that this is essential to ensure the Democrats. We would, at least, appreciate integrity of Australia’s border controls. I the minister putting on the record why the must say that justification is being used to government sees it as necessary—or not just justify an awful lot of things these days. The necessary but desirable. integrity of our migration system and the Senator ELLISON (Western Australia— integrity of our border controls will be used Minister for Justice and Customs) (10.59 to justify the budget deficit next. It seems to p.m.)—I think Senator Bartlett cast the net be the mantra to justify any removal of rather widely when he said this excludes it rights. from every other law in the country. I reiter- Senator Sherry—I think it is wearing a ate that the original jurisdiction of the High bit thin. Court remains. The bar on certain legal pro- ceedings is only in relation to those matters Senator BARTLETT—It might be Mr specified in section 494AB. They are speci- Costello’s excuse for his $5 billion gambling fied, and that has been introduced or pro- loss at the rate we are going. I appreciate the posed by the government in order to main- minister’s answer, which clarifies my under- tain the integrity of Australia’s border con- standing, he will be pleased to know, but it trols and to ensure that the transitory per- does not go to the core of my amendments. I son’s presence in Australia is as short as pos- recognise it is only a bar on particular legal sible and that action cannot be taken to delay proceedings. The question I have and it is that person’s removal from Australia. I think why I moved this amendment is: why does I explained earlier why there was a bar to that bar have effect regardless of every other proceedings. law in the country except the High Court under the Constitution? Why is it necessary I might very briefly say that a transitory to make that extra requirement? What laws person will be placed in immigration deten- do the government have in mind that they tion once they enter the Australian migration think might negate the purpose of this provi- zone and become an unlawful non-citizen. sion? It seems to me a very significant extra Any person who is in the Australian migra- provision to put in on principle unless there tion zone without a visa and by virtue of that is a very good reason. fact becomes an unlawful non-citizen must be placed in detention. Except for limited The TEMPORARY CHAIRMAN circumstances, a transitory person will have (Senator Cook)—The question is that the same rights as any other person placed in amendments (1) and (2) on schedule 2483 immigration detention. moved by Senator Bartlett be agreed to. 1182 SENATE Wednesday, 20 March 2002

Senator BARTLETT (Queensland) whether we are going down the right track or (11.02 p.m.)—I note the minister has not re- going even further down the wrong track. In sponded to that one. I am getting a bit tired the meantime, if we are introducing legisla- of standing up and sitting down myself. I tion before we are able to fully inform our- think it is an important principle. It is a selves of the situation it is applying to, it is question I would have asked last year if the prudent to put in place a sunset clause. I do Senate had had a chance to examine the bills not particularly care whether it is the end of properly. The answer the minister gave be- the year rather than 30 June, if people feel fore did not go to this component of the bill. that way, but again I think it is appropriate to I have never been able to ascertain why this have that protection in place. is necessary and I think it is a principle it We have seen before the government would be worth while having on the record make lots of promises and guarantees about from the government, the minister, the repre- how something will operate and what it will sentatives or the officials. It might be a won- do and will not do, particularly in the area of derfully simple reason my humble mind can- law, I might say. The Senate passes things in not get around, but it would be useful to have good faith and then we find out things do not it on the record. Nonetheless, if the minister apply that way at all. I think this bill is an- is not willing to answer, we cannot do much other example. The government is talking as about it. though it is going to be a rare occurrence, it There are some other aspects of the pow- is not going to happen very often, excep- ers to bring transitory persons to Australia I tional circumstances, for as short a time as want to ask some questions on, but in the possible; but there is no definition of what interests of keeping the debate logical we are going to be exceptional circumstances or could just put the question on my amend- what is temporary. At the same time, whether ments and resolve that at least before we it is or is not intended to be used for other move on—as a demonstration I am not just purposes or in other ways, the fact is it pro- chewing up time for fun. vides powers to that effect. It is a wise prin- Question negatived. ciple in such circumstances, when you are giving extended powers to a government or Senator BARTLETT (Queensland) removing rights and powers from individu- (11.04 p.m.)—I move: als, to provide a mechanism to be able to Schedule 1, page 6 (after line 15), at the end of check down the track whether or not it has the Schedule, add: gone according to plan, whether or not it was 7 Cessation of operation of Part a good idea or whether or not it is actually The amendments made by this Schedule cease causing problems that were unanticipated or to operate on 30 June 2002. not revealed at the time. I have a third amendment here which is a If the government is genuine in saying that sunset clause, the nature of which all sena- this legislation is absolutely super urgent and tors would be aware of. I am moving this, I that we have got to sit up until midnight and guess, to test the genuineness of the govern- rush through this, along with a whole lot of ment’s assertions that this is an urgent matter. other legislation, then the least it could do is We still have not heard much of a justifica- to agree to a sunset clause so that there tion from my point of view about why it is would be time for it to be reviewed and so urgent and what the government is expecting that there is a mechanism for forcing it to to happen over the next month or two that implement a more permanent system after makes it urgent. Given particularly that the there has been some genuine scrutiny. I as- Senate has not had an opportunity as yet, sume that even the government—and I even six months down the track, to ade- would think almost all senators—would ac- quately examine the operation of the whole knowledge that there has not been time for Pacific solution, I am hopeful the Senate proper scrutiny of this legislation. As I said, committee that was established will provide we still have not had the chance to properly an opportunity. It may give us a better idea of scrutinise the action and the impacts of the Wednesday, 20 March 2002 SENATE 1183 legislation we passed in the final sitting week Senator SHERRY (Tasmania) (11.11 before the election was called. In those cir- p.m.)