Official Hansard No

COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY DEBATES

SENATE Official Hansard No. 6, 2003 WEDNESDAY, 18 JUNE 2003

FORTIETH PARLIAMENT FIRST SESSION—FIFTH PERIOD

BY AUTHORITY OF THE SENATE

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CONTENTS

WEDNESDAY, 18 JUNE Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2]— In Committee...... 11793 Matters of Public Interest— Queensland Government ...... 11831 Environment: Great Barrier Reef Marine Park Authority ...... 11835 Veterans: TPI Veterans...... 11838 Bull, Mr Tas Ivan...... 11842 Budget 2003-04 ...... 11845 Ministerial Arrangements ...... 11849 Questions Without Notice— Iraq ...... 11849 Howard Government: Senate Powers...... 11851 Distinguished Visitors...... 11852 Questions Without Notice— Iraq ...... 11852 Economy: Performance ...... 11853 Iraq ...... 11855 Housing: Affordability...... 11857 Iraq ...... 11858 Iraq ...... 11859 Foreign Affairs: Travel Advice...... 11860 Health: Disabilty Services ...... 11861 Economy: Business Investment...... 11862 Questions Without Notice: Additional Answers— Manildra Group of Companies...... 11864 Questions Without Notice: Take Note of Answers— Iraq ...... 11864 Notices— Presentation ...... 11870 Committees— Selection of Bills Committee—Report...... 11873 Notices— Postponement ...... 11876 Committees— Rural and Regional Affairs and Transport Legislation Committee—Extension of Time ...... 11876 Joint Standing Committee on Foreign Affairs, Defence and Trade—Meeting...... 11876 Departmental and Agency Contracts ...... 11876 Textbook Subsidy Bill 2003— First Reading ...... 11877 Second Reading...... 11877 Committees— Foreign Affairs, Defence and Trade References Committee—Reference ...... 11880 ASIO, ASIS and DSD Committee—Extension of time...... 11880 Legal and Constitutional References Committee—Meeting...... 11881 Scrutiny of Bills Committee—Report ...... 11881 Documents— Auditor-General’s Reports—Report No. 50 of 2002-03 ...... 11882 Acts Interpretation Amendment (Court Procedures) Bill 2003...... 11883

CONTENTS—continued

Export Market Development Grants Amendment Bill 2003...... 11883 Australian Prudential Regulation Authority Amendment Bill 2003— First Reading ...... 11883 Second Reading...... 11883 Wheat Marketing Amendment Bill 2002— Report of Rural and Regional Affairs and Transport Legislation Committee ...... 11886 Committees— Environment, Communications, Information Technology and the Arts References Committee—Reference ...... 11892 Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2]— In Committee...... 11904 Documents— Health and Ageing: Gene Technology Regulator ...... 11920 Adjournment— Health: Mental Illness ...... 11921 Immigration: Asylum Seekers ...... 11923 Tasmania: Pulp Milling ...... 11926 Military Detention: Australian Citizens...... 11928 Documents— Tabling...... 11930 Tabling...... 11930 Questions on Notice— Taxation: Goods and Services—(Question No. 829) ...... 11931 Defence: Fisheries Management—(Question No. 1237)...... 11931 Education: School Bus Services—(Question No. 1413) ...... 11931 Defence: USAF Global Hawk Program—(Question No. 1432)...... 11932 ComLand: Properties—(Question No. 1434)...... 11932

Wednesday, 18 June 2003 SENATE 11793

Wednesday, 18 June 2003 was intended in the last debate. The sunset ————— clause does not relate to the entire bill. The PRESIDENT (Senator the Hon. Senator NETTLE (New South Wales) Paul Calvert) took the chair at 9.30 a.m., (9.34 a.m.)—It is pertinent that this happens and read prayers. to be the first amendment that we are dealing with today, because over the last couple of AUSTRALIAN SECURITY days we have been told through the media— INTELLIGENCE ORGANISATION and we have heard it consistently from the LEGISLATION AMENDMENT ALP—that today the government is making (TERRORISM) BILL 2002 [No. 2] concessions in response to the demands of In Committee the ALP in relation to civil liberties. Today, Consideration resumed from 17 June. with this first amendment, which the minister Bill—by leave—taken as a whole. describes as a technical amendment about a sunset clause, we are seeing exactly the op- Senator ELLISON (Western Australia— posite. We are seeing here, in the discussion Minister for Justice and Customs) (9.31 of this amendment, the ALP caving in to the a.m.)—by leave—I move government demands of the government—indeed making amendment (63) on sheet RA231 and oppose the bill even worse than the current legisla- clause 4 in the following terms: tion. (2) Clause 4, page 2 (lines 12 to 14), to be opposed. In the bill we have a sunset clause that relates to the whole act. This proposal is to (63) Schedule 1, item 24, page 37 (after line 4), at the end of Division 3, add: make the sunset clause relate only to division 3 of the legislation. We have heard from the 34Y Cessation of effect of Division minister that division 3 deals with the deten- This Division ceases to have effect 3 tion and questioning regime. There are other years after it commences. parts of the bill before us today that, under I table a supplementary explanatory memo- this proposal from the government to limit randum and a revised explanatory memoran- the sunset clause to division 3 of the legisla- dum relating to the government amendments tion, will continue and will not be covered by to this bill. The memorandums were circu- the sunset clause in the format that the gov- lated in the chamber on 17 June 2003. ernment now proposes. Let us look at what These are technical amendments which re- parts of the ASIO bill are not covered by this late to a sunset clause. Clause 4 as it cur- proposal to change the sunset clause just to rently stands has the effect of repealing the deal with division 3. I will walk us through entire bill rather than that part of the bill those parts. Proposed sections 27A and 27D, which relates to detention and questioning. and proposed sections 28 and 29, which re- Therefore, the government proposes with late to the Telecommunications (Intercep- these amendments to make this proposed tion) Act, contain reporting mechanisms. It is new division of the act subject to a three- appropriate that the Australian Greens sup- year sunset clause. Amendment (63) does port those ASIO reporting mechanisms about that with a new division, as I understand it. who is being detained under this legislation, This is a technical problem which arose from and they rightly should continue beyond the drafting. It is not being put forward for any sunset clause for the questioning and deten- reason other than that. It is not a substantive tion regime in division 3. aspect; it is a technical matter to reflect what

CHAMBER 11794 SENATE Wednesday, 18 June 2003

I draw the chamber’s attention to pro- the clause we are talking about today— posed section 23 of the bill. There are other The legislation states that ASIO officers have the definitions at the beginning of the bill that right to do an ordinary search or frisk-search, if will also continue—again, the Australian the minister so determines, of any person at or Greens have no problem with that—but I near a premises, subject to a warrant, if they have will just outline for the chamber what pro- reasonable cause to believe that person may have posed section 23 does. Proposed section 23 some evidence. Let me give a scenario to show gives greater powers to ASIO officers than you how the legislation could be abused. Let us say a warrant is granted to search the Lakemba they have ever had. I am talking outside the mosque and ASIO choose to exercise that warrant questioning and detention regime being pro- at the time of Friday prayer, when there are some posed in division 3 of the bill. Proposed sec- 4,000 people in the room. It is arguable, but ASIO tion 23 is an issue we canvassed extensively could claim that they have reasonable cause to in the committee stage. It deals with giving believe that some of these 4,000 people have ASIO agents the power to carry out personal critical information, and they may be frisk- searches on people who are at the premises searched or have an ordinary search. Furthermore, that is the subject of the warrant: not just at a the legislation has this vague term ‘near’. In the premises that is the subject of the warrant but context of a mosque, what constitutes ‘near’? at or near a premises that is the subject of the Does it include the whole suburb of Lakemba? Does this then give ASIO the right to search any- warrant. So that everyone is clear, we are not one at all, near the mosque? In that context, does looking at the questioning and detention re- that mean the whole suburb? gime put forward in the bill. Separate to that, I have been to the Lakemba mosque several we are looking at additional powers never times for Friday prayers when there have before given to ASIO officers to allow them, been particular occasions, such as the Festi- when entering premises for the purpose of val of Eid and the Festival of Ramadan. carrying out a warrant, to have the ability to Lakemba mosque is a premises perhaps the carry out personal searches. It is limited to size of this chamber. Clearly, 4,000 people personal searches—strip searching, of do not fit into the Lakemba mosque—the course, is dealt with in division 3 of the premises or the building itself. The location bill—and it allows those ASIO officers to of the Lakemba mosque also has an outside carry out personal searches. area where you could fit perhaps another 200 I would now like to take the chamber to people, or maybe a few more, into that space. the Legal and Constitutional References But for Friday prayers, and especially when Committee public hearings of 26 November it is an occasion such as Eid or Ramadan, the in Sydney last year where we dealt with this people who come to Lakemba mosque fill issue at great length. There was a witness the mosque; the outdoor area pertaining to before the committee; his name was Mo- the Lakemba mosque premises; the street, hammed Kadous. He was representing him- which is closed off; and the other premises, self as an individual, with a number of other perhaps sometimes two doors down from the Islamic organisations, at the committee. I Lakemba mosque on either side. So we are would just like to read his concerns with re- talking about 4,000 people fitting into that gard to this legislation. In his opening state- space. ment, he said: This legislation proposes that, if perhaps Apart from anything else this legislation has there has been a phone call made using a some very serious potential loopholes. For exam- mobile phone from Lakemba mosque on Fri- ple, consider clause 23—

CHAMBER Wednesday, 18 June 2003 SENATE 11795 day when prayers are taking place, it gives Kadous, the member of the Islamic commu- ASIO agents the power to search anyone at nity. In questioning of Dennis Richardson, or near the Lakemba premises. That means this issue was raised. I quote my asking for personal searches to be carried out on the Dennis Richardson about this particular mat- 4,000 people far outside the venue of ter that had been raised with the committee: Lakemba mosque—all those people— One of the issues that was raised in that context looking for, in my example, a mobile phone. was the gender of people doing the search. I would like to take us to further evidence They— given to the committee in terms of the con- that is, Mr Kadous— cerns about this personal search proposal in were saying that it is clear that strip-searching proposed section 23 of the bill. On 26 No- needs to be done by people of the same gender. vember, Mr Kadous said: Again, we are not talking about strip- As we have mentioned, if the Muslim commu- searching here; we are talking about personal nity is to bear the brunt of this legislation, one searches. So I clarify that by saying: particular issue relates to searches. Already, the Criminal Code rules for frisk-searches and ordi- It was not so much in the strip-searching; it was nary searches mention that they should, if at all their understanding, as well, that gender was cov- possible, be done by someone of the same gender. ered in strip-searching. It was with regard to That provision does not exist in the legislation— whether ordinary searching and frisk-searching would be carried out by people of the same gen- this is the ASIO legislation he is talking der or not. about— I quote Mr Richardson’s response to this However, it does exist in the Criminal Code. For question: consistency, it would make sense—and it would be beneficial to the Muslim community—if we If that were an issue, it could be clarified, because had the requirement that all frisk-searches and in situations like that there are usually both male ordinary searches, if at all possible, be done by a and female officers present. person of the same gender. So we have the Director-General of the Aus- I would say that is a fairly reasonable request tralian Security Intelligence Organisation that we are hearing from a member of the saying this could be clarified, that we could Islamic community. Where personal searches put in place a requirement that those personal are being done in the context of this legisla- searches be carried out by somebody of the tion, he is making a request that they be done same gender. I have had a look through the by somebody of the same gender. We are not legislation that we received and I have had a talking about strip searches, which clearly, as look through the government amendments we all know, are done by somebody of the that I received about 1 o’clock yesterday— same gender. These are personal frisk we certainly got the ALP amendments much searches done at or near premises on which a later—and I have not found any proposal that warrant is being carried out. The request is follows on from what Dennis Richardson being made that they be carried out by said to the committee on 26 November last somebody of the same gender. year, that it could be clarified that personal I will take you to later in that day when searches would be carried out by somebody ASIO appeared again before the committee of the same gender. and the committee had the opportunity to put I note we are seeing some discussion in to the ASIO officers present this proposal the chamber at the moment between the two that had been put to the committee by Mr parties that have put together the deal on this

CHAMBER 11796 SENATE Wednesday, 18 June 2003 package, and I welcome that. So perhaps in Greens. I do not know whether the Democ- the discussions they could look at the possi- rats got them. bility of that commitment from Dennis Senator Greig—No. Richardson to the committee being included Senator BROWN—I want to know why. in the legislation that is before us today. I This is a democratic chamber and its special will leave it at that at this stage but will point job is review. That review comes from being out again to the Senate that this is the first able to put all legislative moves, not least the amendment we have today in the committee important ones like this, out to the commu- stage of this bill in the context of a series of nity for discussion. The efforts to get these amendments put forward by government, the amendments were repeated through Monday opposition, the Greens and the Democrats. without result. The effect, on the surface of What we are seeing thus far—and we cer- it, is that the government was trying to tainly hope to see this situation rectified in trammel the ability of the Senate to deal with the coming hours—is not, as proposed in the this legislative analysis that we are now un- media over the last few days, a caving in by dertaking in this committee stage. I want an the government to the demands of the ALP explanation from the minister. It is not ac- over civil and political rights but, in fact, the ceptable that amendments to important legis- opposite. We will get to further examples lation like this, which has enormous public today throughout the committee stage where interest, are not circulated, as I believe, we will see this same pattern: rather than it wider than the major parties but certainly to being the government backing down on pro- the parties taking part in this debate. I want posals put forward by the opposition, we will to hear from the minister why that happened. see exactly the opposite. This sunset clause is the first example of an instance where, far Senator ELLISON (Western Australia— from it being a watering down of the legisla- Minister for Justice and Customs) (9.52 tion put forward by the government—(Time a.m.)—I would be interested to know expired) whether the Greens themselves have amendments because we have not seen those, Senator BROWN (Tasmania) (9.49 as I understand it. We cannot consider any a.m.)—Senator Nettle has made a presenta- position of the Greens until we have seen tion and I know the minister will be respond- those. We have been in negotiation with the ing to that in a moment. While he has time to opposition. They had the major contribution think about that, because it is a very good to make to the bill and, as such, being in that point that the senator is making, I want to position, we discussed with the opposition ask the minister this: why did it take till yes- what their concerns were. We have not had terday for the government to circulate the any proposals from the Greens, so we will amendments to the crossbench, or at least to have to consider whatever proposals they put the Greens? We know that the Labor Party up now. Certainly, we circulated our amend- had the government amendments, including ments yesterday. The content of those this one, last week. There were repeated ef- amendments has been publicised well before forts by my office, and I am sure by others, today. Anyone who has been reading the pa- to get the government amendments so that pers would have seen what the government they could be studied and referred to com- was contemplating, and these amendments munity organisations and for legal advice should not take anyone by surprise. On the over the last several days, but the govern- other side of the equation, we have had noth- ment did not give those amendments to the

CHAMBER Wednesday, 18 June 2003 SENATE 11797 ing from the Greens as to what they pro- the detail in this legislation; therefore, it did pose—nothing at all; no amendment. I ask not want it out over the weekend. It did not whether the Greens propose to move any want the experts in law, terror, surveillance amendments and when we can expect to see and the Criminal Code to be able to have them. their input. So it dropped the amendments on Senator BROWN (Tasmania) (9.53 the Senate at the last possible moment. That a.m.)—The Greens’ amendments were circu- is reprehensible behaviour by the govern- lated yesterday and if the Minister for Justice ment. It is deliberate; it is reprehensible. and Customs has had nothing then there is The pathetic response from the minister, some failure in his department. But I am not ‘The Greens’ amendments weren’t in here, going to be diverted by that. This is a gov- so we were tit-tatting with the Greens,’ holds ernment bill. The government is running this no water. We Greens have circulated these country under the imprimatur of this parlia- amendments as soon as we could. But you ment. This parliament is all important. What cannot, from the point of view of the cross- comes out at the end of the day is the bench, adequately design your amendments responsibility of the parliament. On the face until you know what the government is do- of it, the government and this minister have ing. The government dropped these amend- been very seriously selective in the ments on this chamber at the last possible circulation of their amendments. They have minute in order to cut out public debate. This entered into a deal with the Labor Party, as is a government that has put before us legis- Senator Nettle pointed out. Labor has lation which we and many experts outside unanimously decided to go along with the this chamber believe cuts right across centu- government on the bill as now circulated. ries-old civil liberties, basic to our concept of But if you do not get the government freedom and democracy in this country, and amendments—and this is from a rest-of-the- moves a step down that terrible path towards Senate point of view—you cannot draw up a police state, from which this parliament your amendments with the precision that you must defend the people—a grab for power need to have. For example, as Senator Nettle like that from the government. The govern- has pointed out, we did not know until these ment is very clearly manoeuvring to truncate amendments finally surfaced yesterday that debate and the information base on which the sunset clause was going to be so obvi- this debate takes place. That is reprehensible ously reduced. It no longer applies to the bill; behaviour by the government. It is untenable. it applies to part of the bill. We know that the It is just not acceptable. government had that amendment available We will now come to the debate on the days ago but it did not share it with the specific amendments but we are not going to chamber. This is a very serious matter. It is fail in or shirk our duty to take those not the first time it has happened. The gov- amendments and to question the minister on ernment is politically manoeuvring against them. It would help on this particular the interests of the chamber—that is, the amendment, following Senator Nettle’s sub- Senate, elected by the people to review its mission to the committee, if the minister ex- legislation. It is wide open to put an analysis plained exactly, again, in clearer terms, why on that—that is, the government does not it is that he has changed the government’s want this legislation to be a subject of public sunset clause from covering the whole bill to debate. The government does not feel confi- just part of the bill. Indeed, the opposition dent that it can hold up in public debate on might explain themselves. Senator Faulkner

CHAMBER 11798 SENATE Wednesday, 18 June 2003 might explain to the chamber why the oppo- Senator NETTLE (New South Wales) sition have unanimously agreed that ASIO (10.01 a.m.)—I would like to make a short powers will forever and a day be increased comment about the postponement of those under this bill—for example, in the matter of two government amendments to add another being able to arraign and search people in concern that I did not have the opportunity to certain premises. It is very important that we raise before. I appreciate the minister’s understand now that the sunset clause no comment to the chamber that there is a ca- longer applies to the bill. It leaves very im- pacity to move on to deal with some of the portant enhanced powers to ASIO outside the other amendments and to look at the issues I amendment that the government has now have raised. I will read another section of the decided to move. I would like to know this: committee Hansard that deals with this par- did the opposition suggest this amendment or ticular issue, which the government’s adviser has it come from the government? At what is going to look at. I want to ensure that we stage in this congress between the govern- encapsulate all of the concerns of the Austra- ment and the opposition did this particular lian Greens. If I could add these comments, amendment arise? then I would be happy to move on to the fol- Senator ELLISON (Western Australia— lowing amendments to allow time for that Minister for Justice and Customs) (9.59 consideration to occur. a.m.)—This is an amendment which the The issue goes to the lack of a definition government brought about because of a flaw of ‘near’ in the legislation. I will read from in the drafting and, of course, clause 4 pur- the committee Hansard. On that day, there ports to have the sunset clause apply to the were a series of questions and answers be- whole of the bill. The Greens have put up a tween me and Mr Marshall, the legal adviser suggestion in relation to the inclusion in this from ASIO who has been with us in the ad- amendment of other matters. We will con- visers box in the chamber for part of this sider that. It was certainly never the intention debate. I asked Mr Marshall this question: to have the sunset clause cover the entire Another piece of evidence that we heard this bill—that was made very clear last time. Un- morning from one of the Islamic groups was fortunately, the drafting did not depict that about the definition of ‘near’ in terms of searches intention and that is why this amendment, being carried out at a premise or near a premise. which is of a technical nature, has been Do you have any interpretation as to how wide moved—to fix a drafting flaw. It did not that ‘near’ would be defined in the legislation? come about as a result of negotiation with I am now quoting Mr Marshall: the opposition; it was a government amend- ‘Near’ would definitely not include anyone in a ment. As I understand it, the Greens are say- given suburb. I can make that point. I think that ing that we should extend this further. That is was one of the suggestions made. The reference something which we will consider. In view in the bill to that search power is a proposed of that, we will have to revisit these two amendment to section 25 of the existing ASIO amendments. We will leave them aside. I ask Act provisions which enable search of premises. That provision does not have express authorisa- that we move on to the next set of govern- tion to search persons who are on the premises, ment amendments—(3), (4), (23), (24) and and ASIO have always taken a fairly conservative (26). Rather than waste time now, we could view as to our authority under the current provi- come back to it. I move: sion. When the new legislation was being drafted, That the consideration of government amend- the government determined that it would be ap- ments (2) and (63) be postponed. propriate to provide a power for ASIO to conduct

CHAMBER Wednesday, 18 June 2003 SENATE 11799 searches of persons on or near the premises if that particular issue that Mr Marshall raised there was reasonable cause to believe that those in the committee process and provide us with persons would be carrying material relevant to the any answers to questions on notice that may security matter for which the warrant was issued. have subsequently been made available In practice it would require an ASIO officer or a about the way in which ‘near’ is defined in person authorised under the warrant to have a reasonable basis to believe that somebody on the criminal code legislation and how this issue premises had documents or other items in their may be dealt with in regard to this particular possession which were relevant to the purposes piece of legislation. for which the warrant was issued. It would defi- I appreciate the opportunity to raise the is- nitely not enable someone to turn up at a given sue and I am happy to proceed to other building—a public place or a church—and just amendments and I look forward to the gov- say, ‘There are 4,000 people here; we can search ernment coming back and responding to the all of them.’ I would see that as being totally outside the scope of the warrant. Greens on this issue. Again, I reiterate what Senator Brown said previously. Upon receiv- Mr Marshall’s answer continued: ing the government amendments yesterday, I In terms of ‘near’, it is difficult to say whether it sat in the chamber yesterday afternoon and would be 50 metres or two metres away from the read through them and found that we were premises. All I can say is that the inclusion of the dealing with a watered-down sunset clause word ‘near’ was designed to accommodate the fact that a warrant on premises might refer them that did not include this particular extension to, say, a flat number or a unit in a block of flats. of powers to ASIO. We are here today as a A person might be on the stairwell going into or consequence of those amendments being out of the unit and ASIO might have cause to received yesterday. suspect that that person would have items rele- The bill as it stands has a sunset clause in vant to the security matter. My understanding is relation to the whole act. These amendments that that is the particular issue that the inclusion aim to make that sunset clause relate just to of the word ‘near’ was designed to accommodate. division 3 of the act. With respect to the pro- Following that response from Mr Marshall, posal being put forward by the government, my question to him was: there are a number of options regarding ways So that might be something that could be tight- in which we can move forward and deal with ened up. Would you agree to defining how ‘near’ the issues that have come to the attention of might be interpreted? the Greens, and to my attention since I re- Mr Marshall’s response was: ceived the amendments yesterday afternoon. Yes. What I would like to do, if I may, is to take Because a sunset clause exists in the legisla- the remainder of that issue on notice and look to tion as it stands, we have the option to op- see whether or not the search powers that are pose these two government amendments conferred upon other agencies use the same for- which limit the sunset clause. The purpose of mula and whether they have been subject to any a sunset clause is to have a three-year review judicial interpretation in the past. whereby you look at the reporting mecha- I am in the process of following up as to nisms. As I said at the beginning, the Greens whether that question was taken on notice support the reporting mechanisms being able and whether we received any determination to continue beyond the sunset clause pro- as to the definition of ‘near’ in other criminal posed in this bill. And there remains the ca- code legislation or appropriate legislation. If pacity for that to occur: if the amendments we are moving on now to other amendments, currently put by the government are opposed, I would like to ask the minister to look at we can ensure that in three years time the

CHAMBER 11800 SENATE Wednesday, 18 June 2003 reporting mechanisms that we all want to (26) Schedule 1, item 24, page 15 (line 28), omit continue beyond the sunset clause of the bill “is an approved lawyer or”. are able to continue. We also oppose proposed section 34AA in I put to the chamber that there are options schedule 1 in the following terms: on the table now. I am sure the government (6) Schedule 1, item 24, page 7 (lines 15 to 28), has other options, which I am interested to section 34AA to be opposed. hear about, and I am happy to wait to hear These amendments deal with the question of those at an appropriate time when we come lawyer of choice. One of the three aspects I back to the issue. I say for the benefit of the mentioned in the second reading contribu- chamber and those present that we have the tion, which dealt with the amendments that option to oppose the watered-down sunset the government would propose, was the clause that is proposed in this government question of lawyer of choice. The govern- amendment, and that would allow us to stick ment made a considerable concession to the with the sunset clause previously put by the opposition in this matter and has agreed to government in the discussions that occurred permit a person who is subject to a question- in the chamber on 12 and 13 December, ing warrant to be able to choose their own which was the last time this ASIO bill was lawyer. Furthermore, the government will debated. Then, in three years time, we would allow a person being questioned to have ac- have the capacity to ensure that the reporting cess to their lawyer at any stage of the pro- mechanisms, which we all want to see con- ceedings. While it is understandable that a tinue, will continue beyond the sunset clause. person being questioned would want access Question agreed to. to a lawyer of their choice, we have to bal- Senator ELLISON (Western Australia— ance this against the needs of security and Minister for Justice and Customs) (10.08 that, of course, has to be subject to certain a.m.)—by leave—I move: safeguards to protect the safety and the security of the Australian community. There are (3) Schedule 1, item 24, page 6 (lines 29 and circumstances in which there is a belief that 30), omit the definition of approved lawyer. a lawyer may undermine the integrity of the (4) Schedule 1, item 24, page 7 (after line 6), questioning regime by releasing sensitive after the definition of issuing authority, information to those associated with terrorist insert: organisations. This could substantially in- lawyer means a person enrolled as a crease the likelihood of a terrorist attack oc- legal practitioner of a federal court or the Supreme Court of a State or curring and, therefore, defeat the whole pur- Territory. pose of this bill. (23) Schedule 1, item 24, page 13 (lines 9 and The proposed new section 34AA will al- 10), omit “an approved lawyer”, substitute low ASIO to apply to the prescribed author- “a lawyer of the person’s choice”. ity to prevent a person’s access to their (24) Schedule 1, item 24, page 13 (after line 17), choice of legal practitioner. The prescribed at the end of subsection (4), add: authority can then direct that the person will Note 3: A warrant authorising the person not have access to their lawyer of choice. to be taken into custody and One has to remember that a prescribed au- detained must permit the person thority can include a former or an existing to contact a single lawyer of the judge from a state supreme court—county or person’s choice, so the warrant district courts, I think, are also included must identify such a lawyer.

CHAMBER Wednesday, 18 June 2003 SENATE 11801 there—and also the President and Deputy thought that the two-year penalty was not President of the Administrative Appeals Tri- sufficient, and that it should be increased to bunal. So we are dealing with people of five years. When that is coupled with these some standing. The prescribed authority that changes, the government believes that there we are referring to here is not another ASIO will be a balance between not only providing officer or a police officer; it is a person of the individual with their choice of lawyer but some judicial standing and that, we argue, also having the sanction and the safeguard provides a further safeguard. there to ensure that the integrity and the se- In order to prevent access to a lawyer of curity of the process will be maintained. On choice, the prescribed authority must be sat- that basis, I commend these amendments as a isfied that permitting such access could re- package to the committee. sult in a person involved in a terrorism of- Senator BROWN (Tasmania) (10.14 fence being alerted to the investigation or in a.m.)—I have a couple of questions for the the destruction, damage or alteration of a minister. Is it true that the lawyer will not be record or thing that the person may be re- able to take part in the interrogation process quired to produce under the warrant. The but would have to sit aside from that and not subject of the warrant can choose another intervene in the interrogation process? Is it lawyer, but ASIO will have the right to ob- also true that the lawyer would not have ac- ject to any other lawyer chosen by the sub- cess to the reasons for which the person has ject in accordance with the process set out in been detained—that is, the reasons that ASIO the proposed new provisions. Under the gov- has that the person might have information ernment’s proposal, questioning can com- that would help in their inquiries? I will ask mence in the absence of a lawyer. However, those first. I have some more questions but I a person will have a right to a lawyer of will restrict them to those two first. choice at all times, subject to the direction of Senator ELLISON (Western Australia— the prescribed authority on a case being Minister for Justice and Customs) (10.15 made by ASIO for the exclusion of a particu- a.m.)—The role of the legal adviser is to lar nominated lawyer. This means that a per- provide advice to the person who is being son may not be held incommunicado but, as questioned. It is not envisaged that the role with the opposition’s amendments moved of the lawyer is one where the lawyer par- during debate in the Senate last year, the ticipates in the interrogation, obviously not questioning of a person may commence in one where the lawyer would ask questions of the absence of the lawyer. the person being questioned. It is a role of The government also proposes to increase advice to the person who is being ques- the penalty for breach of the current secrecy tioned. So legal advice could be offered but provision, from two years to five years im- certainly there could not be participation in prisonment. The secrecy provision contained the interrogation. Although this is not a sus- in proposed section 34U(7) places a ban on pect regime that we have under the criminal the legal adviser communicating any unau- jurisdiction it is one for gathering intelli- thorised information while the subject is de- gence. Certainly lawyers participate by giv- tained under warrant. That speaks for itself. ing advice to the person but they do not in- Obviously the aspect to guard against is the volve themselves in the interrogation or in question of the legal adviser releasing or di- the giving of answers, for that matter. I am vulging vital information which could be just getting the provision in the bill which gleaned during the questioning. It was deals with that. But at first blush, in relation

CHAMBER 11802 SENATE Wednesday, 18 June 2003 to Senator Brown’s question, that is the pur- son whom ASIO has appealed to has said, pose of the role of the legal adviser. no, they must have a legal representative at Senator BROWN (Tasmania) (10.16 this juncture, the question, which I put ear- a.m.)—I will go to second blush on this lier, is whether that legal representative is question. We have got the situation where a able to say to her or his client: ‘You have journalist or a lawyer or a community repre- been asked this question. My advice to you is sentative has been arrested and is undergoing to answer it with this in mind.’ Is the legal a four-hour period of interrogation— representative going to be able to advise dur- remembering, first of all, the terrible situa- ing the questioning, in response to questions tion in which this interrogation may be tak- coming from the interrogator, what the now ing place without any lawyer at all. As the client of the lawyer should answer, or at least minister has just outlined to the committee, what the client should take into account in ASIO will have the power to veto a person’s answering, a question or not? The minister requested legal representative and to get says that the lawyer will not be able to take questioning under way in the meantime. That part in the interrogation process. Is the law- is very critical because first questioning is yer able to ask the ASIO interrogator ques- going to be aimed right at what ASIO wants tions? Is the lawyer able to give advice after to get from this individual and she or he is questions have been put by that interrogator not going to have their lawyer there and is to her or his client? going to be subject to the full power of an Senator ELLISON (Western Australia— interrogation system totally foreign to the Minister for Justice and Customs) (10.20 usual legal process in our country. a.m.)—Firstly, dealing with the involvement We have got a new situation where people of lawyers, section 34U provides for that in can be questioned—and will be questioned— the bill. I would refer Senator Brown to that. and if you look at this from ASIO’s point of It is quite extensive and detailed in relation view the aim will be to get the questioning in to the involvement of lawyers. Certainly, before legal representatives appear on the without going through it step by step, you scene. That is what the opposition is agreeing can see that it deals with the way that contact to here. As the minister has just said repeat- must be made, that there must be a reason- edly, ASIO can appeal to have a person’s able opportunity provided for the legal ad- legal representative turned down. It would be viser to provide legal advice during the good to know from the minister how far into breaks in questioning. The legal adviser can- the interrogation you can go—into these not intervene in the questioning of the sub- three blocks of eight hours—without a legal ject or address the prescribed authority that is representative being there. It appears on the answering questions. The legal adviser can- face of it that the whole 24 hours of interro- not disrupt proceedings. Certainly the legal gation over a week could take place without adviser is provided with a copy of the war- a legal representative. If that is not the case, I rant for questioning. Subclause (7) deals with would like to know how much of the interro- the obligations of the legal adviser and also gation can take place without a legal repre- with the avenues that the legal adviser can sentative being there. Hours and hours of it, have in relation to making an application to a we know, but how long? registrar of a federal court for the purposes of seeking a remedy relating to the warrant. When the person has got out of that situa- Certain remedies can be pursued there by a tion, because finally the judge or other per- legal adviser. Regulations can also be made

CHAMBER Wednesday, 18 June 2003 SENATE 11803 concerning the making of communication by whether ASIO’s case for the lawyer of choice legal advisers of persons in relation to the being knocked out is appropriate or not. I am questioning or detention of those persons. So certainly interested to know if there are any I think that covers comprehensively the as- guidelines for the prescribed authority in pect of the lawyers being involved. making that decision. I recognise that they Senator Brown also raised the question of make that decision. They often do make what happens if ASIO makes repeated objec- those sorts of decisions. tions to the choice of lawyer. Whilst we have I can imagine a situation whereby a pre- said that questioning can continue in the ab- scribed authority, in whatever form of judge sence of a lawyer, proposed section 34TB, at the time, has a case put to it by ASIO that entitled ‘Questioning person in absence of the first-choice lawyer of the person being lawyer of person’s choice’, would deal with interrogated is not appropriate for whatever that. Before I come to that, the prescribed reasons. Is there any capacity for an alterna- authority has the decision as to whether tive case to be put to the prescribed author- ASIO is successful or not. In the first in- ity? I imagine that, where ASIO comes up stance, it is not just a question of ASIO being with a raft of arguments and a dossier on the able to block the choice—I want to correct lawyer with regard to their connectedness that. The determination of that question does with a whole range of different activities, it not rest with ASIO, it rests with the pre- may be quite difficult for the prescribed au- scribed authority. As I have indicated, the thority to make that judgment without having prescribed authority is someone of some ju- any alternative case put to them. In the con- dicial standing. We would not expect that text of this debate, it may well be quite diffi- you would have a prescribed authority capri- cult for the lawyer of first choice of the per- ciously exercising that power. In relation to son being interrogated to put that alternative the question of what happens if ASIO is suc- case. Perhaps the minister could explain how cessful—let us say ASIO raises an objection that would occur in terms of informing the and is successful in having the prescribed prescribed authority and then making a de- authority say, ‘No, that lawyer is not avail- termination as to whether ASIO’s case was able’—then, as I understand it, the pre- appropriate or not. scribed authority can make a choice himself The other question I have for the minister or herself of a lawyer for the person being relates to the capacity to change lawyers. The questioned if there is no other being offered. minister said that if the prescribed authority So there is that fall-back provision as well. I makes the determination that the lawyer is think that covers the questions that Senator not appropriate, the prescribed authority then Brown asked. I might have missed one. If I determines who should be the lawyer for the have, perhaps he can remind me. person being interrogated. Rather than the Senator NETTLE (New South Wales) person being interrogated getting a second (10.24 a.m.)—I thank the minister for his choice of lawyer, we go to a choice by the answers. On the last issue the minister raised prescribed authority. Perhaps the minister of the capacity for a new lawyer to be put in could correct me if I misunderstood, but I place if the first-choice lawyer of the person thought the minister was quite clearly saying being interrogated is knocked out on request that, if you do not get a first choice of law- by ASIO, it is worth perhaps first noting that yer, you move to the prescribed authority’s I understand the process whereby the pre- choice of lawyer rather than your second scribed authority makes the decision as to choice of lawyer. My other question goes to

CHAMBER 11804 SENATE Wednesday, 18 June 2003 how that would take place. Government a hearing where both sides are argued would, amendment (24), note 3, says: firstly, be time consuming and, secondly, A warrant authorising the person to be taken into would possibly canvass all the issues which custody and detained must permit the person to are subject to the questioning warrant, and contact a single lawyer of the person’s choice, so they would be security matters. It could be the warrant must identify such a lawyer. argued that a lawyer is not a security prob- Could the minister explain—because I am lem. In arguing that, you would have to go not familiar with all of this—if that is a stan- through all the matters of investigation at dard practice in terms of the warrant specify- hand in order to demonstrate your argument. ing the lawyer or if that is in relation to this To have a whole hearing on the lawyer of particular instance, because in this legislation choice where either side advances arguments we allow for the ASIO vetting through the would unduly delay matters and flush out prescribed authority. If there is a change of matters of security. We believe that the cur- lawyer, does that mean a new warrant has to rent situation is sufficient. The prescribed be issued? What is the process under which authority being a person of some judicial that can occur? If, as stipulated in govern- standing is sufficient. ASIO makes its sub- ment amendment (24), we put the name of mission to that person; that person then con- one single lawyer on the warrant, what then siders it. happens if we get no second choice of law- The proposed government amendment yer but the prescribed authority’s choice of (45) deals with proposed clause 34TA, which lawyer? Do we have another warrant being relates to a limit on contact of lawyer of issued with the name of another lawyer on choice. I would draw that to the attention of that warrant? Senator Nettle. In relation to what I said ear- Senator ELLISON (Western Australia— lier, I repeat that where a person chooses a Minister for Justice and Customs) (10.28 lawyer and that person is refused by the pre- a.m.)—Dealing with the last question first, scribed authority—not refused by ASIO; the warrant does not mention the lawyer they can only be refused by the prescribed concerned. What it does say is that the per- authority—and where that person has no son is entitled to a lawyer of choice. At that other choice the prescribed authority can stage it would not be able to say who the intervene and say, ‘Here is a lawyer who can lawyer was, because the person may not help you.’ But if the person has another law- have made the choice of that lawyer. That is yer of choice—a second choice—certainly why the name of the lawyer is not mentioned they can put that forward. There is no ques- in the warrant. That takes away the concern tion that they only get one choice, if that is that if the lawyer is changed there has to be what Senator Nettle was thinking. You can some change to the warrant—that is not so; it have a first, second, third or whatever choice does not follow. you like, and that is no problem. But you In relation to the question of the consid- only have the prescribed authority making eration of lawyer of choice, if ASIO agrees, that decision if the person cannot get their it puts forward the fact that it agrees—no lawyer of choice. It is much like appointing problem. If it has an objection, the prescribed an amicus curiae in relation to proceedings in authority looks at that. There is no subhear- a court where the person does not have a ing, if you like, in relation to that decision lawyer or any choice of a lawyer and the because to go through the choice of lawyer at court provides a lawyer to assist them. That is the reason for the fall-back to the pre-

CHAMBER Wednesday, 18 June 2003 SENATE 11805 scribed authority. But of course that would there is no way in which a person could be not arise where the person had their own interrogated for a block of eight hours with- lawyer of choice. That would be pursued in out having legal representation? I want to the first instance. know from the minister how long a person Senator BROWN (Tasmania) (10.32 can be interrogated. They may be known to a.m.)—We are establishing here from the be an innocent person. They may be a doctor, minister that there will be a kangaroo court a lawyer, a shipwright or a person at a restau- on the lawyer before and while the question- rant who overhears a conversation—I under- ing of the person, who can be a person stand that has made the front page of today’s known to be innocent, takes place. What we Mercury concerning another matter; but have established from the minister is that the these things do happen—who has been taken person’s lawyer can be vetoed by ASIO within off the street and who is under interroga- out having any ability to defend her or tion, and intense interrogation. We know himself before the judge who makes that what the interrogation is going to be like. It decision. Effectively that means that, on the is going to be very intense on this person submission of ASIO using information that who does not have legal representation. How may or may not be true, may or may not be long can that go on? What is the cut-off? It is based on fact and may or may not have va- very important that we have an answer to lidity at all, the lawyer can be knocked out of that because, as I read this legislation, there this process. That is very dangerous legisla- is no cut-off. tion. There is not an appeal process here; the Senator ELLISON (Western Australia— lawyer cannot later go and say, ‘I want to Minister for Justice and Customs) (10.36 know why I have been considered a security a.m.)—Senator Brown has asked a question risk or unable to act in defence of my client.’ in relation to the cut-off, and he is talking I ask the minister: what is to prevent ASIO about the question of rolling objections, if simply vetoing—that is, objecting to the pre- you like, by ASIO. I just want to correct the scribed authority—every lawyer that comes record and Senator Brown on one aspect of forward? Senator Nettle asked the minister: that. He says in one breath that ASIO has the what are the parameters for a successful power of veto and in the next breath that it ASIO submission to the judge against a law- has the power to object. They are two differ- yer? It appears that there are none at all; it is ent meanings. Veto means that your objec- just the say-so of an operative in ASIO. This tion then has the force of knocking out that is very dangerous legislation. lawyer. ASIO does not have a power of This is legislation that cuts away all the veto—let us make that very clear. It has the checks and balances built into our legal sys- power to object only, and to object to the tem, and it does not just affect the innocent prescribed authority. That is all it has. The person who has been arraigned under this normal meaning applied to veto is that you legislation; it affects their legal representa- have the effect of objecting and having that tives, who are effectively stripped of rights objection then carried out to the extent that it that ought to be there. This is supported by is upheld. That is not the case with ASIO and the Labor Party, by the way. We are not go- I want to make that point very clear. ing to get any change to that—that is estab- In relation to the time aspect, that is sub- lished from what the minister has said. But I ject to the authority or determination of the come back to an earlier point: can the minis- prescribed authority. The prescribed author- ter categorically state that under this process ity may say: ‘Look, enough is enough. Go

CHAMBER 11806 SENATE Wednesday, 18 June 2003 back and try and find someone else.’ It is in the person proposes to contact; the hands of the prescribed authority. I note and that we have gone into debate on the contact (iii) a person exercising authority with lawyer of choice. In hindsight, when I under the warrant has had an moved these amendments perhaps I should opportunity to request the also have moved government amendments prescribed authority to direct (15), (16), (25), (38), (40), (41), (45), (46) under section 34TA that the person be prevented from and (48) because we are moving into that contacting the lawyer. area. We can deal with these amendments cognately rather than have to argue all this (16) Schedule 1, item 24, page 11 (lines 12 to 29), omit subsection (3C). again. We can then debate the whole aspect of lawyer of choice and contact with lawyer (25) Schedule 1, item 24, page 13 (after line 17), after subsection (4), insert: of choice. This would tidy things up and it is perhaps something I should have done at the (4A) The warrant may specify times when outset. I seek leave to move those amend- the person is permitted to contact someone identified as a lawyer of the ments. person’s choice by reference to the fact Leave granted. that the times are: Senator ELLISON—by leave—I move (a) while the person is in detention in government amendments (15), (16), (25), connection with the warrant; and (38), (40), (41), (45), (46) and (48) on sheet (b) after: RA231: (i) the person has been brought (15) Schedule 1, item 24, page 11 (lines 5 to 11), before a prescribed authority for omit subsection (3B), substitute: questioning; and (3B) In consenting to the making of a (ii) the person has informed the request to issue a warrant authorising prescribed authority, in the the person to be taken into custody presence of a person exercising immediately, brought before a authority under the warrant, of prescribed authority immediately for the identity of the lawyer whom questioning and detained, the Minister the person proposes to contact; must ensure that the warrant to be and requested is to permit the person to (iii) a person exercising authority contact a single lawyer of the person’s under the warrant has had an choice (subject to section 34TA) at any opportunity to request the time that: prescribed authority to direct (a) is a time while the person is in under section 34TA that the detention in connection with the person be prevented from warrant; and contacting the lawyer. (b) is after: (38) Schedule 1, item 24, page 26 (line 18), omit (i) the person has been brought subparagraph (6)(a)(iii). before a prescribed authority for (40) Schedule 1, item 24, page 27 (lines 15 and questioning; and 16), omit “an approved lawyer at any time (ii) the person has informed the when the person is in custody or”, substitute prescribed authority, in the “a single lawyer of the person’s choice when presence of a person exercising the person is in”. authority under the warrant, of (41) Schedule 1, item 24, page 27 (line 29), omit the identity of the lawyer whom “or (iii)”.