—I indicate the opposition’s concerns cumstances, the Senate is continuing to skate about this amendment. On the issue of ur- on thin ice, because we are not sure of the gency, my understanding is that there have full impacts of what we have done, let alone been cases already that fall within that cate- the full impacts of what we are doing here gory, and that is in the area of medical treat- tonight. For that reason, a sunset clause ment. I referred to the ludicrous way in would be desirable, in the Democrats’ view. which one person—and I know there have I note for the record that the Democrats been a number of other cases—was brought moved sunset clause amendments to a num- into Australia and needed medical treatment. ber of the migration bills that were guillo- This bill does go to that category of person, tined through this place leading up to the and it does deal with the issue of medical election, and those amendments were not treatment in a much less absurd way than has accepted. That was a great pity. When the been exercised for the small number of peo- government put up their border protection ple so far who have been brought into Aus- legislation, which was so appalling that even tralia to receive medical treatment. the Labor Party would not support it, we of- Labor believe that it is in everyone’s inter- fered to put a sunset clause on it if it would est not to limit the time period. We do not be passed, which shows that the government know when the Nauru and Manus processing accept the principle that you have to rush will be completed. It is better to be able to through legislation because it is urgent. If bring those people back to Australia if they legislation does significant things, the least need the medical treatment, or if they need to you can do is to provide the ability to see be here to give evidence in people-smuggling how it works by virtue of a sunset clause. It cases, or if they are being transmitted is a proposal the government have made. In through Australia. For those reasons, we will hindsight, whilst their bill was extraordinar- not be supporting the amendment. ily objectionable, we may have ended up Senator ELLISON (Western Australia— with a less appalling outcome than what we Minister for Justice and Customs) (11.12 got: a whole package of bills rushed through p.m.)—I concur with the remarks of Senator about four weeks later. But that is an un- Sherry and I will not take up the Senate’s known, of course. time by repeating them. The government This amendment repeats that offer and opposes this amendment. provides that protection, and I think it is a Senator HARRADINE (Tasmania) sensible amendment for that reason. People (11.13 p.m.)—I support the amendment, for will find it difficult to be sure about how as- the reasons that have been outlined quite pects of this legislation will operate, and the cogently by Senator Bartlett. insertion of a sunset clause provides some protection in relation to that and some ability Senator BARTLETT (Queensland) for the parliament to play a monitoring role (11.13 p.m.)—Further to the situations that rather than just handing over all this power to are likely to apply, which I think were the executive indefinitely. As I said, I would touched on by Senator Sherry rather than by not be overly fussed if the date were to be the minister, I refer to the Bills Digest—and I pushed back a bit. It is 30 June basically be- think the library has done a very good job in cause we do have some sitting days—not getting this out in such a short time, given many, with this government—before 30 the truncated process we have had for con- June. We have a fortnight of sittings before sideration of this. The Bills Digest mentions 30 June, so that would provide opportunity situations where the legislation could apply, for updated legislation—or even the same and it talks about scenarios where agree- legislation if it has been determined that it ments between Australia and nations such as has been working—to be put through and Nauru could break down and other arrange- considered by this chamber. ments would need to be made quickly. It states, ‘Under that scenario, of course, it would not only be ‘transitory persons’ in 1184 SENATE Wednesday, 20 March 2002

Australia who would be affected by the we are passing here it has to be for a tempo- changed circumstances, but the wider class rary purpose, is there a definition of ‘tempo- of asylum-seekers detained offshore.’ rary’ that comes into play? The question I have there is again in rela- Senator ELLISON (Western Australia— tion to the situation in Nauru or PNG. If we Minister for Justice and Customs) (11.17 are reaching a phase, as the minister said p.m.)—No, there is no definition of ‘tempo- earlier, where we are about to get a signifi- rary purpose’. cant number of determinations made—and I Senator BARTLETT (Queensland) am assuming they would be made in the pe- (11.17 p.m.)—I have a question in relation to riod between now and when we come back the determinations that are made in Nauru in May, which is germane to the issue of the and PNG that I think is relevant, given that it urgency of this bill—those people who are goes to what the minister said before about rejected will obviously be on Manus Island how they would already have had determi- or Nauru for a period of time. Is it a potential nations made. I want to clarify what consti- contingency use of this legislation for that tutional authority or other legal authority the group to be brought to Australia at any stage, members of the department are using to to be put into detention here? Is there any make determinations, given that they are in threshold in terms of exceptional circum- another jurisdiction in the case of asylum stances or the reasons why they have to be seekers who are going to be brought here. brought here? Could they be brought here What head of power are those officials oper- because it is administratively convenient? ating under? Obviously, it would need to be with the Bill, as amended, agreed to. permission of Nauru, given that they are in that jurisdiction, but I cannot imagine they Bill reported with amendments; report would object terribly much if we wanted to adopted. bring the refugees to Australia and detain Third Reading them here. So the question I have is whether Senator ELLISON (Western Australia— or not this scenario could engage the use of Minister for Justice and Customs) (11.19 this bill; whether there is any threshold of p.m.)—I move: reasons why the government want to bring That this bill be now read a third time. people to Australia. They have talked about medical emergency and they have talked Senator BARTLETT (Queensland) about criminal trials. Does there need to be a (11.19 p.m.)—Again, as a sign of my coop- reason other than that Australia now thinks it eration, I enabled debate to finish on the Mi- is administratively desirable to bring all the gration Legislation Amendment (Transitional Movement) Bill 2002 so that things can pro- rejected people back to Australia? gress. Obviously, the third reading stage can Senator ELLISON (Western Australia— go for only a limited period of time. I hope Minister for Justice and Customs) (11.16 that is appreciated by the minister because I p.m.)—The answer is no. had many further questions to ask. We have Question negatived. committee hearings coming up in which I The TEMPORARY CHAIRMAN will pursue them further. I also think it is (Senator Cook)—The question is that the appropriate to make a final statement on this bill, as amended, be agreed to. legislation which I will do tomorrow when the debate continues. Senator BARTLETT (Queensland) (11.16 p.m.)—I was just engaging in a side- Debate interrupted. ways conversation with the Manager of Gov- ADJOURNMENT ernment Business, which is probably difficult The ACTING DEPUTY PRESIDENT to do while I still have a question for the (Senator Lightfoot)—Order! It being 11.20 minister. Section 198B talks about ‘tempo- p.m., I propose the question: rary purpose’ but it is not defined, as I see it, That the Senate do now adjourn. as a length of time. Given that under the law Wednesday, 20 March 2002 SENATE 1185

Zimbabwe ple in torture’. As an observer to several UN Senator PAYNE (New South Wales) ballots in East Timor in the past, this is a (11.20 p.m.)—I rise to commend the decision process I understand well and equally abhor. and achievement of Prime Minister John The decision that has been taken is to sus- Howard, the President of South Africa, Mr pend Zimbabwe from the Commonwealth for Thabo Mbeki and the President of Nigeria, a year and to engage Zimbabwe to promote Mr Obasanjo, as the three members of the reconciliation and to address food shortages, Commonwealth chairpersons committee on the need for economic recovery, restoration Zimbabwe. The Zimbabwean elections ear- of the rule of law, future elections and elec- lier this month were clearly marred by a high toral reform. This is an approach which I level of politically motivated violence and believe to be fair and balanced but which did not reflect the will of the electorate. In will require, in my view, energetic monitor- making these remarks, I want to particularly ing. Many commentators expected there note the contribution of our colleague Sena- would not be a suspension. And, of course, tor Alan Ferguson in the matters of public there will be those who would have preferred interest debate today. Anyone who listened that a harsher punishment of the Mugabe to or read those remarks could not have been regime be implemented. But the desperate unmoved and could not have helped feeling economic need and food shortages that exist very compelled by those remarks and by the mean that such action would likely hurt those style and sincerity with which Senator who are, in this case, most disadvantaged. I Ferguson carried out his duties, particularly note today that Switzerland has committed when compared to reports of Mr Rudd. itself to sanctions which may include the Like others in this parliament, I have con- freezing of some Swiss bank accounts and cerned constituents—supporters of and for- other assets. mer residents and citizens of Zimbabwe— The agreement reached between Prime who were very pleased to see Australian ob- Minister Howard and his Nigerian and South servers there and participating in this proc- African counterparts highlights that, contrary ess. There was an overall reduction in the to some reports, the Commonwealth is not number of booths since the parliamentary split along racial lines. Many of the media elections in 2000. Importantly, in the cities of reports promoted this idea post CHOGM in Harare and Bulawayo, booth numbers were Coolum. The reports of the Commonwealth reduced. People in the cities had to contend Observer Group and those of our own par- with voting for three different tiers of gov- ticipants in that group from this parliament ernment, and it was the urban area that had show that there was significant displeasure recorded a strong level of support for the amongst black African observers over the opposition. Resources in rural areas, where way that basic democratic freedoms were support for the Zanu PF was stronger, were denied. I note the question raised by Senator not stretched in the same way. Indeed, booth Bourne in this chamber in question time this numbers were increased in those areas. The afternoon and also note her concerns that extension of time for voting in urban areas some may see the action as an appeasement. was simply ignored by the government. I trust the commitment to a review of the I understand that the news was dominated decisions taken by the Commonwealth by the Zimbabwean Broadcasting Corpora- chairpersons committee on Zimbabwe, at the tion, which it is felt demonstrated significant request of the Commonwealth chairperson in bias towards the president’s party. Govern- office, will allay those concerns somewhat. ment owned ‘Zimpapers’ dominated the print In a situation like this, short of invading a media. The Commonwealth Observer Group country, the options for bringing about for the election has highlighted the fact that change are limited unless you resort to sanc- the Mugabe government fostered the so- tions. With a country as poor as Zimbabwe, I called ministry of youth training program— am not sure whether sanctions do more dam- an obvious militia movement