CHAMBER Wednesday, 18 June 2003 SENATE 11807

(45) Schedule 1, item 24, page 31 (after line 28), is present before the prescribed after section 34T, insert: authority. 34TA Limit on contact of lawyer of choice (2) This section does not permit (1) The person (the subject) specified in a questioning of the person by a person warrant issued under section 34D that exercising authority under the warrant meets the requirement in paragraph at a time when a person exercising 34D(2)(b) may be prevented from authority under the warrant is required contacting a particular lawyer of the by another section of this Division not subject’s choice if the prescribed to question the person. authority before whom the subject Example: This section does not permit appears for questioning under the the person to be questioned when a warrant so directs. person exercising authority under the (2) The prescribed authority may so direct warrant is required by section 34H or only if the authority is satisfied that, if section 34HAA to defer questioning the subject is permitted to contact the because an interpreter is not present. lawyer: (46) Schedule 1, item 24, page 32 (line 1), omit (a) a person involved in a terrorism “(whether the adviser is an approved lawyer offence may be alerted that the or not)”. offence is being investigated; or (48) Schedule 1, item 24, page 32 (lines 25 and (b) a record or thing that the person may 26), omit “an approved lawyer other than the be requested in accordance with the legal adviser”, substitute “someone else as a warrant to produce may be legal adviser”. destroyed, damaged or altered. Senator BROWN (Tasmania) (10.39 (3) This section has effect despite a.m.)—The minister has confirmed that there paragraph 34F(9)(a). is no limit. Under this legislation, a person (4) To avoid doubt, subsection (1) does not can be questioned not just for an hour or two prevent the subject from choosing without their lawyer; they can be questioned another lawyer to contact, but the for 24 hours in blocks of eight hours and in subject may be prevented from particular in unbroken blocks of four hours contacting that other lawyer under over a period of a week without legal repre- another application of that subsection. sentation. If that is not possible under the 34TB Questioning person in absence of legislation, the minister should show us lawyer of person’s choice where that is prevented from happening. (1) To avoid doubt, a person before a Worst of all, the minister refers to the pre- prescribed authority for questioning scribed authority. That is an appointed under a warrant issued under section judge—it might be a retired judge or even 34D may be questioned under the somebody from the Administrative Appeals warrant in the absence of a lawyer of the person’s choice. Tribunal—in these secret proceedings who would be able to arbitrate. That is not good Note: As the warrant authorises enough. The minister is saying: ‘We will questioning of the person only while the person is before a abrogate our obligation and give that person prescribed authority, the enormous powers when conducting hearings prescribed authority can control in secret. We will let them work out what whether questioning occurs by they think should be done in terms of a per- controlling whether the person son who has been arrested by ASIO and is now being interrogated by ASIO.’ That

CHAMBER 11808 SENATE Wednesday, 18 June 2003 opens this political system up to an appoint- There is no test. They cannot even test the ment which ultimately has the government’s veto of their lawyer by ASIO through the approval and that person will arbitrate over compliance of an appointed so-called um- the rights of an individual and their legal pire. The umpire is not going to be inde- representation. That is repugnant. That is pendent. The umpire is not authorised to be totally unacceptable. independent. The umpire is not subject to the We have a situation here where, in secret usual scrutiny or appeal. This is extraordi- and out of the view of any help, an innocent nary legislation. How could the Labor Party person can be taken off the street in Australia be supporting it—unanimously? It cuts right because ASIO wants to question them. That across the development of common law in person can be held for a week and interro- this country and indeed before the establish- gated intensely during that time without their ment of the Commonwealth of Australia over legal representative being present and poten- 100 years ago. This is outrageous legislation tially without any legal representation at all. and the opposition is supporting it. We are If the legal representative is there but cannot now getting a rolling input from the judici- intervene during the questioning, which is ary, from the legal experts in this country, something you do not see in any court and warning about the shortcomings of this legis- which is something the police do not have lation. power over in this country, that person can But the more we look at it, the worse it be questioned without any legal representa- gets. Shadowy figures who are unknown to tion. That is up to the decision of some un- the public and not open to the scrutiny of the named person, appointed into that position in media are going to arbitrate this process, be- secret, against an innocent Australian citizen. cause that is not in the bill. The limitation of If you leave legislation open to that scenario, their powers is not in this bill. These unseen that scenario can occur and, given length of judges, no doubt selected over a period of time, it will occur down the line. time because they are compliant with the Just this week, Mr Steve Mark, Chairman intent of the legislation to empower ASIO of the Council of the Australian Section of way beyond anything we have seen in the the International Commission of Jurists, said: past, will hold the reins of what happens to the detainees. No wonder the media organi- Media, Doctors, Lawyers, Counsellors or even other Investigating Officers who are suspected of sations in Australia—commercial as well as having information can be detained and ques- ABC—are objecting to the more repugnant tioned. The proposed amendments— aspects of this legislation. Sure, they are not which Labor has accepted— saying that we do not have to tighten up on security and we do not have to improve our do not solve this problem. methods of defending ourselves against ter- With habeas corpus, which I understand rorism; but this is way beyond the pale. This came in in the 17th century—we have had is not acceptable. three centuries of habeas corpus—the ten- We are caught in an extraordinary situa- dency has been to strengthen it, not to tion in the Senate today where the opposition weaken it. Mr Mark said: is missing in action. They are inactive; they The Bill denies detainees the right to review of are not here. The Labor Party has effectively the substantive basis of their detention through abandoned this debate and has handed it Habeas Corpus. They cannot effectively test the basis of their detention under the new Bill. across to the government of the Hon. Mr Howard to have its way, untested. So it is left

CHAMBER Wednesday, 18 June 2003 SENATE 11809 to the Greens to be taking on the government ahead with their amendments to those on these measures. I feel very frustrated, I amendments. can tell you, because we are seeing here a Senator Faulkner—I rise on a point of historic abrogation of responsibility of oppo- order. I want to be clear what questions are sition to defend the historic rights of Austra- now before the chair. lians to be protected from the excesses of The TEMPORARY CHAIRMAN police while depending upon police, includ- (Senator Collins)—At the moment we have ing ASIO—now effectively becoming a po- government amendments (3), (4), (23), (24) lice organisation—to protect their interests. and (26), government amendment (6) to op- The minister has not been able to adequately pose section 34AA and then further govern- answer the questions I have put to him. In ment amendments (15), (16), (25), (38), (40), fact, he has corroborated the points that (41), (45), (46) and (48). Senator Nettle and I have been putting forward. Senator Faulkner—Is it your intention to call Senator Greig and the opposition to But let us go back a step in this. I asked move the amendments that also appear on the minister, because it is important to this the running sheet? whole process: what is the independent process by which this faceless judge sitting in The TEMPORARY CHAIRMAN—Yes, secret will make determinations about the that was what I sought. advice from ASIO that a lawyer should be Senator GREIG (Western Australia) knocked out? It is indefensible under this (10.50 a.m.)—I move Democrat amendments legislation: the lawyer has no say; the client (15), (16), (17) and (19), on sheet 2953, to has no say. ASIO totally puts the case and those government amendments: prosecutes whether this lawyer is a security (15) Amendment to government amendment risk or not, then this person adjudicates. (15), subclause (3B), after “warrant” (first What are the checks and balances on the ap- occurring), insert “requiring a person to pointment of that person? We know they appear before a prescribed authority for have no direction from the government, questioning, or”. whether it is Labor or Liberal. No direction (16) Amendment to government amendment has been given; there is none in this legisla- (15), after subsection (3B), insert: tion. The minister said earlier in the piece (3BA) If a person is unable to identify or that you are going to have somebody who is engage a single lawyer of the person’s respected and who is going to be beyond choice in accordance with subsection reproach. We all know that that is a theory (3B), the prescribed authority must that in reality is wide open and will be found assist the person by locating a lawyer competent and available to advise in wanting. I ask the minister: how does he as- the circumstances. sure the committee that this is going to be Solomon sitting in secret? (17) Amendment to government amendment (25), after subsection (4A), insert: The TEMPORARY CHAIRMAN (4B) If a person is unable to identify or (Senator Collins)—The question is that the engage a lawyer of choice in amendments be agreed to; however, the gov- accordance with subsection (4A), the ernment has also moved further amend- prescribed authority must assist the ments. I need to clarify with the Democrats person by locating a lawyer competent and the opposition whether they are going and available to advise in the circumstances.

CHAMBER 11810 SENATE Wednesday, 18 June 2003

(19) Amendment to government amendment tioning but not involve themselves in it, and (45), before subsection 34TB(1), insert: would they be permitted to access either a (1A) To avoid doubt, this section must not video or an audio tape of the questioning operate unless a person before a itself? prescribed authority for questioning Senator ELLISON (Western Australia— under a warrant has: Minister for Justice and Customs) (10.52 (a) been informed of his or her right to a.m.)—Starting with the presence of the law- a lawyer of choice or his or her right to assistance from the prescribed yer, certainly it is provided that the lawyer authority to engage a lawyer will be present during questioning so that, if competent and available to advise in the lawyer of choice is approved, that lawyer the circumstances; and sits in for the questioning. There is no provi- (b) exercised a free choice either to sion in the proposed legislation for the law- require the presence of a lawyer of yer to have access to any videotape. That, I choice or for questioning to proceed think, answers two of Senator Greig’s ques- without a lawyer of choice being tions. In relation to the reasons for the refusal present. of the lawyer of choice, the person being (1AB) To avoid doubt, this section must not questioned is not provided with any reasons. operate and questioning must not If there is another question that I have commence, where the person has missed, please remind me. exercised their right to a lawyer of Senator GREIG (Western Australia) choice, before the arrival of the person’s lawyer of choice unless the (10.52 a.m.)—You have answered the ques- prescribed authority is satisfied on tions, Minister. You have replied, but I am application by the Director-General not sure of the reasoning behind it. Why has that there is a threat of an imminent the government drafted the legislation such terrorist act. that a lawyer, who has effectively been ve- Before going into some fuller debate on toed from representing a client or a potential those, I have a couple of questions to the client, is not told specifically of the reason minister in terms of the current debate we are for that, given that there is no appeal? I un- having on the question of legal access. It is derstand that there is no appeal process, so it has been made clear in the legislation and in would not frustrate proceedings or continue discussion here this morning that a lawyer the process of the person being detained who is rejected as being a representative of a and/or questioned. But it seems to me only detainee by the authority has no appeal in fair that, if a practising lawyer is told that respect of that. But are they advised of why they do not meet the specific criteria of the it is that they have not been found accept- legislation in terms of being able to represent able? Are they simply told that they do not a client, there should be good reason for that meet certain criteria in the legislation or are and they should be entitled to know it. they told the specifics as to why they are not Senator ELLISON (Western Australia— acceptable? Secondly, while I understand Minister for Justice and Customs) (10.53 that the lawyer, when approved, is not able to a.m.)—I had understood Senator Greig’s participate in the interrogation in terms of question to be, ‘Would reasons for refusal be questioning either the detainee or the ASIO given to the person questioned?’ which I an- officials, are they in a position to witness the swered. In relation to, ‘Would reasons for questioning? Could they sit in on the ques- refusal be given to the lawyer?’ the answer is

CHAMBER Wednesday, 18 June 2003 SENATE 11811 no, I doubt the lawyer of choice would even being unable to represent their clients in this know that he or she was the lawyer of most extreme circumstance of being arrested, choice. The person being questioned would whether or not innocent, and being interro- say, ‘I want a particular lawyer.’ That would gated. then be put to the prescribed authority and That is police state legislation. I have to ASIO would agree or object. If they agreed, appeal to the opposition again to put a stop to the lawyer would then be notified; if ASIO this. If not, let us hear from the opposition objected, obviously the lawyer would not be how you could possibly justify a process that notified. The prescribed authority would is going to allow this to happen. It is outra- consider the submission and, if the pre- geous. I ask members in here: how would scribed authority then decided against the you like it if ASIO were empowered to have lawyer of choice, certainly the person being a list of politicians who were proscribed questioned would be advised but the lawyer from speaking up on behalf of their constitu- of choice would not be because the lawyer of ents on certain matters—on matters when it choice would not be aware that he or she had becomes absolutely critical that constituents even been subject of choice. be empowered to speak through their politi- In relation to the reasons, I can say that cians to the parliament? That is the analogy. the prescribed authority would indicate to the How would journalists like it if there were person being questioned that, with respect to a secret list kept or an ordinance which pre- the criteria contained in the legislation, a vented them from covering certain issues, refusal had been made for that lawyer of and they were proscribed from being in- choice. The criteria are set out in the legisla- volved? I guess they would find out about it; tion; I referred to them in my reasons for the they would at least have the advantage of amendment—that is, is it likely that the law- knowing they were not able to do their work. yer of choice is going to divulge strategic How would any profession like that? At information? That was just one aspect which arm’s length, we are supposed to have the was looked at. The criteria are set out in the judiciary as a check on legislation—as a legislation. It would simply be, ‘On the crite- check on the executive, if you like. But here ria set out by the legislation as to lawyer of we are having the parliament give the secret choice, I have made a decision that the law- police the ability to keep a list of members of yer of choice be refused.’ That would be the the legal profession who are proscribed, ef- extent of it. fectively—and they have no appeal. They do Senator BROWN (Tasmania) (10.55 not even know that they are listed. a.m.)—What we have here is the establish- You can argue, and we all will argue to ment by ASIO of a register of lawyers who varying degrees, that we need stronger laws are not of choice, the establishment of a se- to defend the rights of Australians to a peace- cret list of Australian lawyers who are ac- ful and safe environment. But this is outside credited by the courts of this country but that; this is beyond the pale. I ask the opposi- who are not able to represent their clients tion and I ask Senator Faulkner: how do you under this legislation, in this extreme cir- justify having a system here which allows, in cumstance. There is no appeal and there will secret, names of members of the legal pro- be no publication of that list. So an unknown fession to be kept which proscribes them number of Australian solicitors and barristers from being able to be involved in protecting are going to be listed by ASIO, without their their clients when it gets to this sort of situa- knowledge or anybody else’s knowledge, as

CHAMBER 11812 SENATE Wednesday, 18 June 2003 tion? I point out again that it is part of a pro- needs standing up against, that this bill is a gram which was quite deliberately drawn backdoor concession to all the things we up—this legislation has been drawn up with want to defend ourselves from—that is, ter- great intent—to deny people access to strong rorists and the erosion of our way of our legal representation at a moment when they life—that this bill does not have the potential will need it more than ever in their lives. to reap the rewards that the government is I go back to Mr Steve Mark, the Chairman touting for it, and that this bill is a serious of the Council of the Australian Section of loss for the Australian community. Surely the the International Commission of Jurists. Labor Party cannot go all the way with Within the last week, the following was re- Prime Minister Howard in the abrogation of ported: the rights of Australians that is being uncov- ered in this committee debate. ‘The Bill’s compulsion to answer questions is unlikely to draw information from anyone in- Senator FAULKNER (New South volved in terrorist offences; why would a terrorist Wales—Leader of the Opposition in the Sen- bother to answer truthfully. The Bill must be tar- ate) (11.03 a.m.)—by leave—I move opposi- geted at other members of the community,’ said tion amendments (7), (8) and (9) on sheet Mr Mark. ‘The police and ASIO currently have 2953: practical powers to deal with security threats. No useful information is likely to come from the ex- (7) Government amendment (45), subsection ercise of this power.’ 34TA(2), after “satisfied”, insert “, on the basis of circumstances relating to that Down the line, the bill will put innocent, lawyer,”. law-abiding citizens on the rack without le- (8) Government amendment (45), paragraph gal defence. But, as Mr Mark points out, it is 34TA(2)(a), after “may”, insert “, as a real simply another challenge. If a terrorist is possibility,”. pulled in by this legislation they will deal (9) Government amendment (45), paragraph with it, using all the subterfuge and so on 34TA(2)(b), after “may” (second occurring), available to them. We already have the pow- insert “, as a real possibility,”. ers to deal with the plotters—very strong These amendments provide that any objec- police and surveillance powers—but this tion by ASIO to the presence of a particular legislation is threatening people who do not lawyer is focused on the lawyer in question. I fit into that category. In fact, it is threatening say to the committee that these particular everybody. ASIO determines whom they are amendments are technical in their nature but going to pick up off the street, ASIO deter- they do strengthen the operation of the ASIO mines whether they will have the legal repre- bill. sentation they want, ASIO is going to determine which Australian barristers and solici- When I spoke on the ASIO bill in Decem- tors are proscribed from taking any part in ber 2002, I stated that the opposition sup- this process, and a faceless judge is going to ported significant changes to guarantee ac- determine whether she or he is going to go cess to legal advice. Those changes were, along with ASIO on this. you may recall, that a person being questioned should have the right to legal It is terribly wrong. I again appeal to the representation of their own choice. That has opposition to stop it. I appeal to the opposi- been achieved. Accepting that certain tion to recognise that this process is far be- lawyers might prejudice an investigation, yond the ethic of the Australian Labor Party, which is something that the opposition have that this bill is rotten to the core, that this bill accepted may be the case, we have said in that circumstance, provided that the CHAMBER Wednesday, 18 June 2003 SENATE 11813 cumstance, provided that the prescribed au- great deal of difference in terms of both the thority is satisfied, on application by ASIO a parliament’s and the public’s understanding person could be denied a lawyer of first of the number of times these provisions have choice. And that has been achieved. been used in any annualised period. I do not I do think it is important to remember that expect it to be a significant number of occa- so many of these decisions that have been sions at all—and I do not think many in this spoken about in recent contributions to this committee would expect that either—but committee stage debate are not decisions those statistics are important and it is impor- made by ASIO; they are decisions made by tant that they be provided to the public and the prescribed authority. Of course they may be presented in formal reports to the parlia- be decisions made by the prescribed author- ment. ity on application to the prescribed authority These technical amendments that I am by ASIO, and that is why it is so important, moving regarding legal advice are important as the opposition has argued for such a long enhancements. I commend the amendments time, that the prescribed authority must be a to the chamber. When these matters are being person of real standing. That is why we ar- considered, it might be the will of the com- gued so strongly that it was appropriate that mittee that they be dealt with separately. I judges and retired judges fulfil that very im- might progress that issue a little later in the portant role. committee stage when attitudes to those I hear the criticism that is made by Sena- amendments become clear. In other words, I tor Brown that the prescribed is a ‘faceless might request to put those questions sepa- judge’. They are the words that Senator rately to the committee. Brown has used. It might be valuable for the Senator ELLISON (Western Australia— minister to outline to the committee, as a Minister for Justice and Customs) (11.10 result of important opposition amendments a.m.)—In relation to opposition amendments which go to a range of review mechanisms (7), (8) and (9), on behalf of the government for these new provisions in the ASIO act, I can say that we support opposition amend- what reporting mechanisms will be made in ment (7), which seeks to clarify that the pre- relation to the so-called faceless judge in scribed authority may only give a direction ASIO’s annual report to parliament. That preventing an interview subject from con- might be useful. tacting a particular lawyer of their choice ‘on As we look at all these provisions, I think the basis of circumstances relating to that we have to keep in mind those very impor- lawyer’. That was indeed our intention in tant review mechanisms that I have spoken drafting the provision and, while we think it about at some length previously: the sunset is implicit in the bill, we have no objection to clause, the review by the Joint Parliamentary making the qualification explicit to remove Committee on ASIO, ASIS and DSD and the any doubt. The government has no problem important review of these provisions by that with that amendment by the opposition, and committee, and also, of course, the enhanced no doubt that should be dealt with separately reporting requirements in relation to these from the others. particular provisions in ASIO’s annual re- We do not support opposition amendments port. It is a very significant change to this (8) and (9), which require the prescribed au- bill and they are very important review thority to make an assessment of whether mechanisms. They will, in my view, make a there is ‘a real possibility’ that, in contacting

CHAMBER 11814 SENATE Wednesday, 18 June 2003 a particular lawyer, a person involved in a (2) The warrant must, in the same terms as the terrorism offence may be alerted that the of- draft warrant given to the issuing authority as part fence is being investigated or that a relevant of the request, either: record or thing may be destroyed, damaged (a) require a specified person to appear before or altered. The government says that the in- a prescribed authority for questioning under the sertion of this concept of ‘a real possibility’ warrant immediately after the person is notified does not add anything to the section, which of the issue of the warrant, or at a time specified in the warrant; already stipulates that the prescribed authority must be satisfied of relevant conditions. So that is the number of warrants that meet The government is already proposing an ar- that requirement, then there is the number of rangement for the provision of a lawyer of hours that each person appeared before a choice with a range of safeguards, as I have prescribed authority for questioning—that mentioned, to protect the disclosure of sensi- covers the questioning arrangements—the tive information. Under these arrangements, total number of warrants that fall into while the prescribed authority may direct 34D(2)(b), which provides for warrants that the subject may not have access to their which provide for people to be taken into lawyer of choice, the subject of a warrant can custody and be brought before a prescribed then choose another lawyer. But, certainly, authority and detained; the following number when you look at proposed section 34TA, the of hours that people appeared before the pre- situation is outlined as to the criteria that is scribed authority; and, finally, the number of to be exercised by the prescribed authority. times each prescribed authority had persons To include the words ‘real possibility’ we do appear for questioning before him or her un- not believe really adds to anything. In fact, der warrants issued during the year. Of the insertion of that term could add further course we do not want to identify anyone complication. that was questioned or brought in, and that is outlined specifically in that section. In relation to the Democrat amendments, Senator Greig asked me some questions. I do There is no provision for mention of the not think we have yet had the arguments in prescribed authority’s identifying them but I support of those amendments from the De- think that is really something which you mocrats. I will reserve the government’s ar- would not want to widely disseminate, for guments on those until Senator Greig has put security reasons. Suffice to say that your pre- up his arguments for those amendments. In scribed authority has been outlined and relation to the report that Senator Faulkner stated by me to be a person who is a former mentioned, clause 27A outlines the situation judge—a Supreme or County or District in relation to ASIO’s report. It says that ‘the Court judge of a state jurisdiction or the report must include a statement’ and it goes president or the deputy president of the Ad- through the total number of requests made ministrative Appeals Tribunal. People in par- under sections 34C and 34D. That is in rela- liament and others who want to take a close tion to the question of the warrants which interest in this can find out who those people can be issued, so you have the total number are but to put that in a report and to pointedly of requests that have been made for these advertise who is a prescribed authority we warrants and the total number of warrants believe is not desirable for the purposes of that in fact are issued—because some might security. We know that in our courts there are not be granted—that meet the requirement in Family Court judges and Federal Court paragraph 34D(2), which says: judges and that they have been appointed.

CHAMBER Wednesday, 18 June 2003 SENATE 11815

We do not necessarily advertise in annual mechanism—and the opposition supports it! reports who they are or where they live. Peo- I know there are some amendments from the ple know who they are: these prescribed au- Labor Party but they do not get rid of the thorities are drawn from a pool of people core problem here. Anyway, the Labor Party who are well known. We do not think that said it is going to keel over if the government adding it to a report is going to add any extra objects to the amendments. So it is a com- aspect of scrutiny or accountability, and you bined government-opposition amendment to have to balance that against alerting people bring in this system of faceless judges, and who might other undesirable motives for where will it go to from here? knowing that. We do not think it is appropri- This is an extraordinary situation. We are ate. not dealing with known terrorists or people Senator BROWN (Tasmania) (11.18 plotting terrorism here; we are dealing with a.m.)—So we have the faceless judge. So we Australians who may have information, and have the judge appointed by the minister—a frontline in the sights of ASIO are going to politically appointed judge; nobody else can be journalists and/or politicians because they appoint this person—put in control of this tend to pick up information from the com- secret process dealing with Australians who munity at a greater rate than the average. The have done no wrong and are without legal concern is: what is the power of this faceless representation of their choice for extended person appointed by the minister of the gov- periods of time—maybe the whole 24 hours ernment of the day? They are disempowered of interrogation over a week with no legal in terms of having access to the normal input representation at all—and the only evidence that is required to make a judgment. Coming that this faceless judge has as to whether le- back to Mr Mark of the International Com- gal representation of choice should be given mission of Jurists, he says: to this person or not comes from ASIO. The change in the Bill allowing a “lawyer of There is no appeal mechanism, there is no choice” is a false gift. The lawyers will still be balance of argument and there is no balanc- limited in what they may do during questioning ing of evidence. My submission would be and the Prescribed Authority— that any judge who put herself or himself in that is, the faceless judge— this position, under this law from the gov- will still have little power to control the question- ernment and the ALP, would be in a very ing which is before them … A retired judge is invidious position indeed where the whole unlikely to be available in many areas of Australia concept of natural justice is out the window. and at many different times during a given week. I remind you, Temporary Chair, and I re- I ask the minister if he would be good mind the committee that we are dealing with enough to outline the powers of the judge to Australian citizens who may or may not have intervene on the questioning of this, let us information—it is up to ASIO to judge. say, journalist who has been brought in. I ASIO become the police, the surveillance also ask the minister to say what the required authority, the arresting agent, the interrogator qualifications of the ASIO officer are in that and effectively the judge, because it is only questioning process. Do they have to have their evidence that is allowed. They judge legal qualifications? Do they have to be which information comes, and which infor- skilled in the norms of justice in the Austra- mation does not come, before this disem- lian system? Do they have to have any back- powered faceless person—no appeal, no ground at all? Or is it that just any ASIO op- other point of view. It is a police state erative who gets into this position can go

CHAMBER 11816 SENATE Wednesday, 18 June 2003 into the interrogation process? Seeing as we further than the Malaysian Internal Security have this person without their legal represen- Act with regard to restricting access to law- tation and without a judge acting in a court— yers. Why is it that this legislation was as is required in Canada for example—under passed unanimously by the caucus of the legislation covering this territory, what are Australian Labor Party, with members say- the restrictions? Are there any restrictions, ing, ‘Me too! We are prepared to support this short of physical violence, of the ASIO inter- legislation right through’? rogator on this hapless citizen hauled in off As I mentioned when we began this de- the street, wondering what on earth has hap- bate, this is not about the government caving pened to them and not being told why they in to proposals put forward by the Labor have been arrested and are going to be kept Party. No, I am sorry; it is actually the oppo- for seven days? site of that. We saw that this morning. There Senator NETTLE (New South Wales) are examples in this legislation that relate to (11.23 a.m.)—Senator Brown has raised a the sunset clause whereby the opposition range of serious questions, and I look for- came out loudly and strongly and said, ‘We ward to hearing the minister’s response to want a sunset clause in this legislation.’ Yes- that and any contribution that the opposition terday afternoon when we got that bill it was may have with regard to their ability to sup- not there. We do not have a sunset clause for port a bill that undermines the fundamental this bill. The government, through a deal tenets of our legal system, going right back with the opposition, are proposing a sunset to the Magna Carta, which was mentioned in clause only for division 3 of this bill—for a the dissenting report by Senator Brown and part of this bill. That is what we are discuss- former Senator Cooney in relation to this ing here today. We are discussing why the legislation when it was first sent to a particu- two major parties in this chamber think it is lar committee. In their dissenting report they appropriate to come together and to under- pointed out that the principles that this bill mine the fundamental civil and political seeks to undermine go right back to the rights of citizens under a legal system that Magna Carta, something that has again been goes back to the Magna Carta, that has ex- raised in the debate since then. isted in Western democracies around the As others said yesterday, it would be in- world. They are very important questions teresting to hear the views of a range of peo- that we need to hear answered by those pre- ple in the opposition. Former Senator sent in the chamber—by the opposition. Cooney would be one of those who, I imag- We did not hear those answers in the sec- ine, like many in the community, has perhaps ond reading debate on this bill yesterday. given support to the opposition in the past Senator Faulkner spoke for 20 minutes about and who would be interested to know about why the Labor Party thought they had got a this proposal of the opposition to support the good deal. We did not hear from any other government’s legislation, the most draconian member of the ALP caucus as to why they piece of legislation that we have seen with thought it was appropriate for this legislation regard to civil liberties not just in this coun- to unanimously go through and for them to try but indeed going further than similar leg- jump into ‘me tooism’ with the Howard gov- islation brought in in other Western democ- ernment. We did not hear from any of the racies and going further than officers of the ALP senators who have been involved in the CIA or MI5 could ever hope for. This is leg- Legal and Constitutional References Com- islation that, when it was first drafted, went mittee process—and not just that committee

CHAMBER Wednesday, 18 June 2003 SENATE 11817 but the joint defence committee. We did not ... to kidnap people, hold them for a week and hear from any of those people who have question them in order to fill in gaps in our intel- been involved in that process as to why they ligence files. thought it was appropriate to back down on He continued: the principles that they have spoken of on We’ve criticised apartheid South Africa, Stalinist each of those committees on the three occa- Russia, Pinochet’s Chile and countless other re- sions that this legislation has been reviewed. gimes for doing just this ... It violates everything Each of those committees has come out and that makes us a dignified and democratic nation. said that it is not appropriate, and that it is an These are the words of Cameron Murphy abrogation of fundamental human rights. We from the Council for Civil Liberties. These did not hear from any of those senators. are the words that need to be heard by the We heard about the comments of the opposition in this chamber. The community member for Banks from a government sena- have been expressing outrage about this leg- tor who rose to read the comments that the islation since it was first introduced and pro- member for Banks had made in the other posed by the government. The community place. He told the Senate that the comments have mounted a public campaign that we from the member for Banks related to the have seen over months calling on the Austra- need to ensure that we did not undermine lian Labor Party not to cave in and not to civil and political rights in this country. It is give in when it comes to defending these a great shame that those comments by the fundamental civil and political rights. Again member for Banks have not been adhered to in today’s Australian, the Secretary-General in the position of the Australian Labor Party of the Law Council of Australia said the bill today when they come into this chamber and remained—and I quote: agree to join forces with the government in ... the most serious erosion on the rights of indi- passing the most draconian legislation that viduals that the parliament has seen in many we have seen. It is a great shame that those years. views have not been expressed in this cham- In the same article, the federal secretary of ber, but those views have been expressed in the Media, Entertainment and Arts Alliance, the community. Christopher Warren, said that it would be We have heard no opposition to this legis- detrimental to the daily work and goals of lation going through from those members of journalists. He said: the Australian Labor Party caucus. But we We’re concerned that this legislation, like so have heard the opposition to this from the much since September 11 under the guise of community, and we will continue to hear the fighting terror, is winding back human rights and opposition from the Greens in this chamber. civil liberties of journalists. Let me inform the chamber about the com- As well, today in the Fairfax press we saw ments that we have heard in the community comments that Fairfax had written to the At- in opposing this legislation—this deal that torney-General’s Department about the dra- has been done; this so-called watered-down conian nature of this legislation and their piece of legislation. Cameron Murphy from concerns about the impact of this legislation the Council for Civil Liberties said today in on the work of journalists. But we will get the Australian newspaper that the legislation back to that issue as we move on through the would give ASIO the power: range of amendments that are before us today.

CHAMBER 11818 SENATE Wednesday, 18 June 2003

I would like to take the minister back to questioning. It stands to reason that you want an amendment that I spoke about earlier to- to advise the person who is being questioned, day—government amendment (24) to this or is about to be questioned, that they have legislation, which is in the context of the available to them the choice of a lawyer. So limited right to access a lawyer—that the that is why you have it in the warrant. But government and the opposition are propos- when you look at note 1, it really qualifies ing. I take the minister back to his comments subsection (4). The whole intention is to in relation to note 3 in government amend- have it contained in the warrant that you are ment (24) about whether the name of the able to have a lawyer of choice. But as to the lawyer goes onto the warrant. I was heart- identity of the lawyer, that is not made out or ened to hear the minister say that he did not known until the person who is being ques- believe that it was the intention of the legis- tioned can make that selection. lation to list the name of the lawyer on the Senator NETTLE (New South Wales) warrant. I recognise the difficulties that (11.35 a.m.)—I understand from the minis- would occur from that in terms of the re- ter’s previous answer that it is impossible to quirement to issue a new warrant if the name list who the lawyer would be at that stage. I of the lawyer on the warrant were to change. think the phrase ‘so the warrant must identify Note 3 says: such a lawyer’ is ambiguous as to whether A warrant authorising the person to be taken into that requires the warrant to actually list the custody and detained must permit the person to name of the lawyer. The minister is saying contact a single lawyer of the person’s choice ... that it does not, and I accept that. I wonder I will read on from there because it then then why we need it. Why can’t we just end says: note 3 with the comment: ‘contact a single ... so the warrant must identify such a lawyer. lawyer of the person’s choice’? Why do we The minister said he did not believe we need the last phrase of note 3? To me it is needed to list the name of the lawyer on the somewhat ambiguous as to whether there is warrant. Can the minister then explain the an intention to list the name of the lawyer. meaning of that last phrase—‘so the warrant Senator ELLISON (Western Australia— must identify such a lawyer’? We have estab- Minister for Justice and Customs) (11.37 lished that a person can contact a single law- a.m.)—I will take that question on notice yer of their choice—at this stage of the proc- and, rather than hold up proceedings now, we ess anyway. In terms of note 3 in government will have a look at that and get back to Sena- amendment (24), what is the purpose of that tor Nettle. phrase? Senator BROWN (Tasmania) (11.37 Senator ELLISON (Western Australia— a.m.)—I asked Minister Ellison earlier about Minister for Justice and Customs) (11.34 the powers of the faceless judge to intervene a.m.)—I think you need to look at note 1, in the questioning process of a person who which appears below subsection (4), and has been arrested and taken into custody un- says, ‘The warrant may identify persons by der the authority of ASIO. I also asked the reference to a class.’ What is intended here is minister to give other information about the that the warrant must state that the person is questioning process, the credentials of the entitled to a warrant of choice, because the ASIO operative who would be undertaking prescribed authority explains the warrant to the interrogation and the limits of the inter- the person when they are brought in for rogation—those three things.

CHAMBER Wednesday, 18 June 2003 SENATE 11819

Senator ELLISON (Western Australia— sented to be named—and that flows from the Minister for Justice and Customs) (11.37 last comment I made. a.m.)—In relation to the prescribed authority, A prescribed authority may give directions we have gone over that. But I will restate it under the warrant regarding the detention of so we do not misunderstand it. The pre- the person, including permitting the person scribed authority must be present at all times. to contact another person. The directions We know the judicial standing that the pre- must be consistent with the warrant, and any scribed authority must have. When the per- changes to the warrant must be approved by son first appears before a prescribed author- the minister in writing. The prescribed au- ity for questioning, the prescribed authority thority may also direct that the questioning must explain what the warrant authorises be suspended if it is advised by the Inspec- ASIO to do, the period for which the warrant tor-General of Intelligence and Security that is to be in force and the possibility of facing the inspector-general has a concern about the criminal sanctions if the person does not co- legality or the propriety of ASIO’s actions. operate. An interpreter will be provided for a person The prescribed authority must explain that being questioned if necessary. The bill pro- the person has a right to complain to the In- vides that an interpreter may be provided at spector-General of Intelligence and Security the request of the prescribed authority or at in relation to ASIO and also to the Com- the request of the person being questioned. monwealth Ombudsman in relation to the Throughout the questioning, there is the Australian Federal Police—bearing in mind requirement that the person must be treated that the Inspector-General of Intelligence and with humanity and with respect for human Security is an independently appointed statu- dignity. The person must not be subjected to tory authority who is also present during the cruel, inhumane or degrading treatment by questioning. The prescribed authority must anyone exercising authority under the war- also advise the person that they have the rant or implementing or enforcing a direction right to seek a remedy from the Federal of the prescribed authority. Any contraven- Court in relation to the warrant or their tion of that carries penalties—and that stands treatment under the warrant. This informa- to reason. The Director-General of ASIO tion must be provided when the person first must ensure that video recordings are made appears before the prescribed authority and of a person’s appearance before a prescribed at least once in every 24-hour period subse- authority for questioning and any matter or quently. thing that the prescribed authority directs to The bill further requires the prescribed au- be recorded. So, at the very least, there must thority to inform a person appearing before it be a video recording. of the role of every person present during the I have mentioned the independent aspect questioning, including the role of the pre- of the Inspector-General of Intelligence and scribed authority. It is clear, however, that in Security. That person is independently ap- some instances it would not be appropriate to pointed by statute and will be there, in addi- name a person present at the questioning. tion to the prescribed authority, to ensure that The amendment makes it clear that the pre- the ASIO officer carries out questioning in scribed authority must not disclose the name an appropriate form and that the treatment of of a person when providing information the person who is being questioned is appro- about their role unless that person has con-

CHAMBER 11820 SENATE Wednesday, 18 June 2003 priate. So there will be two people there, Senator ELLISON (Western Australia— looking out for the integrity of the process. Minister for Justice and Customs) (11.44 Senator Brown asked about the ASIO of- a.m.)—What you have to remember is that ficer concerned. The ASIO officer does not there is provision for a lawyer to be present have to have any legal training or back- throughout. In my previous answer I outlined ground. We argue that the situation is cov- that the inspector-general will be there, the ered by the presence of the inspector-general, prescribed authority will be there, and we who is a much more senior person, has been have provision for a lawyer to be present. independently appointed by statute and has Senator Brown is asking if the inspector- oversight of ASIO’s functions and behaviour. general intervenes—and I take it Senator The inspector-general will be in attendance, Brown’s question is if the inspector-general and it will be video recorded. The prescribed intervenes in a way that stops questioning or authority has all the powers I have men- limits ASIO’s actions—will the person who tioned and also has power to stop question- is being questioned be informed of those ing. So there are extensive safeguards. The reasons. person will be advised as to what is in the I think it should be fairly obvious, if there warrant, one aspect of which we have just is an intervention from the inspector-general, covered—there must be a lawyer of choice. why that is being done. I fail to see the rea- So this is a comprehensive package in rela- son for Senator Brown’s question. If the in- tion to the questioning regime. spector-general intervenes and says, ‘I think Senator BROWN (Tasmania) (11.43 we should stop here,’ it would be fairly obvi- a.m.)—We have not established that there ous why that is being done. He would be will be a lawyer of choice at all; we have saying to the prescribed authority: ‘I think established that a lawyer of choice can be we should stop. I think things have gone too denied. So that is very problematic, and the far and we should have a break.’ He is mak- minister is quite wrong to make an assertion ing it perfectly obvious there why he is in- like that. He did, however, raise the possibil- tervening. The person being questioned and ity that the inspector-general could intervene his lawyer there would understand exactly if the inspector-general believed there were what the story is. I cannot see where the mis- some legal reasons why the questioning chief is in the issue that Senator Brown has should be stopped. Under those circum- raised. stances, I ask the minister: will the person Senator BROWN (Tasmania) (11.46 being subjected to the interrogation be told a.m.)—The minister is not being a faithful to the reasons for the intervention? Will their the legislation that he has brought into this legal representative be told about it? What committee. The person does not have a law- access will the person whose legal rights yer there under a range of circumstances in- may have been infringed—even under this cluding those where the interrogation has situation, where it seems basic legal rights begun before the lawyer arrives. We have will be suspended in the main—have to seek established that the person may quite well, redress, or is that going to remain secret, under this legislation, never have a lawyer too? I go back and ask the minister: what there. So it is very important, if there is an authority does the faceless judge have to in- intervention because a person’s rights even tervene on the questioning process? under this legislation are being infringed, that the person be acquainted with those reasons. The minister says that it will be per-

CHAMBER Wednesday, 18 June 2003 SENATE 11821 fectly obvious. No, it will not. Where is the scribed authority. But in addition to that you provision here that the inspector-general have got other people there like the inspec- must before the witness tell the faceless tor-general, and you have got the question of judge that the person is having her or his a lawyer being present. There are legal ave- rights infringed? It is not there. nues available, which I mentioned, that a Again, I say to the opposition: how can lawyer has under section 34U, which spells you go along with this legislation which so out the involvement of lawyers. I mentioned grievously takes away the rights of individu- the involvement of the inspector-general and als to even know that they have been legally the role of the prescribed authority. The pre- transgressed under this process? I come back scribed authority has the ability to intervene to the minister again regarding the faceless if things are being dealt with inappropriately judge and ask: what are the powers of this and, as I understand it, to suspend question- person? Under what provisions of this legis- ing. lation can the faceless judge go beyond being Senator BROWN (Tasmania) (11.50 a witness to the process and become an a.m.)—Does the prescribed authority, this intervener? Does the faceless judge have the faceless judge, have an obligation to do so? power to intervene if she or he thinks that Senator ELLISON (Western Australia— legal propriety is being infringed? Indeed, Minister for Justice and Customs) (11.51 does the faceless judge have the requirement a.m.)—There is a requirement that the per- that they intervene if the person’s human son has to be treated with humanity and re- rights, their rights to dignity and so on, are spect for human dignity and there should be being transgressed by the unqualified ASIO no degradation, as I mentioned. All those officer who is undertaking the interrogation, people concerned would have an obligation putting the person who has been arrested under the act to see that carried out. It fol- under cruel, degrading and inhumane inter- lows that the inspector-general, ASIO offi- rogation? You do not have to be physically cers and the prescribed authority would have assaulting a person to be subjecting them to a that obligation. I am not aware of anything cruel and degrading process. What are the which says the prescribed authority has to do powers in this legislation for this faceless that, but it is implied from the act that the judge to intervene in that process? Indeed, person has to be treated in that manner, and what are the requirements? The faceless contravention of that by an ASIO officer is judge is there, I submit, as a disempowered an offence. But certainly the prescribed au- witness—and Mr Mark from the Interna- thority is charged with oversighting the ques- tional Commission of Jurists worries about tioning. Where that is a requirement that the this. What are the powers and obligations of person be treated in that manner, the person that judge to intervene in this process? Can who is oversighting has a duty to follow that. the minister be explicit? I do not think it needs to be spelled out; I Senator ELLISON (Western Australia— think it is there. Minister for Justice and Customs) (11.49 Senator BROWN (Tasmania) (11.52 a.m.)—I understand that the prescribed au- a.m.)—Under 34SA, ‘Status of issuing authority has the power to intervene. You have thorities and prescribed authorities’, it says: got these requirements there that the person (1) An issuing authority or prescribed author- has to be treated humanely, that there is no ity has, in the performance of his or her cruelty or degrading treatment. I have spoken duties under this Division, the same pro- extensively about the powers of the pre-

CHAMBER 11822 SENATE Wednesday, 18 June 2003

tection and immunity as a Justice of the are known to be innocent and they do not High Court. have legal representation. Because, at least at So this is talking about the immunity and the start of the interrogation period, one can protection of the faceless judge, not the wit- expect that that is going to be not only the ness. It goes on to say: exception but the norm. The judge that is (2) If a person who is a member of a court involved is, if not disempowered, certainly created by the Parliament has under this not required to look after that person’s inter- Division a function, power or duty that is ests. ‘There is an implication,’ says the min- neither judicial nor incidental to a judicial ister. That is not how you write legislation. function or power, the person has the func- You write legislation to say what you mean. tion, power or duty in a personal capacity You spell it out. That is an obligation on the and not as a court or a member of a court. legislature and the executive which in this Does that not remove from the faceless judge case has written this piece of legislation, and the duty to ensure that a person is not sub- it is not spelt out here. I ask the minister jected to an infringement of their basic rights whether he would be happy with an amend- in this situation which is set up to remove ment—because I will write it now—that basic rights from that Australian citizen? I do would require the judge to uphold the rights not agree with the minister. I think the legis- of the person being interrogated. lation, if it means that the faceless judge is Senator ELLISON (Western Australia— there to ensure that even under these extraor- Minister for Justice and Customs) (11.56 dinary situations what legal rights are left are a.m.)—It is covered in the bill, which states protected and that a person cannot be sub- that people who are exercising authority un- jected, for example, to cruel and unusual der the warrant need to abide by the provi- interrogation, should say so. But it does not. sions of the warrant and that that is inclusive The implication is that that is a requirement of the prescribed authority. In relation to the of the interrogator—this unqualified ASIO status of issuing authorities and prescribed operative—and that the inspector-general can authorities, I need to put on the record that step in if he or she thinks that their own offi- 34SA is a standard protection and immunity cer might be crossing the line. What an ex- offered to judges of the High Court. I am traordinary situation! Meanwhile the faceless subject to correction on this, but I believe it judge stands by, if not impotent then not re- would apply to state and territory judges. It is quired to intervene at all. That is the situa- basically about giving them the opportunity tion. That is what this legislation leaves as to exercise their functions without fear or the situation. And the minister uses the word favour so that they are not sued for a wrong ‘implication’. He says there is an implication decision. That is what that is all about. It is a in this legislation that the faceless judge civil protection. It does not immunise them might intervene. I have asked the minister to from an appeal or judicial review—far from say at what stage the faceless judge can in- it. That is still available. Those judges who tervene to protect the person being interro- are prescribed authorities are still subject to gated. He has not outlined that at all except review by judicial appeal or review which I to say, ‘At the stage where you get to cruel mentioned—very much so. It does not ex- and unusual treatment.’ That is way short of empt them from the criminal law either. Australian justice. I keep coming back to it. Judges have been charged with criminal ac- I am particularly interested in the situation tions. In no way is a judge exempt from where a person is not only innocent but they criminal law. This section does not exempt

CHAMBER Wednesday, 18 June 2003 SENATE 11823 any prescribed authority from any crime and Moving to another part of the bill, in 34Q we is there for a civil purpose so that they can again have reference to providing informa- go about their job without fear or favour in tion to the inspector-general. It reads: relation to a civil suit, but it will not stop any The Director-General must, as soon as practica- judicial review of their decision—that appeal ble, give the following to the Inspector-General of remains. In relation to the person exercising Intelligence and Security … authority under the warrant, any exercise of And then it lists a raft of things, such as a that authority is caught by that provision. I copy of the warrant, video recordings, state- refer Senator Brown to that provision. It ments relating to a range of different matters brings them within that ambit. So there is no and one other requirement. To me, these all implication there; it is spelt out very clearly. read as saying, ‘We must tell the inspector- Senator BROWN (Tasmania) (11.58 general as soon as practicable what is going a.m.)—So the minister would be happy with on, and we must allow the person being in- an amendment which spells out that the pre- terrogated to contact the inspector-general.’ scribed authority must protect the interests, None of that reads to me as, ‘The inspector- including the legal interests, of the person general is present for the interrogation.’ being interrogated? Please point out for me, if I am wrong, where Senator ELLISON (Western Australia— in the act it says that the inspector-general is Minister for Justice and Customs) (11.58 present for the interrogation. I do not know if a.m.)—For the reasons I have outlined, that the inspector-general is happy to sit around there is provision in the bill for that, that is for the week of questioning that is going to not needed. The question of the person result from this bill. I would question exercising authority under the warrant is whether in fact that was the most efficient catered for. We say very clearly that that is use of the time of the Inspector-General of covered. There is no need for an amendment. Intelligence and Security. Perhaps the minister can point out for me where in the bill it Senator NETTLE (New South Wales) stipulates that, as he said, the inspector- (11.59 a.m.)—I have questions to ask the general is present for those interrogations. minister that relate to the presence of the Certainly I am finding that we must tell the inspector-general. When I entered the cham- inspector-general what is going on, but not ber again a little while ago I heard the minis- that he must be there for the interrogation. ter saying that the inspector-general would be present during the interrogation. I could Senator ELLISON (Western Australia— have missed something, but section Minister for Justice and Customs) (12.01 34F(9)(c) of the legislation says: p.m.)—I will take that question on notice, albeit short notice. We will get the provision (c) anyone holding the person in custody or detention under this Division must give the that deals with that. Still looking at Senator person facilities for contacting the Inspector- Brown’s question of a person committing an General of Intelligence and Security or the offence in relation to exercising authority Ombudsman to make a complaint orally un- under the warrant, the bill says a person der a section mentioned in paragraph (b) if commits an offence if: the person requests them. (a) the person has been approved under section So that part of the legislation explains that 24 to exercise authority conferred by a war- the person being detained must be given fa- rant issued under section 34D ... cilities by which they can contact the Inspec- tor-General of Intelligence and Security.