which I think age than good. I think at this stage, in a very Senator Ferguson described as ‘training peo- complex situation, this mix of international 1186 SENATE Wednesday, 20 March 2002 pressure and internal advocacy is an appro- technical assistance. The Commonwealth’s priate course to take. Zimbabwe is suffering Trade and Investment Access Facility has widespread starvation, its inflation rate is helped with practical advice on economic 160 per cent and its unemployment rate is 60 issues and assists small nation states to cope per cent. Applying harsh sanctions is perhaps with multilateral trade processes and surviv- not the best first step. We have a growing ing in the new economy. The organisation commercial relationship with Zimbabwe, but was a key factor in breaking down South it is modest. They are ranked 116th of the Africa’s system of apartheid. In New York countries in the world which import Austra- the Commonwealth Small States Office as- lian goods. So economic sanctions from sists developing member countries with their Australia would probably have little effect. I representation at the United Nations. do note the importance of the Australian de- Given the importance of these programs to cision to contribute $2 million in food aid the prosperity of developing nations, the de- through the World Food Program, which can cision taken today by the Commonwealth only assist in helping the poorest in this area. chairpersons committee on Zimbabwe is a One option available to the international decision which not only is good for Zim- community down the track might be sporting babwean citizens but also will, I hope, rein- sanctions. The cricket tour ban on South Af- force the value of the Commonwealth of Na- rica and the ban on the rugby tour of Fiji had tions for some of the more recent doubters of an effect. There are some who would con- its efficacy and relevance. As the member for tend that the banning of Zimbabwe from Curtin, Julie Bishop—a member of the participating in the Commonwealth Games Commonwealth Observer Group—has later this year might also have an effect. I stated: ‘The Commonwealth response is the understand the Australian Cricket Board is key to steering Zimbabwe back on track.’ persisting with its tour despite today’s travel I am sure that all members of the Senate warning from the government. will recognise that there are those who have I think it is important that the Common- suffered much in their fight to participate in wealth is not seen just as a promoter of the democratic process and will also recog- democratic ideals and a facilitator of free and nise how fortunate we are to participate in a fair elections—though those are two very free and fair democratic process in contrast. important aspects of the Commonwealth’s We hope that the future of Zimbabwe is operation. As a nation we are an active much brighter than its recent past. member and supporter of the modern Com- Telstra: Services monwealth of Nations and value its role in advancing the interests of developing coun- Senator LUNDY (Australian Capital Ter- tries and small states in world affairs, in- ritory) (11.28 p.m.)—Mr Acting Deputy cluding implementing appropriate develop- President Lightfoot, have you ever wondered ment assistance programs. The Common- why your Internet connection is so slow? If wealth has earned a unique profile as an as- so, you are not the only one, because thou- sociation which is dedicated to the promotion sands of Australians share the same frustra- of a set of fundamental political principles of tion. More often than not, the blame for slow enormous importance here—those of democ- Internet connections is levelled at ISPs, mo- racy, good governance and the rule of law— dems or computer configurations. However, and it has made its mark in the pursuit of recent evidence I extracted from Telstra at democratic principles. Senate estimates hearings has shed new light on the mysteries of the world wide wait. It is The Commonwealth’s networks and its Telstra’s fault. Telstra admitted to the exten- interests range very widely and it contributes sive use of pair gain technology, which ef- to immensely diverse issues, like youth af- fectively splits a line into two or more lines. fairs, gender equity, human rights, health and This has the effect of reducing Internet con- education. It has some well-known pro- nection speeds, sometimes significantly. grams. The Commonwealth Fund for Tech- nical Cooperation, not surprisingly, provides Wednesday, 20 March 2002 SENATE 1187

The use of pair gains, according to Telstra, people it is worth exploring Telstra’s moti- has the most common effect of reducing vation for using pair gain technology in the Internet connection speeds to around 26 ki- first place. lobits. ‘So what?’ you ask. For Internet users Public comments from Telstra to date shed who have bought a 56-kilobit modem, this is some light, with Telstra spokespeople une- half the speed that they were looking forward quivocally citing cost cutting as the motiva- to. Far from advising customers of the physi- tion. This would indicate that, as Telstra ti- cal constraints of this pair gain infrastructure, died up their books in preparation for privati- Telstra’s response to consumer complaints sation in the mid-nineties, the company de- about slow Internet connection speeds ap- liberately exploited ways in which they could pears to be to aggressively reject responsi- maximise profits and minimise expenditure. bility and insinuate that ISPs or indeed the Pair gain technology was perfect. There were consumers themselves are responsible. minimal infrastructure costs but rent could be I would like to quote from one of the re- charged on a whole new line, and voila: sponses I have had to the web site survey maximum revenue generation. This has re- that I have done on this issue. From Baulk- cently been reinforced once again as it has ham Hills, the author of this response wrote: come to light that Telstra have again reduced I previously had ADSL and could get speeds their capital expenditure, saying that they up to 56K (via modem) at my previous residence will not make any investments unless they in Baulkam Hills. I then moved two streets round get a return on that investment within two the corner (500 metres away) and lodged a Mov- quarters, or six months. ing Home Telstra application form to relocate my But there is another serious price being existing phone service along with my Telstra ADSL service. My phone service was relocated to paid for Telstra’s cost