CHAMBER 11824 SENATE Wednesday, 18 June 2003

It goes on to say that the person exercises the To avoid doubt, for the purposes of performing authority or purports to exercise it and con- functions under the Inspector-General of Intelli- travenes a condition of that. The warrant un- gence and Security Act 1986, the Inspector- der 34D is simply a referral to a warrant for General of Intelligence and Security, or an APS questioning, as I recall. Yes—‘Person taken employee assisting the Inspector-General, may be present at the questioning or taking into custody into custody under warrant to be immedi- of a person under this Division. ately brought before prescribed authority’. Section 24 of the act as it stands, under ‘Ex- The question was: is it mandatory for the ercise of authority under warrants’, says: inspector-general to be present? Is the word ‘may’ to be read as ‘shall’, which it some- (1) The Director-General, or a senior officer of times is? I understand that the situation is the Organisation appointed by the Director- General in writing to be an authorising offi- that that is not mandatory, but the person has cer for the purposes of this subsection, may, a right to complain to the IGIS during pro- by signed writing, approve officers and em- ceedings if there is a problem. As I outlined ployees of the Organisation, and other peo- earlier, the warrant says that the prescribed ple, as people authorised to exercise, on be- authority has to read to the person all the half of the Organisation, the authority con- conditions of the warrant—what the warrant ferred by relevant warrants or relevant device is about. Part of that is that they have a right recovery provisions. to complain to the inspector-general. For my (2) The authority conferred by a relevant warrant part, I think that the inspector-general could ... may be exercised on behalf of the Organi- have no better function. Senator Nettle said sation only by the Director-General or an of- that the inspector-general would have other ficer, employee or other person approved things to do. I could think of nothing else under subsection (1). more important than being present. If the So, under subsection (1), you are dealing inspector-general were not present, I think with the director-general, a senior officer of they would have to give very good reasons the organisation and other people as people as to why they were not present during the authorised to exercise. The question is: is exercise of such very strong powers. that wide enough to encompass the pre- Senator NETTLE (New South Wales) scribed authority? I will get further advice on (12.07 p.m.)—I thank the minister for clari- that and advise the committee. I know that fying that, when he stated earlier to the Sen- Senator Brown’s next question will be: ate that the inspector-general would be pre- ‘You’ve got this section 24 of the ASIO Act. sent, that was wrong. He has now clarified It talks about people who are in the organisa- that, his previous statement being wrong, tion. The prescribed authority is not a person there is a capacity under which the inspector- in the organisation. Can it be some other per- general, or a representative or an employee son mentioned in that section who deals with working with the inspector-general, can be— the warrant?’ We will get back to Senator may be—present at the questioning. It is per- Brown on that point. tinent for us to note, in the context of the Regarding Senator Nettle’s question in re- answers that we are getting from the minis- lation to the inspector-general, I refer to ter, that he has now corrected his mistake. 34HAB, which is entitled ‘Inspector-General We now all clearly understand that the in- of Intelligence and Security may be present spector-general may be, or can be, present. I at questioning or taking into custody’. It welcome the minister’s comments that he states: believes that it would be an appropriate role

CHAMBER Wednesday, 18 June 2003 SENATE 11825 for the inspector-general to play. I thank the been made clear. The safeguards that I have minister for his comments, for clarifying that mentioned are there. You would not have a for us and for correcting the mistake and say- prescribed authority overseeing a regime of ing that the inspector-general can or may be questioning which was inhumane or degrad- present during questioning. ing. This bill places an onus on those con- Senator BROWN (Tasmania) (12.08 cerned to see that that is carried out. We p.m.)—This of course means—and Senator really cannot see any reason to incorporate Nettle is quite right—that the inspector- an amendment which would serve to confuse general can be absent and that the minister things even more. It is very clear at the mo- was wrong earlier. The person’s lawyer can ment that the prescribed authority has a duty be absent or not appointed. We also find that under this legislation to see that the question- the faceless judge adjudicating over this one- ing is carried out appropriately. That is very sided process, where information comes clear. Under the role of the prescribed au- from ASIO but no counterinformation is al- thority I have listed what that person must lowed, for example, in the selection of a do. That sets out extensively what the pre- lawyer, is not bound to ensure the rights of scribed authority has to attend to and what the person appearing before them. I fore- has to be done. I fail to see where Senator shadow new section 34SA No.3 which states Brown thinks that that is deficient. that: Senator BROWN (Tasmania) (12.11 A prescribed authority shall ensure that the legal p.m.)—I will be moving my amendment be- and other rights of a person brought before that cause it is important for the minister to rec- prescribed authority are upheld throughout. ognise that if what he says is so he should I note that the minister has his people look- have no objection to the amendment. I am ing at the failure of the ASIO Act as it stands not at all convinced that the judge who is to cover prescribed authorities and therefore overseeing or adjudicating on this secret in- to put an obligation on them. I would be interrogation has obligations to look after the terested to see whether the minister can come rights of the person brought there to be back with an amendment which might cover interrogated. I have asked the minister to the territory of my foreshadowed amend- specify the boundary that is drawn in the ment. I am not happy just to allow this to interrogation by the ASIO officer, who can float. I am not happy just to allow the minis- be thoroughly unqualified in such matters, ter to say, ‘As I read it, there is an obligation and the minister said that the inspector- on this faceless judge to be there in the inter- general will be there and will intervene if ests of the person being interrogated.’ I think there is legal trespass. Senator Nettle has the faceless judge is there in the interests of discovered that the inspector-general can be the interrogators. We need to spell it out. If absent. With a number of arrests being made that is what is meant by the legislation, let’s around Australia at the same time of people put it into the legislation, and my amendment whom ASIO wants information from, you will do that. can imagine that it is not going to be possible for the inspector-general to be there. In fact, Senator ELLISON (Western Australia— it will clearly be the case that the Minister for Justice and Customs) (12.10 watchdog—if it is a watchdog—will be there p.m.)—I restate the government’s position in ASIO’s interests, not in the interests of the that the situation has been covered. The posi- person being interrogated. It will be the norm tion in relation to the inspector-general has that the judge who is overseeing this process

CHAMBER 11826 SENATE Wednesday, 18 June 2003 judge who is overseeing this process will not bomb an embassy? That is the sort of thing intervene. that may very well be the subject of ques- With regard to cruel and unusual treat- tioning. Senator Brown is trying to say there ment, what is to prevent ASIO from going is some problem with bringing in personal into the personal details of a person who is relationships or something of that sort. Un- being interrogated to ask about their relation- fortunately, when you are gathering intelli- ships, sexual activity, family relationships or gence, that could be the very subject matter personal affairs? I would say that that could of the questioning. be quite a degrading process for the persons To maintain standards, we of course have involved. Where is the check on that? There protocols. The Parliamentary Joint Commit- is a check on that in the open court system, tee on ASIO, ASIS and DSD recommended but for the first time we are establishing a that the bill be amended to provide for the closed court system here—a secret, behind development of protocols that would govern the doors court system where the rules are the custody, detention and interview process suspended. I want to know from the minister under the bill. The government anticipated where the line is drawn. I believe—and the that such protocols would be developed as a Greens believe—that the line has been re- matter of course, and, to put the matter be- moved and that anything short of a physical yond doubt, we have included the develop- affront on the person is, at some time or an- ment of protocols as a requirement of the other, going to be entertained. There will not bill. The bill requires the Attorney-General to necessarily be an effective watchdog there. be satisfied that written procedures for the Senator ELLISON (Western Australia— custody, detention and interview of persons Minister for Justice and Customs) (12.14 under a warrant are in place before consent p.m.)—Of course, there are protocols which can be given to the director-general to seek a set standards for the questioning to be carried warrant. out. As I understand it, those protocols will The written statement must be developed be tabled in both houses of parliament. Those by the Director-General of Security in con- protocols will be settled after careful consid- sultation with the Inspector-General of Intel- eration. A warrant cannot be issued until the ligence and Security and the Commissioner protocol has been settled, so nothing can of the Australian Federal Police. The state- happen until the protocols are in place. ment must be approved by the Attorney- In relation to the question about relation- General, presented to each house of parlia- ships, relationships may be relevant. A rela- ment and outlined in a briefing to the Par- tionship might be the very thing that ASIO liamentary Joint Committee on ASIO, ASIS wants to make inquiries about. There is noth- and DSD. In response to recommendations ing untoward about that. It may be that the 22 and 23 of the Senate Legal and Constitu- person who is being questioned does have a tional References Committee’s report on the personal relationship with a person who is bill, the government is willing to amend the suspected of being a terrorist—a very close bill to set out in greater detail the matters that relationship. I would consider that to be en- are to be included in the written statements. I tirely appropriate subject matter for question- think that provides the transparency and ing, because you would want to know how scrutiny of the standards which are to be set. much they know. Do they know whether a That is something we have taken up as a re- person they are living with is planning to sult of the recommendation of a parliamentary committee.

CHAMBER Wednesday, 18 June 2003 SENATE 11827

The TEMPORARY CHAIRMAN I ask the minister to table the protocols (Senator Sandy Macdonald)—Senator now so that we can see what they say. It is Brown, I think you mentioned that you totally unsatisfactory that the Senate be re- wished to move an amendment. That matter quired to deal with a piece of legislation— is not directly before the chair at the mo- and I reiterate that we got the government ment. My understanding is that it will be amendments yesterday, on the eve of this slotted in later. debate—without the protocols being avail- Senator BROWN (Tasmania) (12.17 able. We are being quite deliberately manipu- p.m.)—Thank you; I expected that would be lated by the government, with the compli- the case. The problem is that the protocols ance of the opposition now, into a process are not here. I ask the minister: will he table which I think is serial entrapment of the par- the protocols? The government is asking us liament, because we do not have the infor- to deal with legislation—we are getting right mation to assure us that this legislation is into the quick of this matter—which is going going to do what the minister says it will do. to inevitably have innocent Australians in an ‘Wait for the protocols,’ he said. No, in the invidious position. They are being interro- absence of protocols we need an assurance gated in secret without their normal support that people’s rights are going to be upheld, base or even legal representation. that people are not going to be blackmailed, that they are not going to be traduced in se- The minister says it is quite all right to ask cret and compromised. about relationships. I understand that that is a part of intelligence gathering. But, you see, We are dealing with secret police matters you then immediately move on to the situa- here. That is what they are. We as a parlia- tion where ASIO reveals to this person held ment simply cannot abrogate our obligation in secret without a legal representative that to citizens by being told that there will be a they are aware of an extramarital affair or protocol further down the line. Everything that they are aware of some other matter that fails in this situation. Everything fails as far is highly sensitive to that person. What is to as the citizen is concerned. I want to have it stop this becoming a blackmail situation? from the minister: if a blackmail situation What do you do with a journalist, for exam- arises in interrogation, is the faceless judge ple, or a politician who is caught in that required to intervene to prevent that happen- situation and who suddenly realises that they ing? have been watched and that ASIO knows Senator ELLISON (Western Australia— about personal affairs they would rather did Minister for Justice and Customs) (12.21 not become public and who is being required p.m.)—There are provisions, as I said, in to produce information—tapes, interviews, relation to the contravention of the standards names or addresses—which they feel bound that I have mentioned, and they are that a not to produce? Suddenly, leverage is being person should be treated with humanity and put on them through the production of per- dignity and also that they should not be de- sonal information about them which can lead graded. In that, blackmail is certainly an as- them instantly into a blackmail situation, pect. What Senator Brown is really talking remembering that the usual protections that a about is coercion, because that is what person has in an open court of law are sus- blackmail is after all—an attempt at coer- pended here. What is to prevent that from cion. So to coerce a witness or to coerce happening? anyone is basically an aspect of duress, which is something that is totally prohibited

CHAMBER 11828 SENATE Wednesday, 18 June 2003 in this regime of questioning. If Senator these circumstances, for people to be put Brown needs that to be restated, then I will through a different form of torture—that is, do so, but I have certainly outlined what is things that they do not want to be revealed to required in the questioning, and that is that be brought up in front of them as being fact. there have to be standards and breaches of Nothing has to be said but the very fact that those standards will attract a penalty. ASIO is holding that information coerces I will refer to the bill again: 34NB is the that person. They have got no legal represen- subsection that deals with the question of tation, and the checks and balances that we contravention, and it states very clearly that a would expect would help them in that situa- person who contravenes any of those meas- tion are gone. You cannot tell me that that is ures or those requirements is liable to im- not going to coerce that person to bring for- prisonment for two years. If someone is co- ward information that ASIO wants. Of erced, that would be a breach, and blackmail course it will. constitutes a coercion, as would any other You can imagine much worse combina- aspect of duress, such as a threat: ‘If you do tions of pressure. Interrogation in this situa- not tell me this, I will harm your family,’ or, tion is about pressuring the person to give ‘If you do not tell me this, I will expose you information. As Mr Mark has said—and I in relation to various matters.’ That is not an quoted him earlier—what is likely to happen allowable form of questioning. It is not al- here is that people who are innocent are go- lowed for in any shape or form in this bill. ing to be put under extraordinary duress. The Any person who carried out that sort of ques- terrorists are not going to worry about it. But tioning would be in breach of this bill. I am here defending the Australian citizen Senator BROWN (Tasmania) (12.24 who gets caught up in this awful situation p.m.)—I disagree. In a questioning process, and I say to the minister and to the opposi- where there is an extramarital relationship— tion, yes, people will be put under duress let us settle on that, for example—and where here and they will be subject to degrading an interrogator brings up this matter with, let treatment. It is going to happen because the us say, a journalist who is being interrogated defence of the usual system of law is not and says, ‘You have had a relationship with there and that is why we oppose it. It is part such as such person,’ and they can state of the suite of reasons why we oppose this times and places, and then they get on with legislation. Mind you, if what the minister the questioning, you cannot tell me that that says is true, that the prescribed authority is person is not immediately put under enor- there to look after the rights of people, then mous coercion to comply if they do not want my amendment, which says ‘this faceless that matter revealed. There does not have to judge shall ensure that the legal and other be any threat involved; it is just a revealing rights of the person brought before that pre- of information that ASIO has on such a per- scribed authority are upheld throughout’ be- son. comes of itself acceptable and in no way de- niable. I reiterate, we are moving into a secret police situation here. It is not open to the norms Senator FAULKNER (New South of protecting innocent people that we have in Wales—Leader of the Opposition in the Sen- our courts, and there is going to be creative ate) (12.28 p.m.)—Senator Brown makes an questioning. We do not have torture in our important point and says to the committee country, but we do have the ability, under that he is here defending those who will be caught up in the new provisions of this bill,

CHAMBER Wednesday, 18 June 2003 SENATE 11829 and I think that is to be acknowledged. I am haustive scrutiny by the Senate’s committee here to do the same thing, too. I am going to system and joint parliamentary committees defend those people and ensure that their of this parliament. I believe that those who rights and safeguards are appropriate. I am participated in those inquiries, those who also going to defend those people who are at produced what were scathing reports on the risk from terrorist attacks. I am going to legislation that was introduced into this par- make sure that all Australians are defended: liament, had worked very hard to try and those whom ASIO want to question, those at ensure we got the balance right. risk from a terrorist attack—all Australians. But I want to be absolutely clear. I do not I think we now have to put this debate into resile from this fundamental point at all and I some sort of context. Terrorism potentially do not want anyone in this chamber or out- brings together, in one criminal act, the most side to misunderstand. I do support ASIO serious imaginable offences under Australian having enhanced powers to deal with terror- law. Look at what terrorism involves—mass ism, and so does the Australian Labor Party. murder. It involves, possibly, the bombing of We have always said it and we do not say it public buildings. It involves interfering with lightly. We actually believe it. We want legis- public utilities—water, gas and electricity lation to pass to ensure that there are appro- systems, for example. It involves the hijack- priate new powers in this environment to ing of planes or other methods of transport. deal with the serious, real threat of terrorism. We know now about New York, 11 Sep- So we have always taken the view that sen- tember 2001. We know about Bali, 12 Octo- sible enhancement to ASIO’s powers is a ber 2002. These are the issues that this par- responsible thing for this parliament to con- liament has to give consideration to—the sider and enact, and a responsible thing for a rights and safeguards and freedoms and lib- government or an opposition—or, for that erties of people who are being questioned by matter, anyone on the crossbenches—to give ASIO, and the rights and safeguards and proper consideration to. freedoms and liberties of all Australians and, The balance is difficult to achieve but for that matter, people who are at risk of ter- there is a requirement for an enhancement of rorist attack around the globe. I do not forget ASIO’s powers so that they can question what the intention, aims and objectives of people to gather intelligence in relation to terrorists are. Do not forget: terrorists try to potential terrorist acts. Our starting point achieve their objectives—often, as we know, with these bills, from the opposition’s per- their political objectives—by the most hei- spective, is to ensure that we strike the right nous acts and the most extreme violence. balance—the right balance between taking So we ought not kid ourselves in this de- effective measures against terrorists and pre- bate that the issues before us are not serious. serving the democratic freedoms that Austra- These are difficult times. And the responsi- lians and Australia hold dear. They are the bility of this parliament and this Senate sort of democratic freedoms that fundamen- chamber is to get the balance right in re- tally are attacked by those who engage in sponding to those challenges, and it has not terrorist acts. been easy. It has been a tortuous process to There has been an awful lot of disinforma- try and achieve that. The ASIO bill was first tion in the public debate. Some, I think, are before this parliament 15 months ago. The still debating the worst drafted, most appall- ASIO bill has been subject to the most ex- ing piece of legislation that I suspect we

CHAMBER 11830 SENATE Wednesday, 18 June 2003 have ever seen introduced into the Australian present, it is a no-brainer. Of course you parliament—a bill that was introduced some have to start the questioning in those sorts of 15 months ago. Even in today’s newspapers I circumstances. Of course there is a greater see people talking about that proposed legis- principle and an obligation on all of us. lation. For example, there is the statement of When this bill was introduced there was Mr Cameron Murphy from the Council for no age limit on who could be questioned by Civil Liberties that the ASIO bill will allow ASIO. There was not only no age limit but kidnapping. How grossly irresponsible those the only limit that I am aware of was that no- statements are. The truth is that now, thanks one under the age of 10 years could be strip to this parliament’s committee system and searched. Now the government has moved to thanks to the non-government majority in a position in relation to children where 16- to this chamber, a person being questioned by 18-year-olds will be subject to the provision ASIO will have access to a lawyer. A person of this bill, but only if they are suspects—not being questioned by ASIO will have that non-suspects but suspects. That is a radically questioning conducted before a high-level different proposal that is now before the par- judicial authority. If they are 16- to 18-year- liament. In relation to the supervision of this olds, their parent, guardian or someone else questioning regime, previously the govern- whom they nominate can be present also. ment had a proposal where federal magis- The Inspector-General of Intelligence and trates or AAT members would be the pre- Security has the ability to stop the question- scribed authority. We insisted on senior judi- ing. So much, of course, does depend on the cial officers, retired or current judges, or authority and capacity of the prescribed au- president or deputy president of the AAT. thority in this instance. That is appropriate too because the responsi- But let us not debate the measures in the bility and powers of the prescribed authority old ASIO bill. Let us look at what is cur- are so great. rently before the parliament. It is a radically No-one has mentioned the protocols in different bill with radically different provi- this debate, because there were no protocols sions. In the first ASIO bill that was intro- when this bill was introduced into the par- duced in his parliament there was no access liament, none whatsoever. So many of the to legal advice—none at all. Now there is protections that we speak of are contained in access to a lawyer of choice and there are those protocols. I am pleased that those pro- safeguards to protect security information, tocols will be tabled in the parliament and but I have always said this and I am always will be a public document. There was no going to defend the situation where question- sunset clause when the bill was introduced. ing by ASIO can commence without a law- Now there is a three-year sunset clause and a yer if there is a risk to national security. If range of other review mechanisms, including the issue on one side of the balance is that a the Joint Parliamentary Committee on ASIO, person being questioned by ASIO has infor- ASIS and DSD reviewing the legislation mation which might stop a terrorist event where there is the reporting mechanisms. occurring and that questioning should start Frankly, the government should accept this and the issue on the other side of the balance issue about personal searches. Of course that is that a person should have a right to a law- should be thrown into the sunset clause to re- yer—which is a very important principle and examine it in three years and review if re- one which the opposition holds dear—that quired. I accept the point that is made in rela- questioning should not start until a lawyer is tion to that issue—not the whole kit and ca-

CHAMBER Wednesday, 18 June 2003 SENATE 11831 boodle but that issue can just be dealt with, coming part of the government. Senator and ought to be dealt with, quickly. The re- Faulkner says that, thanks to the non- view mechanisms are important, now with government majority in the chamber, we the detailed reporting on the number of war- have got this bill. Wrong! This is a govern- rants, questioning, hours and, of course, the ment-ALP fix to take away the rights of Aus- review by the parliamentary committee. tralians, to put innocent Australians into the We have the broad issue in relation to the hands of secret police, to give those secret detention or questioning period. Where did police powers that have never been seen in we start? We started with the potentially in- this country before and to move court pro- definite incommunicado detention of non- ceedings into secret court proceedings with suspects if ASIO believed they could provide faceless judges with people without their intelligence in relation to a terrorism offence. rights, including the right to access a lawyer. Where do we find ourselves now? The posi- That is Labor Party policy and that is gov- tion that this Senate adopted of custody for ernment policy, but the Greens are going to up to 20 hours questioning has been in large stand against that happening in this country. measure accepted by the government. We Hundreds of years of earned rights, which said four plus eight plus eight hours. The have stood through world wars and confla- government now says eight plus eight plus gration and which people have fought for, eight hours. It says over a seven-day period. are being eroded by the Labor Party abetting The Attorney-General says he cannot imag- the government in this legislation. The ine questioning going for that period. We Greens stand in defence of those rights. This would want to see that seven-day period re- is a backdoor concession to terrorism. This is duced and we will move amendments to en- a whittling away unnecessarily of the rights sure that occurs. But, again, it is a radically of Australians by the Labor Party moving different proposal to the one we saw. The serially to accommodate this neoconserva- challenge for all of us in this committee is to tive Howard government that we have in this get the balance right. It is not easy and it has country today. Where is the Labor Party’s not been easy, but I believe that the outcome time-honoured support for the average Aus- has been a triumph of Senate accountability tralian’s rights? and a triumph for this chamber as a house of Progress reported. review. We do have a massive and radically MATTERS OF PUBLIC INTEREST different piece of legislation before us. We The DEPUTY PRESIDENT—Order! It are still tinkering with it, as we should, but being 12.45 p.m., I call on matters of public after we have done that we will have no al- interest. ternative but to act in Australia’s interests and pass it. Queensland Government Senator BROWN (Tasmania) (12.43 Senator SANTORO (Queensland) (12.45 p.m.)—What a performance from the p.m.)—When the Queensland Treasurer spokesperson from the ALP, who this morn- brought down the state’s 2003-04 budget on ing has serially failed to get up to defend the 3 June, he said: indefensible clauses in this bill but who gets The Beattie Government has a clear vision for into a general peroration which would do Mr Queensland and a clear set of priorities. Howard proud. This is government stuff. If only that were true! In fact, as the budget That is the best defence of the government shows, and as reaction to it from business, that I have heard today. This is the ALP be- community groups, the state’s own public

CHAMBER 11832 SENATE Wednesday, 18 June 2003 service and other interested parties clearly I do not strike a balance in speeches such as demonstrates, it isn’t true. Under Labor, the this! The Beattie Labor government tells us party for robbing Peter to pay Paul, the vi- so because Grants Commission figures show sion is looking through a glass darkly. It Queensland’s tax effort at an index level of should not be so but it is. Queensland is the 85.7, which is lower than that of other Aus- first state to begin to benefit from the strong tralian states, but it does not tend to remark positive flow of GST dollars—the growth tax very often that, as is clear from page 70 of that A New Tax System provides for the Budget Paper No. 2, the tax effort by Queen- states and territories under the forward- slanders has risen by some five per cent in looking and innovative Howard-Costello real terms since 1999-2000. Most of this in- federal government—but I will talk about the crease in the state’s tax burden seems to have volume of GST revenue flows to Queensland been by sleight of hand under cover of the shortly. Indeed, there is a great inflow of federal addition of the GST and the belief Commonwealth dollars—dollars collected by that ordinary Queenslanders would not no- the Commonwealth, which takes out all of tice it. the political pain, and given to Queensland, The Queensland budget papers are inter- which takes absolutely no pain, political or esting in another area. Table 1.2 on page 5 of otherwise. Yet the Beattie government, while Budget Paper No. 3 shows that it is definitely singing its own praises—and it is very, very the case that in the 2003-04 budget the good at doing that—is forever crying poor. It Queensland government has increased capi- is forever saying that it has been dudded by tal works expenditure from $4.8 billion this the Commonwealth. It is a government that year to $5.2 billion next year. Again, I do not has always got an excuse for failure, and it is mind stating that for the public record. How- no surprise that it always seems to be some- ever, there is some very creative accounting one else’s fault. going on within those figures—along with, I There is no doubt that Queensland is still would suggest to honourable senators oppo- in the box seat as far as Australia’s state site, some daylight robbery. The table also economies are concerned. Its balance sheet is shows that this improvement in vital spend- without question the strongest in the country, ing has been financed by putting Queensland and that is good news for Queenslanders. But government owned corporations more into if Queensland is the economic engine room debt. I repeat: GOCs are going into debt to of Australia—and it is, with growth rates that fund this extra infrastructure expenditure. are the envy of other states and a bottom line Borrowings rise from $549 million this year that is still, because of previous coalition to $1.351 billion next year. That is a massive governments’ efforts, remarkably healthy—it increase. Even a casual observer might find is also an engine room that the Beattie Labor it remarkable that the Queensland govern- government is lubricating with a potentially ment is, at the same time, increasing both the dangerous brand of snake oil. It continues to dividends it takes from its GOCs and the proclaim Queensland’s status as a low-tax debts that those businesses have to carry. state. For anyone interested in looking up This is a level of financial engineering on a this claim—and honourable senators oppo- par with that previously associated with En- site can see how fair I am; I even direct you ron, and I say that with regret and after much to where that boastful claim can be found—it reflection. can be found on page 71 of Queensland The Queensland government can only do Budget Paper No. 2. Never let it be said that this because the borrowings for the GOCs

CHAMBER Wednesday, 18 June 2003 SENATE 11833 are done by the Queensland Treasury factors built in and given the fact that we are Corporation using its AAA rated debt. That is delivering well. But I will talk about delivery the only reason why they can lift borrowings because it is not about delivery of essential out of GOCs from $549 million this year to services in Queensland; it is all about non- $1.351 billion next year, a massive increase delivery of essential services by the Beattie loading GOCs up with debt. If these corpora- Labor government. tions have to borrow or are regarded by the Queensland’s unemployment rate is stuck financial sector as having to borrow in their on seven per cent and the state government own right then, given their reduced cash flow expects no improvement over the year. That because of enforced dividends to the gov- is a full two per cent higher than the five per ernment and given their increasing debt ra- cent Premier Beattie promised the electorate tios, their debt would increasingly be re- he would deliver many years ago. He has had garded as junk—nothing else but pure and five years and he has not delivered. What he simple junk. In other words, Beattie Labor is has delivered is the country’s most regressive financing capital works expenditure by put- industrial relations regime, one that contin- ting the commercial future of public busi- ues to mandate, and protect, big union power nesses at risk or at least under pressure that and control. What Premier Beattie does not they do not need, do not deserve and indeed seem to realise—but what many other sec- should not have to bear. tions of the Labor Party and the union As a result of the Treasurer’s raids on their movement have realised—is that those days funds, GOC dividend payments are expected of legislated union monopoly and control are to slump next year to $631 million. Yet, ac- over. But that is not realised by the Queen- cording to the government, these trading en- sland government, headed by the former terprises were feeling so generous that they general secretary of the stationmasters union. all but rang up and offered the money. The Delivering services is the job of state stories that are coming back to people like governments—basically, it is the only job of me and to members of the state opposition in state governments these days and they Queensland are just incredible, almost too openly admit that. My honourable colleague incredible to believe, but they are true. Pres- Senator Ludwig is shaking his head, but it is sure is being put on GOCs to cough up divi- true. The Beattie government have been fal- dends and to then cough up income derived ling down even on that job. They are not by them going into debt—and that is long- only demonstrating themselves to be eco- term debt, debt that will impact on GOCs’ nomic vandals but also falling down on the future dividends and cash flows. I ask hon- job of essential service delivery. They are ourable senators: how sensible is this as gov- failing to provide funding to support the real ernment policy? How good is it from an eco- call Queensland makes on the public hospital nomic manager’s point of view? I can tell the system because of the regional and decen- Beattie government what the answers to tralised nature of the state. Last year, public those two questions are: it is not sensible and hospital emergency departments in Queen- it is indeed not good. sland failed to meet Queensland Health stan- The Beattie government says that it is all dards in four of the five categories. Fewer about delivery. It is not. If the delivery of and fewer Queensland children are seeing essential services was good, one could al- the school dentist—last year 320,000 did so, most—and I am not saying so—say that well below the Queensland Health target of some borrowing is warranted given growth 330,000 to 350,000.