cutting. This pair gain my new residence (along with the same phone arrangement prevents access to ADSL, a number as before) but I was then told after I relo- technology that allows a broadband type of cated that I couldn’t get ADSL on the new line service to be delivered across the existing and that I could only manage speeds of 26K via a copper network. This exposes, I think, as modem. I was, and still am, furious. I work in the completely farcical the claims of the CEO, IT industry and Internet access is critical to my Ziggy Switkowski, that Telstra is committed own small business and to have a service taken to providing broadband. The use of various away from me after I relocated 500 metres around forms of pair gain technology by Telstra in the corner from where I previously lived) staying pursuit of cost savings on infrastructure, within the same Telstra exchange). I thought Tel- stra’s policy was never to downgrade your service building and maintenance has led to a barrier if you relocate. Well I have been downgraded to a preventing many customers from being able level that is totally unacceptable. I was getting to access ADSL. Not only are customers that faster download speeds 5 years ago using a 14.4K are further away than 3.5 kilometres from an modem when the Internet was just starting out in ADSL enabled exchange unable to access Australia. What can I do? this service, but anyone on a pair gain cannot This is just one example of the close to 1,000 do so either. If Telstra cannot physically de- individual stories I have received from liver this service then no-one else can. So, around Australia on this issue. It is no won- regardless of what line-sharing agreements der that morale in Telstra is low amongst or ACCC declarations are made, no-one else their employees. Telstra management prevent can get an ADSL service to those people; it their employees—the techies and the help is physically impossible. desk staff—from disclosing the existence of There is, effectively, a category of Telstra a pair gain, at least in the first instance. In customers that cannot get ADSL from Telstra estimates Telstra admitted that it is not policy or from anyone else. See if you fit this defi- to fess up and tell customers if they are in nition: firstly, if you are on an exchange that fact on a pair gain and that that could be the has not been upgraded to enable ADSL; sec- reason for their slow Internet connection ondly, if you are outside about a 3.5 kilome- speeds. To appreciate the extent of this farce tre radius of an exchange that has had that and the incredible frustration felt by so many upgrade; thirdly, if you have a pair gain or 1188 SENATE Wednesday, 20 March 2002 are on another type of technology called a (1) You may try providing a different tele- RIM network; and, fourthly, if you do not phone number to see if it is capable of having an qualify for the extended zone subsidies for a ADSL connection, satellite connection. If you fit any one of (2) you might try checking the availability for those categories then you are not able to ac- Big Pond cable, or cess this service that Telstra is spending a lot (3) you may apply for Big Pond satellite con- of money advertising at the moment. There nection, which is an alternative broadband solu- are people in metropolitan, regional and rural tion. Australia affected by these descriptions. Just So, as you can see, Telstra is actually using how many people there are, I do not know. I that disgruntledness to pitch other more ex- have asked these questions of Telstra in rela- pensive services to customers that they have tion to pair gains. They are due to respond failed to deliver ADSL to because of pair very soon and I look forward to their re- gain technology. Clearly, as more and more sponse. In the meantime, my pair gains vic- Australians go online, this legacy of cost tims web site has had an extraordinary re- cutting by Telstra will be more and more sponse and I am pleased to inform the Senate exposed. Telstra have created a rod for their that the Telecommunications Industry Om- own back. Interestingly, they turn yet again budsman is taking a close look at this issue, to the coalition to get bailed out, and the re- as well as the ACCC. cently announced $50 million Internet As- Telstra’s pitiful defence in all of this is sistance Program is going to help Telstra that they provide a service specification, not reach a paltry minimum of 19.2 kilobits con- a bandwidth specification. This means that, nection speed. Taxpayers will be tipping an- provided they do not promise a connection other bucket load of money down the toilet speed, they think it does not matter if they to help Telstra keep providing inferior serv- provide you with a connection that is physi- ices. cally incapable of providing more than, say, Part of this program is a ‘self-help’ site. 14.4 kilobits, 24 kilobits or 28.8 kilobits. This little number offers any number of rea- Given that a voice connection only needs a sons why you may not be able to achieve maximum of 8 kilobits, as I understand it, it optimal speeds on your modem. But, you seems that the degradation of bandwidth be- guessed it, the words ‘pair gain’ cannot be cause of pair gains is only noticed when the found. So it seems the coalition is happy to line is used for a dial-up Internet connection support Telstra hiding the awful truth from and you can actually see the connection its customers. This is not the first time Tel- speed on your computer in the bottom right- stra has benefited from a grant from the coa- hand corner. lition. There have been many, either directly Maybe the market would not mind so or indirectly, under Networking the Nation much if Telstra did not make you pay and such programs. through the nose for alternative solutions like Now we have a picture as to Telstra’s ef- ISDN, cable modem or satellite, which is forts with broadband on the ground at the what they pitch to disgruntled customers grassroots of telecommunications customers, who complain about the lack of bandwidth it is worth comparing that experience with or, in fact, have the good fortune to discover the rhetoric emanating from Ziggy Switkow- that the cause of it is indeed a pair gain. ski himself, most recently at the World Con- Again, I would like to read very briefly from gress on IT in Adelaide. There were several a response that I received through my web aspects of his speech that were noteworthy, site. This is correspondence that a consumer but most disgraceful of all was that he used has received from Telstra. Telstra offered this the example of the jointly funded Launceston person three other options when it was dis- broadband project as a reason why Telstra covered that the consumer was unable to get did not believe there was a demand for ADSL, which were: broadband in Australia. This project was not promoted and, according to Michelle O’Byrne, the local member, any community Wednesday, 20 March 2002 SENATE 1189 members who found out about it would have days, with Chinese clothes and herbal reme- loved to have used it. (Time expired) dies. Buddhism and Taoism were the pre- Ah Toy, Lily vailing faiths. Brown, George In 1931 Lily Ah Toy left school to work in domestic service for 10 shillings a week. Her Senator CROSSIN (Northern Territory) first job was at the Myilly Point residence of (11.38 p.m.)—Tonight I would like to pay Lyle Tivendale, who was a health inspector tribute to two Territorians who in the last five in those times and a senior public servant. months have passed away and have left a She worked there for three years. She would fantastic legacy in the Territory. I believe that probably say that this was one of the better it is my duty to record in this parliament for places she worked in because this was the the annals of history the contribution that place where she met the man who was to they have both made. I refer to Lily Ah Toy, become her husband, Jimmy Ah Toy. Jimmy a famous woman of Chinese descent, and used to come around to the house hawking George Brown, who was the Lord Mayor of vegetables. This is where they met and fi- the City of Darwin. nally married in 1936. Firstly, let me turn to Lily Ah Toy. Fol- They began their married life in Pine lowing her death, our resident historian in Creek, which is about 120 kilometres south Darwin, Peter Forrest, said in the Northern of Darwin, working in Jimmy’s family store Territory News about this fantastic woman: and bakery. For the record, the Pine Creek Lily Ah Toy was a serene and gracious lady. Se- general store is still there a century later. In rene because she had learned how to live through fact, if you go to Pine Creek you must go to the most difficult circumstances; gracious because the Ah Toy store and meet the family. As she she didn’t forget how to be considerate and kind when fortune smiled more kindly on her. mentioned when she spoke to Peter Forrest last year, luckily she did not know about Lily Ah Toy passed away on 15 November honeymoons because once she arrived in last year. With Lily’s death the Territory has Pine Creek she started work straightaway in lost a link with its past. Her story is truly a the bakery while Jimmy worked in the shop. Territorian story, and in telling her story I She said: want to speak about the important contribu- tion that the Chinese community has made to I would work in the bakehouse, cook and get the water from the well and water the garden. Pine the development of Darwin and the Top End. Creek was an interesting place. I have no doubt that in the celebrations of the Chinese New Year that occurred some weeks There were still a lot of prospectors about, and there were still people living in Chinatown. ago there would have been many people of Chinese descent who had a saddened heart They were there until the bombing of Katherine, and who would have thought about Lily Ah then everyone was evacuated. Toy having been with them last year but not Jimmy and Lily’s eldest son, Edward, was this. born in 1937, then Laurence, Joyce and Lily’s father, Wong Yueng, came to the Grace, with sister Elaine born later in Ade- Northern Territory from Hong Kong in the laide. Lily and Jimmy had the only wireless 1880s. In Darwin he married Linoy Moo, in Pine Creek, which was operated from a who was born in Darwin in 1891. So their battery they took out of the truck. She told history and their contribution to the Territory how the people would gather at their place to span more than 100 years. Their daughter listen to what Japan was doing when it in- Wong Woo Len was born in Darwin on 24 vaded China. The family will tell you that October 1917. As a child she began to be they had no idea that the Japanese would called Wu Len, or Lily in English, and was ever get as far as Australia and it was a terri- known as Lily Wong until her marriage. ble shock when they got the air raid warn- Lily’s father was a timber getter and a fencer ings. in the Territory until his death in 1926. Their Eventually they were evacuated from Pine household was a strictly Chinese one in those Creek and taken to Adelaide, where Jimmy worked in the munitions works and then in a 1190 SENATE Wednesday, 20 March 2002 canvas factory. In 1945 they returned to Pine truly does grip you just prior to the wet sea- Creek, but the Ah Toys found that their shop son, or the time he tried to prove to Territori- had been looted and stripped of everything ans and to the police that after one and a half moveable. Despite the severe circumstances bottles of red wine he was still able to drive a in which they returned, they started again— car quite safely. But that was George, and pretty typical of Territorians, who have en- George always gave people a laugh. He was dured so much, such as Cyclone Tracey and one of those characters that the Territory is the Katherine floods some years ago. so well remembered for. Hundreds of people who lived on farms His story, in at least one respect, is the and stations, buffalo shooters and people in story of many Territorians. He came for a camps and mining centres everywhere be- quick visit and fell in love with the tropical tween the East Alligator and Daly Rivers lifestyle. He arrived in the Territory in 1967 were glad the Ah Toys did stay, and they for a golfing weekend and, as I understand it, would be glad about that to this day. Their sent a letter back to his boss saying ‘not store and credit made it possible for life to coming back.’ He never left the place. Within begin again in that region. In 1947 the Ah a couple of years of settling in Darwin, Toys opened a business in Darwin, and George was employed in the parks and gar- Jimmy spent most of his time there while dens division of the Darwin City Council. He Lily managed the Pine Creek store. Jimmy is probably one of the very few people in the died in 1991. Territory, if not in this country, who actually To summarise her life I should say that started working for the city council of which there were many hundreds of people at Lily’s he later became the mayor. He took charge of memorial service who paid tribute not only the Darwin Botanic Gardens, and the deci- to the work that she had done in the Territory sion to name the gardens in his honour, but also to her family. Peter Forrest said: which was done by the Martin government some weeks ago, bears testimony to his cen- Everyone who has known Lily felt a similar per- sonal loss. The Territory has lost a link with its tral role in making the gardens what they are past and a woman who has built bridges to its today. future. On 16 January, the Northern Territory Secondly, I want to pay tribute to George government renamed the Darwin Botanic Brown. George Brown unfortunately passed Gardens in honour of the late Lord Mayor away in Darwin on 8 January this year. A George Brown. They will now be known as ballot was conducted last weekend for the the George Brown Botanic Gardens. During next Lord Mayor of Darwin. Sadly, that his time at the botanical gardens, George election was made necessary because of the began giving advice on a weekly gardening passing of one of the best known people, and show on the radio. He was always keen to a most loved rogue, to have ever held office share his encyclopaedic knowledge of tropi- in Darwin City Council. He had been the cal gardens. His generous spirit and his pas- Lord Mayor for the last 10 years and passed sion for gardens meant that after becoming away after suffering a stroke in his mayoral Lord Mayor he continued to do his show. He office. was hard working and took every opportu- George has been described as a larrikin, a nity to promote the city. I pay tribute to colourful character and a man of the people. Noreen his wife and their children. George While certain aspects of his character had had a vision for Darwin which was green and reached a level of notoriety, it would be a multicultural, and I am sure that when the pity if those anecdotes overshadowed the new mayor takes up his or her office in the underlying nature of a man who had a dis- coming weeks that vision will live on. The tinct vision for Darwin and who pursued it Territory has lost a great personality, a terri- fearlessly. We will never forget the time he fic rogue but someone who certainly had got up on national television and displayed Darwin and the Territory in his heart. his Playboy boxer shorts to prove to every- Senate adjourned at 11.48 p.m. one that, yes, in Darwin, mango madness Wednesday, 20 March 2002 SENATE 1191

DOCUMENTS Tabling Tabling The following documents were tabled by The following government documents the Clerk: were tabled: Airports Act—Regulations—Statutory Advance to the Finance Minister—State- Rules 2002 No. 49. ment and supporting applications for is- Civil Aviation Act—Civil Aviation Regu- sues—February 2002. lations—Civil Aviation Orders—Direc- Australian Communications Authority— tives—Part 105, dated 27 [5] and 28 Feb- National relay service provider perform- ruary; and 6 and 7 [2] March 2002. ance—Report for 2000-01. Defence Act—Determination under section Australian Fisheries Management Author- 58B—Defence Determination 2002/3. ity Selection Committee—Report for 2000- Renewable Energy (Electricity) Act— 01. Regulations—Statutory Rules 2002 No. 48. Australian Sports Commission—Strategic Indexed Lists of Files plan 2002-2005. The following document was tabled pur- Department of Agriculture, Fisheries and suant to the order of the Senate of 30 May Forestry—Report—Innovating rural Aus- 1996 as amended 3 December 1998: tralia: Research and development corpora- tion outcomes, 2001. Indexed lists of departmental and agency files for the period 1 January to 30 June Maritime Industry Finance Company Lim- 2001—Statements of compliance— ited—Report for the period 1 July to 31 December 2001, under clause 9 of the deed Australian Electoral Commission. of grant between the Maritime Industry Fi- Commonwealth Grants Commission. nance Company and the Commonwealth of ComSuper. Australia. Department of Finance and Administra- Productivity Commission—Report—No. tion. 15—Cost recovery by government agen- cies, 16 August 2001—Addendum. Departmental and Agency Contracts States Grants (Primary and Secondary The following documents were tabled pur- Education Assistance) Act 1996—Report suant to the order of the Senate of 20 June on financial assistance granted to each 2001, as amended on 27 September 2001: State in respect of 2000. Departmental and agency contracts—Let- Takeovers Panel—Report for 2000-01. ters of advice— Telecommunications Act 1997—Funding of Department of Industry, Tourism and consumer representation and research in Resources. relation to telecommunications—Report Geoscience Australia. for 2000-01. Industrial Property Australia. 1192 SENATE Wednesday, 20 March 2002

QUESTIONS ON NOTICE The following answers to questions were circulated: Minister for Agriculture, Fisheries and Forestry: Visit to the United States of America (Question No. 12) Senator O’Brien asked the Minister representing the Minister for Agriculture, Fisheries and Forestry, upon notice, on 22 January 2002: With reference to the Minister’s visit to the United States of America (US) in early December 2001: (1) (a) Who travelled with the Minister; (b) what was the cost of the trip; and (c) who met that cost. (2) (a) Who initiated the visit; (b) when was the final decision made to visit the US; and (c) when was the itinerary for the visit finalised. (3) Who did the Minister meet during his visit to the US and what were the times and dates on which each meeting took place. Senator Ian Macdonald—The Minister for Agriculture, Fisheries and Forestry has pro- vided the following answer to the honourable senator’s question: (1) (a) Mr Michael Taylor, Secretary, AFFA Mr Peter Corish, Director, Cotton Australia Mr Keith Perrett, President, Grains Council of Australia Mr Peter Lavery, Chairman, Trade Committee, Australian Dairy Industry Council Mr Lyall Howard, Deputy Director, National Farmers Federation Mr David Whitrow, Senior Adviser, Office of the Hon Warren Truss MP Dr Simon Hearn, Executive Manager, Market Access & Biosecurity, AFFA Mr Allan McKinnon, Special Negotiator for Agriculture, Office of Trade Negotiations, De- partment of Foreign Affairs and Trade (b) The costs for the Minister and his Senior Adviser would normally be available through the Minister for Finance. (c) The Minister’s costs were met by the Department of Finance and Administration. The costs of the Government officials were met by respective Departments (AFFA and DFAT). Partici- pating industry representatives met all of their own