CHAMBER 11834 SENATE Wednesday, 18 June 2003

Senator McLucas—What does the your constituents, whom you are supposed to Commonwealth pay to the states for den- be faithfully representing. Senators opposite tistry? should not try to defend the indefensible. Senator SANTORO—I hear my col- These are service delivery factors for league Senator McLucas. Let us talk about which the state government has direct re- Cairns. sponsibility—responsibilities it is failing to The ACTING DEPUTY PRESIDENT meet. Queensland is going backwards. For (Senator Bolkus)—Order! example, no new front-line staff have been committed to the key family services areas Senator SANTORO—Through you, Mr that combat abuse—we have heard so much Acting Deputy President. about abuse in this place, particularly child The ACTING DEPUTY PRESIDENT— abuse—despite the government’s own ad- It will have to be directly to me rather than mission that reports of suspected abuse are through me, Senator Santoro. growing at around eight per cent a year. Just Senator SANTORO—To you, Mr Acting in case honourable senators missed hearing Deputy President, of course. I can inform what I said, I will repeat it: no new front-line you as to what is happening in North Queen- staff have been committed to the key family sland with the mental health crisis, which services areas that combat child abuse, de- again has been ignored in the latest Beattie spite that massive increase in reported child budget. The budget, for the information of abuse. honourable members, failed to boost mental The Beattie Labor government has in- health funding in North Queensland. The vested a considerable amount of funding in Beattie government’s latest budget clearly child protection but again it is failing at the fails to provide for extra mental health fund- front line. Figures released by the Australian ing despite the recent resignation of the Institute of Health and Welfare last year Cairns Base Hospital Director of Integrated showed that 30 per cent of investigations by Mental Health Program, Dr Keith Muir, after the Department of Families from 2001-02 he was assaulted by a forensic mental health remained unfinalised at the end of August— patient. I would like Senator McLucas to twice the rate of investigations not finalised defend that particular indefensible non- in any other Australian state. achievement by the Beattie Labor govern- Some of the forecasts it has relied on in ment. The Cairns Base Hospital is not even presenting the 2003-04 state budget are on supposed to house any forensic mental health the upside of optimistic in terms of potential patients—psychiatric patients who have for actual delivery. As the Courier-Mail fi- committed a crime—because it lacks secure nancial analyst Paul Syvret wrote on 4 June: facilities. Clearly, documents tabled by the opposition in parliament show that the At face value, the State is facing a time of Cairns Base Hospital also lacks appropriate wine and roses. Economic growth of 4 per cent, a fat operating surplus next year, no net debt, and safe psychiatric evaluation facilities in healthy jobs growth, no new taxes and record its emergency department. revenues. If honourable senators opposite want to Unfortunately, these predictions are based on a interject about any region, about any town, I lot of assumptions in areas over which Queen- have all the information here. We will put it sland has little or no influence. on the record and we will distribute it by Just some of the variables which could come media release and other direct mail to all into play for the year ahead include the economic

CHAMBER Wednesday, 18 June 2003 SENATE 11835 health of the State’s major trading partners, the ample, which I hope the honourable senator effect of a rising Australian dollar, the perform- representing the North Queensland region, ance of world share markets and the impact of who of course lives there, may be able to such chaos events as the SARS virus. justify—and she needs to be very specific; Of course, there is nothing wrong with being we do not want rhetoric in reply—that is, the optimistic. It nearly always pays in improv- gross neglect in funding of the Cairns Base ing one’s mood and motivation. That in itself Hospital. I am running out of time to again can often be a spur to greater things. But at remind the Senate and honourable senators the same time, it is optimistic to count on the of just how fortunate Queensland is in the economic engine room performing forever in GST take, which is above what it was ex- overdrive. It is particularly unwise in Queen- pecting. If you do not believe that, just see sland’s case because under Labor the state what Premier Bracks and Premier Carr say has the country’s most regressive and there- about their misfortune in not getting as much fore fundamentally unprofitable industrial as they think they should. (Time expired) relations environment. Any progress that can Environment: Great Barrier Reef Marine be reported in Queensland on reform in the Park Authority workplace or on incentives provided in Queensland workplaces accrues to that econ- Senator McLUCAS (Queensland) (1.00 omy as a result of the enlightened industrial p.m.)—Before I make my speech in relation relations policy and workplace relations to the marine park tourism operators, I will policies of the Howard-Costello government. have to respond to Senator Santoro; I cannot let that one go past. Senator Santoro has just The state’s own taxation revenue is fore- used the classic Liberal political strategy: cast to grow by 2.8 per cent in 2003-04 to when you have nothing good to say about $5,664.2 million. Gamblers are giving that a your own government, you get up and talk healthy lift—it might better be seen as an about another level of government. I com- unhealthy lift—and are expected to contrib- mend to Senator Santoro yesterday’s Towns- ute $680.2 million in 2003-04. Another area ville Daily Bulletin editorial, in which it is where tax increases are massive is transfer very clearly recognised that this is the strat- duties. Stamp tax, in other words, will fall by egy that Mr Lindsay is using in that town: 10.9 per cent and mortgage duties by 12.2 the direct mailing of a letter to the whole of per cent with the expected easing of the his electorate, talking about the Townsville Queensland housing boom. But together they General Hospital, which is a state govern- will still contribute $1.3 billion to the ment responsibility. He is too embarrassed to Queensland economy. talk about the Medicare package. What I have been talking about in this Senator Santoro—Talk about Cairns contribution is a very unhealthy mix of pol- where you live. icy and performance and a set of unrealistic expectations of performance in the Queen- Senator McLUCAS—I will talk about sland economy under the regressive policies Cairns any day, but I actually represent of the Beattie Labor government. We have Townsville as well. The point I am making, been talking about record tax takes, record Senator Santoro, is that the editorial in the grabs of dividends and debt from GOCs, Townsville Daily Bulletin yesterday identi- which some day will have to be repaid, and fied this strategy and suggested that Mr massive underperformance of basic service Lindsay and his colleagues could focus more delivery. I mentioned one very specific ex- on the work that they have some control

CHAMBER 11836 SENATE Wednesday, 18 June 2003 over—that is, fixing the problems that this tion—but that is another story for another government has caused for us all in Queen- day. sland. In 1998, during the election, everyone Speaking of problems that this govern- who was involved in that election campaign ment has caused for people in Queensland, remembers that there was a lot of discussion yesterday I raised in question time the issue about whether or not it was appropriate for a brought about by this government that is af- tax to be placed on a tax—that is, was it ap- fecting the marine park tourism operators in propriate for the GST to be attributed to any North Queensland. It is a very sorry example other tax? That debate in North Queensland of government ineptitude and inaction. It is a focused around the GST being applied to the shocking example of a government not tak- reef tax, the environmental management ing responsibility for the actions of its own charge. Liberal-National Party candidates for departments. those seats gave absolutely unequivocal as- Since 1993 a visitation charge has been surances to the marine park tourism industry applied to every visitor who travels to the that the GST would not apply to the reef tax, Great Barrier Reef. It is a charge that it is the environmental management charge. Not true to say was not welcomed by marine park only were those assurances given by those tourism operators when it was introduced. candidates at that time; the Association of But, in the wash-up, after the discussions, Marine Park Tourism Operators also took its they agreed to collect the charge—called the case to the then Assistant Treasurer to ensure environmental management charge, or com- that they were right—that the GST would not monly known as the reef tax in our part of apply to the reef tax. On 5 June 2000 an ad- the world. They agreed to collect that charge viser on taxation from the office of the then on behalf of the government. That was in Assistant Treasurer wrote to AMPTO and 1993. The discussions between government said: and the industry were protracted but eventu- The Government intends to include the Environ- ally, in good faith, agreement was reached ment Management Charge (EMC) in the list of between the government and marine park taxes and charges that do not constitute considera- tourism operators, who agreed to collect the tion for the purposes of the GST. tax on behalf of the government. It was rec- The adviser also said: ognised by all that, if the government itself ... the Treasurer has recently made a Determina- had to collect the tax, the charge would be tion that lists the taxes and other Government much higher. charges that will not to be subject to GST. Currently the reef tax is $4 a head but will That letter was received by AMPTO on 13 be rising very shortly. The funds, which are June in response to a letter that they wrote to collected by the operators and remitted to the the Assistant Treasurer on 23 February 2000. Great Barrier Reef Marine Park Authority, They did apologise for the delay in respond- are used for the management of the Great ing. That could not be more plain—the GST Barrier Reef. There is some concern at the does not apply to the reef tax—and so moment that the reef tax revenue is replacing AMPTO, in good faith, wrote to their mem- revenue that should be provided through a bers and said, ‘Do not collect 40c on the $4 government appropriation—it is replacing that you collect on behalf of the government, rather than supplementing that appropria- because the GST does not apply to it.’ So the industry happily went about their business.

CHAMBER Wednesday, 18 June 2003 SENATE 11837

The marine park tourism industry is a very (GST) to the environmental management charge important part of our tourism business in (EMC)/Reef Tax. North Queensland. It is a serious business That was a letter advising Mr Lindsay that he and a major part of our industry. Operators had made personal representations to Senator are very professional in the way that they Coonan. That is why I was very surprised operate their businesses. As you know, they yesterday when Senator Coonan said that she conduct diving and snorkelling, and that end only heard about this last week. Mr Entsch of the business is also conducted very pro- wrote to the Treasurer. Mr Entsch said: fessionally. They operate efficient busi- In the run-up to the introduction of the GST nesses, they are good business planners and the Marine Tourism Industry successfully lobbied they know their businesses, because it is very the government to have EMC exempted from the competitive. They track their costs very GST. I was intimately involved in this lobbying closely. and was personally assured by the then assistant treasurer that the EMC would be exempted from So it was more than a surprise in the sec- the GST. The basis of our argument was that it ond half of 2002 when the ATO started audit- was stated government policy not to levy a tax ing these operators and decisions started be- (GST) on a tax (EMC). ing handed down that reversed this govern- It is very clear that the view of North Queen- ment’s commitment. Operators in North sland was that the EMC would not attract the Queensland, and there are quite a few, have GST. The response that Mr Lindsay’s letter had bills from nearly $15,000 in one case to elicited from Senator Ian Campbell—and he potentially up to $60,000 in another. These then writes to the dive operator—says: are retrospective payments having to be paid to the ATO because the ATO has now You will note that the EMC/Reef Tax is not subject to GST when charged by the Great Barrier deemed that the GST is applicable to the reef Reef Marine Park Authority to the operator as per tax. If you are running a business, you can- the Treasurer’s determination. not be running it competitively when the He goes on: rules are continually changing. Some of those bills have been paid, and they have However, it is payable when the amount been paid reluctantly; otherwise, over 11 per charged by the operator to its customer includes cent in interest would be charged to those the on-charged tax as part of the make-up of the price. operators. Naturally when this occurred at the end of last year those operators contacted He has completely reversed the commitment their local members. Those local members that he and other Liberal-National Party then contacted, in one case, the Minister for members made to the industry in 1998. Revenue and Assistant Treasurer and, in an- This is a mess. It has only come to light other, the Treasurer. Mr Lindsay wrote to the and is only being acted on because I took the Assistant Treasurer and got this response opportunity to question Senator Hill in the from the Parliamentary Secretary to the environment estimates committee hearings Treasurer, Senator the Hon. Ian Campbell. some weeks ago. Senator Hill agreed with The letter said: me that there was a general view in the Thank you for your personal representations to community and in the marine park industry the Minister for Revenue and Assistant Treasurer that GST would not be applied to the EMC. I of 27 August and 10 September 2002 on behalf of then went to the finance estimates committee Ms L Crocombe, Adrenalin Dive ... concerning hearings and asked questions of the ATO. the application of the goods and services tax Senator Coonan was there and did not make

CHAMBER 11838 SENATE Wednesday, 18 June 2003 any contribution. There is confusion even in Barrier Reef; but, before you come, please the way that the ATO is applying its rulings. fix up the mess that you are causing marine One operator has been told that if it is col- park operators so that they can get on with lected separately—that is, it is not collected their businesses. in the ticket price—then the GST will not be Veterans: TPI Veterans applied. Another operator has been told that Senator BARTLETT (Queensland— if it has been collected separately—that is, Leader of the Australian Democrats) (1.13 not in the ticket price—then the GST will be p.m.)—I rise to speak today on the very im- applied. There is absolute confusion in the portant issue, which is very much a matter of industry. public interest, being faced by our veterans I am calling on the government to hold to in the Australian community today. As I hope its promise of 1998 and 2000. It needs to act all senators are aware, there is a rally being quickly to remove the questions over held out the front of Parliament House this whether some businesses will have to find up week of hundreds of totally and permanently to $60,000 to pay bills to the Australian incapacitated, or TPI, veterans and their Taxation Office. At the finance estimates partners and supporters from across Austra- hearings Treasury and the ATO advised me lia. Some of them have travelled from as far that it is within the power of the Assistant away as Perth and Queensland, my home Treasurer to bring in legislation to clarify state. The rally was organised by the TPI this matter once and for all. Those in North Federation as a result of this government Queensland who operate businesses out to once again taking no heed of the plight of the Great Barrier Reef need certainty. They TPI veterans in the recent budget. We have need to know where they stand. They need to some 26,500 ex-service personnel who re- operate efficiently and effectively because of ceive the TPI payment as compensation for the competitive nature of the business that disabilities that prevent them from undertak- they are in. ing paid employment for more than eight I go to the Cairns Post editorial of Thurs- hours per week. day 5 June. The Cairns Post agrees with me The TPI payment currently represents and says that this mess has to be fixed up. only 43 per cent of male total average The editorial says: weekly earnings. Of course, we all know that Given the government’s commitment that the average weekly earnings are actually much GST would not be applicable, the solution is easy. higher than what the average person gets as a Our politicians can pass the required laws be- wage, and the TPI payment is only 43 per fore Parliament rises for the winter recess; post- cent of that. By virtue of being totally and pone their annual jaunts to the North and keep permanently incapacitated, they are not able Parliament sitting while they amend the law; or to undertake significant extra amounts of face the ire of local tourist operators as the pollies paid work to top that up. So the level of pov- trek north— erty and hardship in the TPI community is and we would always welcome them— very significant and I absolutely know that it in coming months, when all the politicians really is not being adequately acknowledged by the want to do is enjoy our beautiful weather. government. Indeed, I do not think it is rec- I encourage anyone who is having a holiday ognised fully in the general community. over the winter break to come to Cairns, The Democrats believe the erosion in the Townsville or Mackay and enjoy our Great value of veterans’ compensation must be

CHAMBER Wednesday, 18 June 2003 SENATE 11839 reversed and that the TPI must be bench- has long been on top of the RSL’s priorities marked to try and turn around this decline in as well. We desperately urge the government its value. I want to put on the record exactly to respond positively to that recommenda- what the TPI Federation asked for in the tion. It is outrageous that it was not re- budget: firstly, to have Centrelink cease sponded to in this year’s budget. I have to counting disability pensions, which are com- say I really thought that this year, of all pensation payments, as income; secondly, to years, veterans would not have a need to have indexation of the special rate to total rally outside Parliament House. I could not average weekly earnings or the CPI; and believe that, after all of the chest-beating this thirdly, to immediately lift the special rate to government have done about supporting our 60 per cent of total average weekly earnings troops, saying how proud they are of them and, over the following two budgets, lift that and having welcoming home parades again progressively until 75 per cent is reached and today, they have done nothing to actually then benchmark it at that level. assist troops who have returned. To continue None of those things, of course, were ac- to ignore those strong demands from veter- knowledged by the government in any way, ans’ groups at the same time as wrapping yet all of them have been raised as con- themselves in the flag and saying how proud cerns—not just recently, but for many years. they are of our troops of today is just breath- Indeed, the issue of Centrelink counting dis- taking hypocrisy. These are the troops of ability compensation as income is something yesterday who have suffered as a result of that was acknowledged by this government their special service to this community and in its pre-election documents before it was they should not be continuing to suffer be- elected for the first time, back in 1996. So, cause of inadequate assistance today. for all of that period of time—over seven The Democrats, of course, were clearly on years now—the coalition has acknowledged the record as not supporting the recent war in this anomaly and acknowledged it as an in- Iraq, but we made it clear, as did this Senate, justice, but has refused to do anything about that that did not extend to our troops. There it. is a tradition of thought about just war— We saw, with last year’s budget, that there rules that have been established over the cen- was even a specific request from the De- turies on the right reasons to go to war and partment of Veterans’ Affairs to fund this the criteria that must be met for war to be measure. It was knocked back by Treasury just. There is another set of rules for just and the expenditure review group. Yet, a few conduct of war or rules of engagement. It has years ago, when questioned on this, the min- been well established that the Howard gov- ister said that it would only cost about $21 ernment failed the just criteria for going to million. To suggest that somehow the gov- war. However, in a number of ways, the cri- ernment cannot find around $21 million a teria for just conduct in war have been met few years later—perhaps it is now around by the way Australians conducted themselves $25 million, with inflation—for this long- in Iraq, including higher standards of proof standing need and anomaly is simply ridicu- that targets are military rather than civilian lous. and not supporting the use of cluster bombs or using depleted uranium armaments. It is In mid-February this year, the Clarke re- only a shame that the government does not view on veterans’ entitlements was released use its influence with our allies to ensure that and this was one of its recommendations. It they will do the same.

CHAMBER 11840 SENATE Wednesday, 18 June 2003

The Democrats opposed the justification to help veterans meet medical expenses. That given by the government in its decision to go was the one thing the Prime Minister pointed to war against Iraq. But that is very different to. Even with that one, it would have been from recognising the job done by our troops, great if there had not been a subsequent cri- who fulfilled the primary mission we hoped sis in the gold card system, with so many for: they came home safely. That does not doctors now refusing to accept the gold card mean that, down the track, they will not have because the associated government reim- war related physical or mental injuries as a bursement is too low. Basically, the govern- consequence of their service. For many of ment has been trying to get the medical pro- the men who are protesting outside parlia- fession to fund its lack of assistance to veter- ment right now, there was no welcome home ans in the health field. On the whole, the parade when they returned from Vietnam. longstanding list of veterans’ issues has been Over the decades, they have had to continue ignored, with the exception of some limited to fight for the compensation and rehabilita- measures taken for war widows a couple of tion that we as a nation owe them. years ago. I was very disappointed to hear I have been veterans’ affairs spokesperson the Prime Minister, on Perth radio on 15 for the Democrats since I came into this May this year, say this about TPI benefits: place in 1997. What I have seen is a steady ... somebody with eligible service on average you rise, and obviously a particularly steep rise got between 90% and 115% of male average this year, in the amount of attention that this weekly earnings which is somewhere in the order government is paying to medals, memorials of $44,000 a year. and welcome home parades—in short, activi- A few weeks ago in Veterans’ Affairs portfo- ties that allow coalition members to stand lio budget estimates I asked departmental next to people who have really achieved representatives to tell me what on average something. What we have not seen is any of TPI veterans receive and they said they did that funding and support going to increases not have that figure available. But that the in assistance for our veterans. I am not Prime Minister of this country I can only against the memorials, medals or marches, presume was deliberately misleading the but the tangible benefits of repatriation and Australian people into thinking that the aver- assistance have fallen behind. age TPI veteran gets around $44,000 a year, It has recently been revealed that the $6.4 or between 90 per cent and 115 per cent of million budget for the London War Memorial male average weekly earnings, when they get has now blown out by $3.5 million, with a less than half of that is an absolute disgrace. further $1 million blow-out to fund the dedi- We really need that rebuffed and the Prime cation ceremony. In answering that issue Minister to clearly indicate that he was yesterday, the Prime Minister said: wrong, because it gives that false impression that somehow veterans are rolling in clover There is no government that has done more in and living very well, thank you, thanks to the relation to commitment to veterans than has this, but that does not mean to say that every proposi- very generous government, when the fact is tion that is put to us on behalf of the veterans exactly the opposite. community is a proposition that we can meet. TPI veterans with qualifying service are The Prime Minister then went on to point to only one group. There are many veterans the only example of where he had actually across the broader community who also re- addressed a proposition. That was in the quire assistance, and there are wider issues budget—expanding access to the gold card there. But the specific focus of the lack of

CHAMBER Wednesday, 18 June 2003 SENATE 11841 improvements on the base payment for the sum. I attended part of the first hearing on TPI is one of the gaping holes in this gov- Monday night and have seen some of the ernment’s approach to veterans’ issues. The submissions. It is clear that veterans are be- TPI Federation has pointed out that to say ing severely ripped off through having to pay the gold card is part of an income package is back to the government more than they ever to say that a veteran is paying for his or her received in an initial compensation payment. own medical treatment. The value of the Another ongoing issue is revelations about Medicare card is never quoted as an income the exposure of our troops to toxic environ- component for others in society. For the gov- mental hazards from herbicides in Vietnam ernment to try to use the gold card as a to potentially depleted uranium in Iraq and measure of income for veterans is simply the impact these exposures may have not just dishonest. The government should not be on veterans but also on their children and misrepresenting to the general public the grandchildren. I notice that Senator Allison compensation that veterans receive. made a speech last night in this place about A number of veterans and their partners the impacts of depleted uranium. have written to me and raised this issue. One I urge all members of parliament to go in particular is the wife of a Vietnam veteran, outside and talk and listen to the veterans who has had multiple heart attacks and who were there. I acknowledge the presence strokes, and she now cares for him full time. of those veterans in the gallery today. She says it is obvious the general community We have seen today apparently the gov- increasingly believes she and her husband ernment cancelling question time in the must be well off, and she feels increasing House of Representatives so that some resentment when they access any sort of members of parliament, including the Prime concessions that they are entitled to. She has Minister, can attend the welcome-home pa- written a very reasonable letter to both the rade in Sydney. I guess it is okay for people Prime Minister and the Minister for Veterans’ to go to welcome-home parades and ac- Affairs asking them to reconsider what they knowledge and thank the servicemen and say in issues regarding veterans benefits. servicewomen and troops who have recently TPI and the issue of disability pension be- fought in Iraq, but I hope that the Prime Min- ing counted as income are by no means the ister and other members of parliament, as only veterans’ issues that require attention. well as going to Sydney to be part of pa- The government’s response to the Clarke rades, walk just 100 metres outside the front review, which in itself took quite a while, is of Parliament House and speak to some of yet to come and the draft new military com- yesterday’s troops, not all of whom returned pensation scheme is yet to come, and we safely, and TPI veterans who certainly have hope that those will go some way to dis- paid a very high price—a direct, personal charge the debt that we as a nation owe vet- price to the cost of their health—as part of erans. There is a Senate inquiry occurring their service to our country. presently, initiated by Senator Mark Bishop, The Prime Minister and other members of into aspects of the Veterans’ Entitlements Act parliament just having short conversations 1986 and the Military Compensation and with a few of the veterans rather than being Rehabilitation Service, MCRS, focusing on part of photo opportunities at welcome-home the offsetting calculations applied to veterans parades would be far more beneficial to the and ex-service personnel who opt to receive veterans of today and the veterans of the fu- a pension in lieu of a previously paid lump

CHAMBER 11842 SENATE Wednesday, 18 June 2003 ture, who are of course the troops that we are Bull, Mr Tas Ivan welcoming home today. They will also be Senator STEPHENS (New South Wales) future veterans. I am sure we would all like (1.28 p.m.)—I rise to pay tribute to the life wars to cease so that we no longer need to and contribution of Tas Bull, who died on 29 have veterans and people do not have to pay May. The enormous loss for his wife, Car- some of the prices that they do. But, whilst men, and sons Anders and Peder was also an ever we have troops who will put themselves enormous loss to Australia and to the world. on the line to fight for our country, we have a Tasnor Ivan Bull was given the name Tasnor special obligation to ensure that we do not to commemorate the birthplace of his Tas- just pat them on the back when they come manian mother and his Norwegian father. back, give them a nice medal and put in the Tas said he thought the Ivan was from an old paper a photo of them next to the Prime Min- boyfriend of his mother’s, and not Russian as ister but also continue to support them in the some wanted to believe. many years ahead where oftentimes they will Tas was born in Sydney on 31 January have direct consequences to deal with as a 1932 and was a babe in arms at the opening result of their service. of the Sydney Harbour Bridge. When he was There are individual stories. One story I five years old the family moved from Home- heard when speaking to people on Monday bush to Hobart. Following his father’s un- was about a veteran who is likely to have to timely death when Tas was 12, his family’s sell his very modest house because he cannot reduced financial circumstances and his afford the repayments. Because he has gone minimal interest in school prompted him to onto TPI, and the massive drop in income look for work to help his mother. He began that that has caused, he basically has to sell with part-time jobs while at school, but his his house. People should not be put in that real desire was to go to sea. It was in his situation as a result of their serving the coun- blood. Most of the men in his father’s family try. Another issue that was raised with me had been seafarers for generations. I suppose when I was talking to a veteran was about he showed early signs of his skills for net- recent reports that suggest that Vietnam vet- working, research, proactivity and general erans were exposed to twice the amount of get-up-and-go by frequenting the Hobart dioxin than was previously thought. In the wharves, looking at ships and talking with estimates hearing the other day the represen- seamen, hoping to find a ship that would take tative from the department indicated that the him on. output of that study has been referred to the In March 1946 he was successful. Leaving Repatriation Medical Authority. That is un- a very unhappy mother, he set sail for Mel- der way, which is good, but there is no re- bourne to arrange the paperwork for his first search specifically into the potential impact job at sea. He was back in Hobart and school on the health of children of veterans, and that three weeks later, as the shipping master was specifically confirmed. The ongoing would not allow a 14-year-old to go over- program of monitoring the mortality experi- seas. Undeterred, Tas advanced his age and ence of Vietnam veterans does not include eventually got away in December 1946 on a their children. Again, that injustice needs to British tanker bound for the Persian Gulf. He be addressed. (Time expired) says his mother was so upset she could not eat the strawberries and cream that he had

CHAMBER Wednesday, 18 June 2003 SENATE 11843 brought home for her to celebrate his good great workplace reform in the industry, cul- fortune. minating in 1993 with the amalgamation, Tas’s early life as a seaman was a fascinat- under his guidance, of the Seamen’s Union ing one. His autobiography, Life on the Wa- of Australia and the Waterside Workers Fed- terfront, the royalties of which he donated to eration, to form the Maritime Union of Aus- the MUA defence fund, described the many tralia. exotic ports and the hair-raising adventures, The safety of seafarers and wharfies was including jumping trains and sleeping in always a great concern for Tas Bull. He re- jails, enjoyed by Tas and his mates, with called a Macquarie Street specialist, Dr whom he maintained lifelong friendships. He McQueen, who in 1947 was appointed to developed a lifelong passion for travel but, weed out malingerers, and who concluded more importantly, it was a time of great that he was ‘forced into a real admiration for awakening and education. Tas himself said: a body of men earning a more or less ardu- ‘My union and political leanings were un- ous living, handicapped by gross and serious doubtedly shaped by my mother’s stories of abnormalities and paying a shocking price of the Depression. The main influence, how- premature old age and physical calamity’. ever, and my growing awareness of injustice, For Tas Bull, safety for workers was some- came from my time as a seaman, seeing peo- thing on which he would not compromise. ple living in conditions I could not have He guided his union’s protests against so imagined.’ many evils, including the flag-of- His early experiences in industrial battles convenience rust buckets, the lack of asbes- were during the waterfront strikes of 1954 tosis compensation, South Africa’s apartheid, and 1956 when, as a seafarer, he assisted the the export of uranium, French nuclear testing Waterside Workers Federation strike activity in the Pacific, the Vietnam War and threats to in Port Pirie and Hobart. He joined the Sea- dismantle Medicare. men’s Union of Australia in 1954 and the Tas was vice-president of the ACTU from Waterside Workers Federation in 1956. His 1987 to 1991 and senior vice-president from involvement in the infamous Hursey case in 1991 to 1992. He played an important role in Tasmania led to him writing, in 1977, Poli- the ACTU’s Accord with the Hawke gov- tics in a Union, his account of that dispute. ernment, and after his retirement he was the Tas left the sea and became a waterside chairperson of the ACTU’s Organising Cen- worker in 1956. He was then elected as a tre from 1994 until his death. Even after re- full-time union official—a branch vigilance tirement, he joined MUA bosses to fight Pe- officer—with the Waterside Workers Federa- ter Reith and the Patrick company over its tion in 1967, a branch president and federal forced waterfront reforms in 1998. councillor in 1970, and a federal organiser of Tas Bull was a member of the Communist the federation in 1971. He became assistant Party of Australia from 1951 to 1957, at general secretary in 1983 and was elected which point, amid splits and factionalism, he general secretary from 1984, serving until his did not renew his membership. After being retirement in December 1992. challenged by Simon Crean to stop being This was a time of great change, with con- ‘outside and criticising’, Tas joined the La- tainerisation—which Tas described as the bor Party in 1974. He belonged to the Water- most dramatic change in marine transport loo branch until 1976, when he transferred to since the switch from sail to steam—and the Hunters Hill branch. He was president of

CHAMBER 11844 SENATE Wednesday, 18 June 2003 the branch from 1993 until his death. I had system at the time and managed to arrange the great pleasure of attending their 60th an- for an airline to carry it to Cuba for nothing. niversary recently. Tas was too ill to attend, Always with him as his companion in his but his hand was evident in the organisation involvement in human rights and peace cam- of the event. He inspired his local branch in paigns was his wife, Carmen. the way he inspired the members of every Tas maintained his love of the sea. He group to which he belonged. tried to go sailing twice a week, even after he Tas was an international trade unionist and retired. He was a director of the Australian represented the Asia-Pacific region on the National Maritime Foundation, which sup- executive board of the International Trans- ports the National Maritime Collection at the port Workers Federation for 10 years. He National Maritime Museum. He was still was the Australian member of the Fair Prac- writing, and this time it was a book about his tices Committee and a director of the ITF’s seafaring adventures; hopefully, this will be Seafarers Club—the Boomerang Club—for published before the end of the year. over 20 years. Tas Bull’s funeral began at the overseas Tas Bull’s work was wider than his efforts passenger terminal, at Darling Harbour, with for his fellow workers. He had long been a march behind the funeral car, draped with interested in human rights and humanitarian the union banner, down the hungry mile. A matters, and after his official retirement he four-hour stoppage to coincide with the became chairman of Union Aid Abroad- march along Sydney wharves was supported APHEDA in 1995. In his eight years with by the two main stevedoring companies, Pat- APHEDA he made an enormous contribution rick and P&O. A minute’s silence was held to its development. He gave leadership and by unionists around the country. support in what APHEDA said was ‘an in- The gathering at Tas’s funeral read like formed, open and inclusive manner’. He who’s who of the Australian trade union gave advice, ideas, new partnerships and movement. His son Anders observed that Tas much-needed humour and wit in times of would have loved this particular stop-work difficulty. His counsel and advice was in- meeting—another chance to talk business valuable. and tell jokes. The National Secretary of the Tas was also directly involved in promo- Maritime Workers Union, Paddy Crumlin, tion, marketing, fundraising and program said that Tas ‘never stopped working for the delivery and he visited projects and staff in union movement’. Last year, Paddy sent a Cambodia, Vietnam, East Timor, Thai- message to Tas in Cuba, where he and his Burma refugee camps and Cuba. Tas had a wife, Carmen, celebrated his 70th birthday special interest in Cuba. He was a founding with friends and colleagues from all over the member of the Cuban Children’s Fund in world. He told Tas that he was ‘someone 1998. Tas led a mission to provide the Wil- who combines the energy of youth with the liam Soler Children’s Hospital with much wisdom of experience’ and that he was needed funding and equipment worth hun- someone with ‘an abiding trust in building a dreds of thousands of dollars to save the more empathetic, compassionate and just lives of newborn babies and young children society’. He could not have chosen a more with congenital heart diseases. It was typical appropriate location to celebrate, because Tas of Tas that he discovered equipment surplus admired ‘the tenaciousness of the Cuban to the needs of the New South Wales health people in seeking to find a life for all partici-

CHAMBER Wednesday, 18 June 2003 SENATE 11845 pants in their society, free of prejudice, greed the jobs that should follow. These are the values and exploitation’. that make a country truly great ... Jennie George commented at the funeral He also said: that Tas oversaw the transformation of an We will never find peace and security while our industry from which lots of jobs were shed neighbours, close or distant, suffer injustice; and but that he was able to retain the unity of his while, notwithstanding the most advanced tech- rank and file. Maybe this was because the nology, we are surrounded by those at home and rank and file knew not only that he was their abroad who are hungry and homeless. advocate but also that, from his earliest days, Vale, Tas Bull. when he went into a job he asked, ‘How will Budget 2003-04 we work this job?’ He was always so inclu- Senator HARRIS (Queensland) (1.41 sive. p.m.)—I rise in this matters of public interest Bob Hawke commented that Tas Bull had debate to deliver One Nation’s response to ‘a wide vision that went beyond the immedi- the government’s budget. This is a budget ate interest of his workers but looked at the that presents the Liberal and National parties’ interest of the nation as a whole’. An old continuing commitment to corporate social- Hobart school friend and former shipmate, ism—the privatisation of profit and the so- John Cleaver, said that Tas’s ‘deeply mean- cialisation of risk, the privatisation of the ingful friendships were legion. His socialist people’s assets, the advance of the user-pays morals and leadership made him a truly good principle, the demise of the family farm, the human being’. wholesale wrecking of manufacturing indus- When John Coombs spoke of the open tries; and the domination of multinationals house that Tas and Carmen had for friends over small business. from all over the world, he said that Tas No member of the government has dem- ‘even had friends from the employers’ side ... onstrated how free trade, deregulation and although mostly after they had retired and privatisation function to benefit the majority seen the error of their ways’. And Greg of Australians. The Treasurer says that Combet remarked that Tas ‘made a differ- Commonwealth debt has been reduced by ence to the lives of thousands of people in $63 billion. It is not good economic man- our society ... he was tough, intelligent and agement that has wiped out public sector pragmatic, and he always maintained his debt; it is the fire sale of our nation. The integrity’. government has sold $57 billion worth of Perhaps Tas Bull’s own words say it all. property and infrastructure that belonged to Commenting on the Howard government’s the people. The sale and lease-back of 59 support for the tactics employed by the Pat- government properties will cost taxpayers rick company, Tas wrote: millions in years to come. The rent on the Surely this raises some questions. Where is Aus- R.G. Casey Building, headquarters of For- tralia heading? ... We need to reset our course if eign Affairs, is nearly $23 million a year. It we are to continue to be a country that truly be- was sold for $197 million. In fewer than 10 lieves in a ‘fair go’ where ‘mateship’ ... is still years we will have eaten up the capital from that; where concern for the battler is genuine, not the sale of the building—short-term gain will a political gimmick; where we do care about the inflict long-term pain. sick, the old and the unemployed; where we re- Australia’s manufacturing industries were spect the Aboriginal people; and where we provide our kids with the schooling they need and good industries. Free trade policies have de-

CHAMBER 11846 SENATE Wednesday, 18 June 2003 stroyed this sector. The Productivity Com- Unemployment, work force casualisation mission and the unelected bureaucrats sitting and job insecurity are the bitter rewards of in Canberra recently declared that our tex- free trade. We have a country where one in tiles, clothing, footwear and leather indus- three workers will be casual workers by tries would wind down by 2015. This means 2010. Free trade permits foreign competitors that 70,000 Australian jobs will be lost. The to ruin Australian industry while denying our tariff on these items equates to 75c per year, manufacturers the ability to compete on per customer. Let me put that another way: equal terms with foreign rivals abroad. Such for a cost saving of 75c per year, per cus- ‘freedom’ leaves us to the tender mercies of tomer, we are going to put the jobs of 70,000 foreigners—our industry and commerce are workers at risk. I call on Minister Vaile to tell dependent upon special laws and regulations. the Australian people how that will make us Free trade is not about helping Third World more globally competitive. countries; it is about making Australia one of Senator McGauran—Mr Acting Deputy them. President, on a point of order: I want your Let me tell you about the very unpleasant ruling on Senator Harris’s contribution to the future for our primary producers. Twelve Senate at the moment with regard to it being months ago, 1,000 primary producers met in specifically on the budget. There are many Mareeba, in Far North Queensland. The budget bills to be debated in this parliament Deputy Prime Minister and National Party and, therefore, I wonder whether it is appro- leader, Mr John Anderson, made the state- priate that he use this time in the Senate to ment that there were approximately 85,000 debate the budget rather than the time allo- primary producers in Australia and that it cated to debate of the bills themselves. would only need 25,000 large corporate The ACTING DEPUTY PRESIDENT farms to provide the same product. Mr (Senator Sandy Macdonald)—Thank you, Anderson was telling those people in that Senator McGauran. There is no point of or- area that one in every three of them could be der. Senator Harris is perfectly entitled to done without, with enough product still be- speak on a matter of public interest, and he is ing provided for Australia. Beef producers also entitled to speak on the budget bills that are averaging the same for their cattle— are presently before the Senate. Senator McGauran—Mr Acting Deputy Senator HARRIS—Thank you, Mr Act- President, again on a point of order: I seek ing Deputy President. The Productivity your ruling on the comments just made by Commission, like DFAT, is encouraging Senator Harris in regard to the Deputy Prime businesses to move labour offshore. Couple Minister, John Anderson. Firstly, he is re- this with the General Agreement on Trade in flecting on the integrity of the Deputy Prime Services, which is a WTO treaty that allows Minister; secondly, he attributed a quote to foreign workers to come here and work for the Deputy Prime Minister which is utterly low wages, and you have a recipe for danger. unsourced and, given the record of the sena- We have already had reports of Indian IT tor, probably untrue. workers coming here as ‘natural persons’ The ACTING DEPUTY PRESIDENT— under GATS. They will reportedly get paid Senator McGauran, whilst you are entitled to $12,000 per annum whereas our Australian make your point of order and your contribu- telecommunications workers would receive tion is understood, your comments about $60,000.

CHAMBER Wednesday, 18 June 2003 SENATE 11847

Senator Harris were unparliamentary, and so guaranteed a fair proportion of the returns I ask you to withdraw them. from the ethanol.’ Senator McGauran—I withdraw them. One-quarter of dairy farms have gone out Senator HARRIS—On the point of order, of business since deregulation, and the mass Mr Acting Deputy President: the quote that I exodus is yet to come. There is no money in attributed to the Deputy Prime Minister was dairy exports. Some of the biggest farmers made in front of me at that meeting. are now exiting the industry and one of Aus- tralia’s largest herd recording services is The ACTING DEPUTY PRESIDENT— buckling. The losses from deregulation are I think we have resolved— compounded by the severe drought. An ex- Senator HARRIS—The Deputy Prime tension of the dairy assistance package is Minister was pointing out to that group of therefore vital. One Nation calls for reregula- people that there were at that time 85,000 tion and for farmers to get fair prices for primary producers. The point he made was their milk, and we support AMPA’s call for a that 25,000 corporate farmers could produce new dairy industry plan and a royal commis- the same amount of product. That is my sion. If we do not back farmers we face the point. dreadful possibility of importing UHT milk. Senator McGauran interjecting— It is quite possible that the entire market The ACTING DEPUTY PRESIDENT— could be served by UHT milk—92 per cent Order! Senator Harris, let us not debate the of the Japanese market is already supplied by point of order. Please proceed with your con- UHT milk. tribution. Nature made Australia unique. Our strong Senator McGauran—Was it a private quarantine laws keep it that way. One Nation meeting? opposes attempts to water down any quarantine laws. The SPS—sanitary and phytosani- Senator HARRIS—It was at a public tary—sections of the WTO affect our quar- meeting at which there were over 1,000 pri- antine laws. The intention of using food irra- mary producers. Beef producers are averag- diation as a global standard will detract from ing the same for their cattle this year as they our ability to keep out exports, exports that were in 1984. Listen to what some of the may possibly carry some form of disease. farmers are actually saying: ‘Canberra advis- Irradiation could eliminate fire blight from ers are useless’; ‘I might as well talk to a New Zealand apples, Pierce’s disease from post’; ‘AFFA is in a world of its own’; and Californian grapes and black sigatoka from ‘ABARE have no idea when they say the Philippine bananas. They would be allowed drought is over.’ Farmers need help to pre- in to compete against our local produce. We serve breeding stocks. They need genuine must not let the SPS agreement become a assistance for fodder and freight. They need backdoor measure to break down so-called more dams and water storage. Sugar mills technical barriers to trade. One Nation rejects are shutting down. Farmers are selling land proposals to weaken the risk assessment for urban development and millers will not process for food imports. have enough produce to process. One Nation says to Minister Truss, ‘If you are going to One of the most destabilising issues in re- help the farmers, why don’t you mandate lation to primary producers is the uncertainty ethanol in our fuel? This will assist the sugar that now arises in property rights. It stems industry, provided that the producers are from a proliferation of state government leg-

CHAMBER 11848 SENATE Wednesday, 18 June 2003 islation that purports to take away the rights don important social protections. For copies of the genuine Australian battler. In Queen- of that agreement, people can contact my sland, the situation is compounded by the Mareeba office. Labor government’s unwillingness to ensure Industry has announced extra funding for leaseholders have a right of renewal on their partnerships between CSIRO and the private properties. The combination of international sector. This is another step towards privatisa- treaties on the environment and climate tion. One hundred and fifty people per year change, which have been signed by the fed- have been retrenched from CSIRO. Over 400 eral government and are being implemented jobs have been lost in three years. This is by the state governments, mean that property slowly whittling away one of Australia’s pre- owners are unsure as to what they can do on mier research institutions. their own property, irrespective of whether In regional Queensland, small businesses their land is leasehold or freehold. On behalf are fighting a losing battle against Coles and of the Queensland people, I am taking a test Woolworths, the duopoly that controls 80 per case to the Federal Court to define the rights cent of Australian supermarkets. They give of property owners. the lowest prices to farmers, they import The coalition’s new weapon in its war produce when it suits them and they dictate against farmers is the proposed free trade what farmers grow. Small business cannot agreement with the US. Corporations and compete with their buying power. I reiterate their think tanks are driving this agenda. The One Nation’s call for an inquiry by the Sen- major lobby group, the Australia-United ate and by the ACCC into the supermarkets States Free Trade Agreement Business Coali- issue. Also in relation to the food sector, I tion, is spearheaded by companies like Car- repeat One Nation’s strong opposition to ge- gill, Caterpillar, IBM, Kelloggs, Mobil, netically engineered crops. They pose one of News Ltd and Proctor and Gamble. Agri- the most profound threats to the Australian business companies are the only ones lobby- environment. ing for the free trade agreement. A report of The threat of terrorism has placed un- the Rural Industries Development Corpora- precedented pressures on fundamental rights. tion says that the impact of free trade areas National security agencies have quickly and on our farmers would be negative. The costs unnecessarily increased their mandates. outweigh the benefits. It is a bridge too far. It ASIO’s budget has jumped more than $10 is time we packed up the whole box and dice million in one year. And all we get is a fridge called the free trade agreement and dumped magnet for a security blanket. One Nation it back in the WTO in Geneva, where it be- support the budget increase for our defence longs. forces. However, we oppose outsourcing of People comment that Canberra is out of defence contracts—some 60,000 per year touch. The further away a decision-making taken up by 10,000 companies. This is a wor- body is from where that decision is going to rying development in our national security. have impact, the harder it is for those who Education is being privatised by stealth. are making the decision to implement some- The following statistics reveal the true story. thing that is reasonable and reflects different In 2003-04, non-government schools are to areas. The IMF, through its annual articles of receive a 10 per cent increase in funding; it is agreement with Australia, has attacked proposed that government schools will get workers’ rights, reduced the welfare safety 5.5 per cent. Students in government schools net and persuaded the government to aban-