costs. (2) (a) The visit was initiated as a result of Government / industry consultations in the Agricultural Trade Consultative Group’s Steering Committee and in consultation with the Australian Em- bassy in Washington and with the Minister and his office. (b) The final decision to proceed with the visit to the US was made on 5 December 2001. (c) The itinerary for the visit was developed over a period of time with some appointments not confirmed until the delegation’s arrival in Washington. (3) The program of meetings during the visit was as follows: In Washington Australian Industry Representatives at 11:00am on Monday, 10 December 2001: Meat and Livestock Australia, AWB Ltd, Australian Dairy Corporation Working lunch with Washington-based Cairns Group Ambassadors at 12:30pm on Monday, 10 December 2001. Mr Mario Castillo, US Dairy Trade Coalition Representative—2:15pm Monday, 10 December 2001. Hon Ann M Veneman, United States Secretary for Agriculture—4:30pm Monday, 10 December 2001. Mr Charles Connor, Special Assistant to the President for Agricultural Trade and Food Assis- tance—9:30am Tuesday 11 December 2001. Hon Ron Kind (D—WI) Member, House of Representatives Committee on Agriculture—2:00pm Tuesday, 11 December 2001. Wednesday, 20 March 2002 SENATE 1193

Hon Charles Grassley (R—IA) Ranking Member, Senate Finance Committee—3pm Tuesday, 11 December 2001. Hon Charles Stenholm (D—TX) Ranking Member, House of Representatives Committee on Agri- culture—11:30am Wednesday, 12 December 2001. In addition, the Minister was the special guest at a reception hosted by the Australia America As- sociation—Washington DC, at the Australian Embassy—6:00pm Tuesday, 11 December 2001. In Chicago Mr Bob Stallman, President, American Farm Bureau Federation (AFBF)—9:30am Thursday, 13 December 2001. United States Farm Bill (Question No. 14) Senator O’Brien asked the Minister representing the Minister for Agriculture, Fisheries and Forestry, upon notice, on 23 January 2002: (1) In 2000 and 2001 on how many occasions did the Minister or his office seek a briefing, or receive a briefing, on proposed assistance to farmers in the United States of America (US) through the US Farm Bill. (2) In 2000 and 2001 on how many occasions was the Minister or his office provided with a briefing, at the initiative of the department, on the proposed assistance to farmers in the US through the US Farm Bill. (3) In each case: (a) what was the nature of the briefing; (b) was the briefing in written form; and (c) on what date was the briefing provided to the Minister or his office. Senator Ian Macdonald—The Minister for Agriculture, Fisheries and Forestry has pro- vided the following answer to the honourable senator’s question: (1) Developments in US agricultural policy have consistently been a high priority for the Minister and the AFFA portfolio including during the previous Administration which significantly increased support to the US farm sector in its last years. The Minister has received briefings as required on US developments including in the lead up to commencement of the new Farm Bill process. The strategy to be employed by the Government concerning the new US Farm Bill through a part- nership with industry was initially recommended to the Minister by the Department in a Minute dated 6 March 2001. Since that time the Minister or his office has continued to receive briefings on a regular basis. These briefings included formal Minutes, oral updates at regular portfolio busi- ness planning meetings and circulation by the Department of Farm Bill Newsletters. Fifteen such briefings have been identified during 2001. This does not include all of the more informal com- munications by email or telephone between the Department and the Minister’s office. (2) See answer to (1). (3) (a) Briefings conveyed updates or factual information about the development of the new Farm Bill in the US Congress and the implications, and where relevant, advised of or recommended re- sponse action. (b) The majority of briefings were in written form. (c) Briefings have been provided regularly since 6 March 2001. Department of Health and Ageing: Freedom of Information Request (Question No. 90) Senator Robert Ray asked the Minister for Health and Ageing, upon notice, on 14 Febru- ary 2002: (1) How many Freedom of Information (FOI) requests were received by the department in the 1999- 2000 financial year. (2) (a) How many of those requests have been finalised; (b) how many are pending; and (c) how many were refused and, in each instance, on what grounds. (3) On how many occasions have costs been waived for the processing of FOI requests. Senator Patterson—The answer to the honourable senator’s question is as follows: 1194 SENATE Wednesday, 20 March 2002

(1) 74 FOI requests were received by the Department in 1999-2000 financial year. (2) As of 30 August 2000, 69 requests had been completed and five were pending. Of the requests completed, 13 requests for access to documents were refused in full and 27 were refused in part. Of the 13 requests for access that were refused, nine requests were refused with reference to mul- tiple exemption provisions of the FOI Act. The most common exemption provisions applied over- all were section 43 (business affairs), section 41 (personal information), section 24A (documents do not exist) and section 40 (documents concerning certain operations of an agency). Other ex- emptions used included section 37 (documents affecting enforcement of law and protection of public safety), section 36 (internal working documents), section 38 (documents to which secrecy provisions of enactments apply), section 12 (documents available through other means), section 33A (Commonwealth/State relations), section 33 (documents affecting national security, defence or international relations), section 25 (information as to existence of certain documents) and sec- tion 24 (requests may be refused in certain cases). Of the 27 requests for access that were refused in part, 21 requests were refused in part with refer- ence to multiple exemption provisions of the FOI Act. The most common exemption provisions applied overall were section 43, section 41 and section 22 (deletion of irrelevant or exempt mate- rial). Other exemptions used included section 36, section 45 (documents containing material ob- tained in confidence), section 40, section 12, section 38, section 42 (documents subject to legal professional privilege) and section 33A. (3) In 17 cases the $30.00 application fee and associated costs were formally waived.