CHAMBER Wednesday, 18 June 2003 SENATE 11849 receive the equivalent of $51 each; students Abetz will take questions relating to the De- in non-government schools receive $284 fence and Foreign Affairs and Trade portfo- each. Non-government schools receive more lios and Senator Ian Macdonald will take funding than the higher education sector—a questions relating to the Environment and difference of $59 million. Heritage portfolio. In higher education, students could pay an QUESTIONS WITHOUT NOTICE extra 30 per cent for accessing HECS. Most Iraq students will have a debt of around $50,000 Senator FAULKNER (2.00 p.m.)—My by the time they leave university and will be question is directed to Senator Abetz, repre- paying around six per cent interest. Is this senting the Minister for Foreign Affairs. I what we call giving our young people a good refer to the Prime Minister’s comments last start in life? One Nation agrees that the new Friday when he said: funding for higher education should not be linked to workplace reform. One Nation ve- The intelligence was that Iraq did have a WMD hemently opposes the IMF’s workplace re- capacity and people should be more patient about the search that is going on. forms. The government you elected should not be working for the IMF. Minister, why did the Prime Minister tell this parliament on 4 February this year that the Once again, the federal government has international community must ‘act now to overlooked the community broadcasting sec- disarm Iraq’? If it is acceptable now to take tor. Community broadcasters require gov- time to search for Iraq’s banned weapons, ernment support for initiatives such as low- why was it unacceptable for the UN weapons cost broadcasting and station management inspectors to take a few more months search- skills training. Community radio is the only ing before the war, as Dr Hans Blix had ex- truly local, independent media sector in Aus- pressly asked for in his address to the United tralia. It is a vital resource in regional and Nations Security Council on 7 March? rural areas. (Time expired) Senator ABETZ—The government is MINISTERIAL ARRANGEMENTS very proud of the role that Australia has Senator ALSTON (Victoria—Deputy played in Iraq. I think the thousands of Aus- Leader of the Government in the Senate) tralians lining the streets in Sydney today are (2.00 p.m.)—by leave—I inform the Senate a testament to the fact that the vast majority that Senator Robert Hill, the Minister for of Australian people are similarly very proud Defence, the Minister representing the Prime of their efforts on our behalf. The coalition Minister, the Minister representing the Min- of the willing’s actions have removed a mur- ister for Trade, the Minister representing the derous despot and ensured that Iraq’s weap- Minister for Foreign Affairs, the Minister ons of mass destruction capabilities will be representing the Minister for the Environ- finally eliminated and, as a consequence, ment and Heritage and the Minister repre- never allowed to fall into the hands of terror- senting the Minister for Veterans’ Affairs, ists. Can I suggest to the Leader of the Op- will be absent from question time today. position in the Senate that there would be a Senator Hill is attending the Sydney march very big difference if that weapons of mass for defence personnel who contributed to destruction capability remained in Iraq whilst operations in the Middle East. During Sena- Saddam Hussein and his despotic rule were tor Hill’s absence, I will take questions relat- still in government there. The fact that Sad- ing to the Prime Minister’s portfolio, Senator dam Hussein has been removed makes the

CHAMBER 11850 SENATE Wednesday, 18 June 2003 search for these weapons less urgent, of 12-year period that these weapons of mass course, than it did when Saddam Hussein, destruction needed to be dealt with. Now we with his reign of terror, was still in power. have this fantastic proposition being put for- We are confident that coalition investiga- ward by the opposition that there were never tions will uncover the full extent of Saddam any weapons of mass destruction just be- Hussein’s weapons of mass destruction pro- cause we cannot find them at the moment. grams. Patience is needed as the process of Opposition senators interjecting— investigating more than 1,000 suspect sites Senator ABETZ—Mr President, before will take time. It will also require time to those on the other side laugh, would they encourage the Iraqis involved in the pro- laugh at this proposition: do they deny the grams to come forward and assist the inves- existence of Saddam Hussein? Have we ever tigations. The international investigative found Saddam Hussein? No. But they would team of more than 1,000 personnel is only deny, on the basis of their logic, that Saddam now being assembled and it includes around Hussein ever existed. We on this side happen 16 Australian experts. Saddam’s regime had to know, as a result of United Nations re- 12 years experience in concealing the pro- ports, that weapons of mass destruction did gram. exist in Iraq. (Time expired) Senator Carr—I thought you had it all Senator FAULKNER—Mr President, I locked up. That’s why we had them over ask a supplementary question. I do note the there. minister’s answer, particularly his claim that Senator ABETZ—Senator Carr has been current weapons investigations ‘will take so busily defending North Korea and is now time’. Minister, if it is acceptable now to take defending the Baath Socialist Party. Why time to search for Iraq’s banned weapons, you would seek to defend Iraq is beyond me. can you explain to the Senate why it was Saddam’s regime had 12 years of experience unacceptable for the United Nations weapons in hiding and concealing their weapons of inspectors to take a few more months search- mass destruction. Evidence suggests that ing for the weapons of mass destruction be- weapons of mass destruction capacity might fore the war? After all, that was what Dr have been dismantled and hidden in different Hans Blix expressly asked for in his address areas of Iraq before the war started. to the UN Security Council. Why is it ac- Can I reiterate that the legal justification ceptable to take time now and not to have for going to war was Iraq’s non-compliance taken time on that search before the war? over 12 years with a series of UN Security Senator ABETZ—Every single day that Council resolutions. Does the Leader of the Saddam Hussein was allowed to remain in Opposition actually suggest that the UN power saw more young children die in Iraqi resolutions over that 12-year period were hospitals because of his deliberate withhold- labouring under a misapprehension that in ing of medical supplies that were available fact there weren’t any weapons of mass de- within Iraq. People were taken off the streets struction and that there was nothing to worry and exterminated. There are mass graves that about? If that is what the opposition is say- the opposition must be aware of— ing, let them say so. But the reality is that the Senator Faulkner—I rise on a point of world community and the United Nations order. I ask you, Mr President, to direct the voted on 16 or 17 occasions because of the minister to answer what I think is a clear threat of weapons of mass destruction over a question: could the minister explain to us, if

CHAMBER Wednesday, 18 June 2003 SENATE 11851 it is okay to take time now to search for sible proposition supported by Gough Whit- weapons of mass destruction, why wasn’t it lam—in fact, proposed by Gough Whitlam before the war? That is the question. I ask amongst others—which would allow for a you to direct the minister to answer it. joint sitting of the parliament to be held The PRESIDENT—As you know, I can- when important legislation is twice rejected not direct the minister in the way he answers during the term of the parliament. There have a question. But, as far as relevance goes, I been a number of constructive suggestions will be listening. made about the proposal. Certainly Mr Lavarch has put something on the table Senator ABETZ—I was developing the which is well worth further consideration. answer, which of course hurts the opposition. I was painting a picture of a brutal dictator The next step in this process is to have a who had no regard for human rights. Why discussion paper circulated for public com- would we want to leave weapons of mass ment. We very much expect that we will get destruction, and the capability of using them, some sensible contributions, but that has to in the hands of somebody like Saddam Hus- be against the background of understanding sein when he had a proven track record of why these sorts of proposals need to be seri- using them against the Iranians and the ously considered. It is essentially because, Kurds within Iraq? Senator Faulkner and the whenever it comes to serious legislation, the Labor opposition would argue the case that ‘just say no’ party takes its orders from its he should have been allowed extra months trade union masters and blocks it in princi- with the potential to use those weapons. We ple—if it ever had any principles—because say no—(Time expired) that is what it is about. We have just wit- nessed a riveting sporting contest. Who was Howard Government: Senate Powers the winner? The winner was the guy that Senator SANTORO (2.08 p.m.)—My Labor elected some 21 months ago. What did question is to the Deputy Leader of the Gov- he say when he took over as Leader of the ernment in the Senate, Senator Alston. Will Opposition after the last federal election? He the minister inform the Senate of the next said— steps in the development of the Prime Minis- Senator Carr interjecting— ter’s proposed constitutional reform to ensure that elected governments’ efforts to act Senator ALSTON—Take notes because in the national interest are not unreasonably this is very important. We know who you obstructed by the Senate? What evidence is voted for. In any event, you should listen to there that this is a matter that needs to be this. Mr Crean said: urgently addressed? I want modern Labor to be known for what we Senator ALSTON—It is a very important propose, not just what we oppose. question that Senator Santoro has asked, and Let us test their track record over that 21- the Prime Minister’s address to the Liberal month period. In my portfolio area, there are Party convention a couple of weekends back the cross-media laws. Before the last elec- really brought into focus what has been an tion, the Labor Party were running around ongoing problem with the Senate. In many telling everyone who wanted to listen that ways, the media and others get it wrong be- they were in favour of cross-media reform. cause it is not really the Senate that is op- But, no, when they are back in opposition, posed; it is Labor that is opposed. What the they just say no. We saw the same on legisla- Prime Minister’s proposal involves is a sen- tion in relation to the postal sector. I note that

CHAMBER 11852 SENATE Wednesday, 18 June 2003

Senator Mackay is in the chamber. You do ence, led by their chairperson, Brian Don- not even have to talk about legislation. The nelly MP. On behalf of honourable senators, Labor Party make it plain in advance that I welcome you to the Senate and I trust that whatever we put up they are opposed to— your visit will be both informative and en- again, ‘Just say no.’ They have been opposed joyable. to legislation to try to restrict access to por- Honourable senators—Hear, hear! nography and gambling on the Internet. I QUESTIONS WITHOUT NOTICE cannot understand why. They even opposed legislation to stop people using FOI to get Iraq access to child pornography taken from the Senator CHRIS EVANS (2.13 p.m.)— Internet. You might think it is funny, Senator My question is directed to Senator Abetz, the Lundy, but I do not think middle Australia Minister representing the Minister for For- does for a moment. eign Affairs. I refer the minister to the evi- Senator Lundy—No, I think you’re dence given overnight to the UK House of funny. Commons Foreign Affairs Select Committee by two former British cabinet ministers, Senator ALSTON—These are very seri- Robin Cook and Clare Short. Does the How- ous public policy issues. When it comes to ard government have any response to both the budget, you would have thought—and these senior ministers’ statements that they some people will argue, ‘We only block a had each been separately briefed by MI6 in few here and there. We don’t block anything the period before the military conflict in Iraq serious’—that reform of the PBS system and to the effect that Saddam Hussein’s weapons the disability support pension arrangements of mass destruction did not pose any imme- were absolutely crucial if you wanted to keep diate threat? Given that Australian intelli- the budget balanced. I know they do not be- gence relied heavily on UK and US source lieve in balanced budgets, but we do. These material, can the minister confirm that the are very important initiatives. The only way Australian government was similarly advised we are ever going to tackle these problems is that Saddam Hussein’s weapons of mass de- to put the national interest ahead of internal struction did not pose any immediate threat? reflection, which is where they have been to date. How many times have the Labor Party Senator ABETZ—Let me correct Senator rejected unfair dismissal laws? On 33 occa- Evans. If the evidence was provided—and I sions. It is unbelievable. There was the sec- am not aware of that evidence—he says it ondary boycott issue, and on it goes. With was provided by Robin Cook and Clare anything to do with IR, we know before we Short. Robin Cook and Clare Short are not start that they get their instructions from the ministers but former ministers who have preselectors and away they go—just say no. fallen out with the New Labour government It is about time Labor faced up to the fact of Tony Blair. It is amazing how the Austra- that the public wants policy. (Time expired) lian Labor Party do not wish to be identified with New Labour in the United Kingdom. DISTINGUISHED VISITORS They are still back in the 1950s and 1960s The PRESIDENT—Order! I draw the at- with their policies and they are unable to tention of honourable senators to the pres- embrace Tony Blair, who has the over- ence in the chamber of members of a whelming support of the British people. parliamentary delegation from New Zealand, In relation to the evidence that these two from the Select Committee on Education and former ministers provided to a committee, I Science, led by their chairperson, Brian Don- CHAMBER Wednesday, 18 June 2003 SENATE 11853 am not aware of that evidence. Suffice to say, consistent with what was provided to the UK the government acted on the basis of the in- government? telligence provided to it, which was shared Senator ABETZ—I do not think the Aus- amongst coalition countries. It acted in good tralian Labor Party ought to be starting on faith. What is more, there has never been any the basis of confusion. It is the Australian doubt in the minds of the United Nations that Labor Party that are providing very confused there was a capacity for weapons of mass signals to the Australian people as to where destruction. Otherwise we would not have they stood on this conflict. had the 17 resolutions out of the United Na- Senator Chris Evans—Mr President, I tions over a 12-year period dealing with this rise on a point of order which goes to the very issue. Let me also remind honourable question of relevance. This is a very serious senators opposite that the only way Dr Blix issue. It is one of important public policy was allowed to go into Iraq to look for these debate. The minister has had two goes at it weapons of mass destruction was as a result and all he can do is rave on about the British of the build-up of certain coalition forces off Labour Party or the Australian Labor Party. the shores of Iraq. Dr Blix himself recog- He should answer about what the Australian nised that he would not have been able to get government knows about the intelligence into Iraq for the search for weapons of mass briefing given to it. He ought to be account- destruction but for the presence of the United able to this parliament. States and other forces off the coast of Iraq. The PRESIDENT—There is no point of I find it somewhat disappointing that the order, Senator Evans. The minister is only 17 opposition should be seeking to score politi- seconds into his answer so I think you should cal points on a day when we are having thou- give him an opportunity. sands of Australians welcoming home our troops that did such a fantastic job in the Iraq Senator ABETZ—Thank you, Mr Presi- situation. We on this side take tough deci- dent. It just shows the glass jaws that the sions on the basis of what is in the best long- opposition have on this issue. It was Senator term interests of this country and we have no Evans that raised the issue of confusion in doubt about the legality of what was under- his question. When I then seek to respond on taken by the coalition of the willing and we that very point he gets up on a pathetic point have no doubt about the morality and the of order to try to gloss over the embarrass- properness of what we did. ment of the Australian Labor Party’s policy failure. If Mr Crean is going to roll out poli- Senator CHRIS EVANS—Mr President, cies, let him roll out a consistent and coher- I ask a supplementary question. I acknowl- ent policy in relation to Australia’s involve- edge what I think is a fairly confused re- ment in Iraq and what he would have done if sponse to my original question but I want to he had been Prime Minister. (Time expired) put the central point again to the minister. Can the minister confirm that Australian Economy: Performance intelligence advice to government reflected Senator WATSON (2.19 p.m.)—My the MI6 advice that Iraq’s WMD capability question is directed to Senator Minchin, the was such that it had no credible device Minister representing the Treasurer. Will the capable of being delivered against a strategic minister advise the Senate of the benefits of city target? Can the minister confirm that the government’s sound economic manage- advice was provided to the Australian gov- ment? Is the minister aware of any alterna- ernment consistent with what was provided tive policies?

CHAMBER 11854 SENATE Wednesday, 18 June 2003

Senator MINCHIN—I thank Senator budget reply, we are already in a position of Watson for that question. Parliament en- having a $1.3 billion hole in the opposition’s dorses our $2.4 billion a year tax cuts as they policy platform. Of course they are always not only provide a significant benefit to Aus- pretending that their promises are costless, tralian taxpayers, of course, but they are also and of course they are not. Ross Gittins, who another sign of the benefits of good eco- is not the most pro-government economic nomic management. We are just about the commentator in the Australian media, only country in the world meeting increased summed up this situation in Monday’s Syd- defence and national security commitments, ney Morning Herald. He said: investing in key services, cutting taxes and On Medicare, Labor wants more money spent, running surpluses. Today we see more evi- but opposes increased reliance on user charges. dence of the virtue of good economic man- On higher education, it also wants more money agement with consumer confidence hitting a spent, but opposes increased reliance on user nine-year high, driven in particular by low charges. interest rates. We are unique among world So, does that mean Labor would increase gen- economies because we did make the difficult eral taxation to square the circle? Gosh no. It decisions over the last eight budgets to con- would cut taxes a lot more … that the measly trol spending, run surpluses and reduce debt. Liberals. All through those budgets the Labor Party, Gittins goes on to say: the opposition, have responded in virtually So is Labor prepared to nominate significant every case with cynical and short-sighted spending cuts? Gosh no. That might offend opportunism. We in the government are in- someone. trigued that the opposition leader, now re- Ross Gittins concludes: elected, is proposing to base his leadership Labor is selling two propositions: the Liberals from now on on big policies and big ideas aren’t putting enough money into government and, presumably, on a big target strategy. services and they’re making you pay too much That will be a 180 degree turnaround from tax. So it— the practice of both the opposition leaders the Labor Party— that we have had since 1996. wants to portray itself as the party of bigger gov- At every opportunity the Labor Party are ernment and the party of lower taxation. the party of the easy answer. On Medicare Which makes it the Magic Pudding Party. Un- they say, ‘Let’s just throw another billion der Labor, you can have your cake and eat it. dollars at it.’ On higher education they say, While Labor has been fighting over who is ‘Just promise another 20,000 university going to bake the magic pudding, we have places.’ They are still opposing our measures been getting on with the job of responsible in relation to the 2002-03 budget on the PBS economic management. and the DSP. What they did not do was factor Senator WATSON—Mr President, I ask a in that these measures involve savings. They supplementary question. What are the conse- have not factored that into their response to quences of that magic pudding? the budget. Their policy to oppose the PBS changes involves a cost of over $1 billion Senator MINCHIN—The consequences of the magic pudding of both bigger gov- over four years. Their stance on changes to the disability support pension will cost over ernment and lower taxation will of course be to return this country— $300 million over four years. Without them having acknowledged these costs in their

CHAMBER Wednesday, 18 June 2003 SENATE 11855

Senator Faulkner—I rise on a point of chair whether you like it or not and I am re- order. Are you seriously ruling in order the sponsible for order in the chamber. I believe, supplementary question from Senator Wat- and I have said before, that it is not in order son: ‘What are the consequences of the to approach visitors in our chamber during magic pudding?’ this time or at any other time. The PRESIDENT—I believe he asked Iraq about costs. Senator FAULKNER (2.26 p.m.)—My Senator Faulkner—Is that being ruled in question is directed to Senator Alston, repre- order? senting the Prime Minister. I refer the minis- The PRESIDENT—I believe it is, be- ter to statements made on Monday by the cause he asked a supplementary question Prime Minister concerning the discovery of a about costs. possible third mobile production lab for biological weapons in Baghdad. Is the minister Senator MINCHIN—If ever they got aware of the 28 May 2003 report by the CIA back into government, the magic pudding titled Iraqi mobile biological warfare agent party opposite would return Australia to the production plants in which the agency states: dark days of the Keating government, where we saw $70 billion of additional debt racked US forces in late April also discovered a mobile up in just five budgets, leaving us in a situa- laboratory truck in Baghdad. The truck is a toxi- cology laboratory from the 1980s that could be tion where we had $96 billion of debt to re- used to support BW or legitimate research. pay, two-thirds of which we have repaid. You cannot promise to spend more money and Is this the same truck that the Prime Minister reduce tax at the same time, which is the La- declared to parliament on Monday to be: bor formula. … a mobile biological weapons production facility and closely matches the description given to The PRESIDENT—Before I call Senator the United Nations Security Council in February Faulkner for the next question, I remind by the Secretary of State. Senator Brown and Senator Nettle of a Minister, why did the Prime Minister refuse statement I made after question time one day to add the caveat that the US intelligence about approaching visiting delegations. You analysts believe that this mobile lab could be have obviously forgotten about that state- used for legitimate research? ment, but I believe it is not in order to approach visiting delegations. I will furnish Senator Bolkus—Because he’s a liar. you with a copy of the statement I made. The PRESIDENT—Senator Bolkus, Senator Brown—Mr President, I rise on a would you withdraw that? point of order. During question time, a Senator Bolkus—I withdraw the claim Greens member of the New Zealand parlia- that the Prime Minister was a liar. ment was present in the chamber. I ask you Senator ALSTON—As the Prime Minis- to look at your ruling to see whether or not it ter has made clear on a number of occasions, is improper for the Greens senators in this it is a matter of taking into account a lot of place to approach her and welcome her. I intelligence information from a number of think not. sources. As long as you are acting responsi- The PRESIDENT—Senator, I have al- bly on that, are not embellishing it and are ready made a statement on this matter once putting forward your best assessment of the before. If you choose to ignore it, I am in the

CHAMBER 11856 SENATE Wednesday, 18 June 2003 impact and effect of that advice then you are, ple, that former Iraqi Deputy Prime Minister of course, in good standing. Tariq Aziz is reported to have indicated that Senator Robert Ray—Provided you go Iraq destroyed significant parts of its weap- back and check it at a later time. ons of mass destruction program when coalition forces started arriving in the region. The Senator ALSTON—If there are matters whole premise for this question seems to be that are brought to your attention that lead to that, unless one can come up with something a need for a significant revision, they are right now that is categorical evidence of the clearly matters to be taken into account. But proposition, we are entitled to pretend that it the Prime Minister is entitled to proceed on never existed. the basis of advice provided to him. In relation to mobile laboratories, I would not have Senator Mackay—It’s a CIA report! thought there was much doubt that Iraq had Senator ALSTON—The fact is that the mobile laboratories. If you want to give them whole UN itself proceeded on that basis. The the benefit of the doubt and say, ‘They could debate was about whether more time should have been used for nuclear purposes, there- be given for dismantling these weapons and fore we will presume they were not until whether they should in fact have been given some witness comes forward and gives evi- an opportunity to allow the inspectors in. As dence to the contrary,’ then you will never Senator Macdonald keeps saying, if Saddam get anywhere. It is not a matter of assessing Hussein did not have these weapons, why on hard fact in this area; it is a matter of making earth didn’t he simply cooperate from the judgments based on assessments. outset? He would never have had the prob- The fact is that as recently as November lem. But, of course, he fought to the very last year the United Nations itself, by virtue end. He was obfuscating. Even Hans Blix of resolution 1441, accepted the proposition and Mohamed ElBaradei were very con- that Iraq did have a whole raft of weapons cerned about the level of cooperation given. that were potentially able to be used for mass If that is the starting point in this debate, I do destruction. Whether it was anthrax or other not think you should simply try and pin it all disabling gases, the fact is they were there. on what occurred after the event. It is the The question is: what have they done with it basis on which the original action took place since? The question is not: ‘Let’s pretend that is paramount. they don’t have anything. As long as you Senator FAULKNER—Mr President, I can’t find something right now, that means ask a supplementary question. This is a spe- that they never existed.’ That is not the basis cific question about a statement made by the on which this whole debate has been con- Prime Minister in the House of Representa- ducted. tives on Monday about a possible third mo- It might suit your purposes to have a bit of bile production lab for biological weapons in revisionism in the post-mortem, but, quite Baghdad. The CIA said it could be used to clearly, the key issue is the basis on which support biological weapons or legitimate advice was taken that led to the coalition of research. I am asking why the Prime Minis- the willing going into Iraq and taking the ter failed to add the caveat that US intelli- action it did. It took that action on the basis gence analysts believe this mobile lab could of numerous intelligence reports, which ob- be used for legitimate research. Could you viously involved interaction between coop- please answer that. Given the government’s erative governments. I note also, for exam- stated reluctance to have a parliamentary

CHAMBER Wednesday, 18 June 2003 SENATE 11857 inquiry to consider these matters, what action across all capital cities, by an average of 38 does the government actually intend to take per cent? Does the government share the to verify the accuracy of claims made regard- concerns of the Reserve Bank Governor, Ian ing Iraq’s weapons of mass destruction, a Macfarlane, about the level of speculative very good example being the Prime Minis- housing and unit investments in our cities? ter’s own claim about this third truck? What action is the government planning to Senator ALSTON—The proposition ensure that property investors invest in af- seems to be that if you get advice that says, fordable rental housing and home purchase ‘These weapons could be used for peaceful and not just overpriced units? What has the purposes or they could be used for warlike government done in response to the calls by purposes,’ you say, ‘Therefore we won’t do the Brotherhood of St Laurence, Mission anything about it.’ That is what you are say- Australia and ACOSS for a national housing ing. We do not accept that proposition. What strategy or a plan to tackle the issue of hous- we are talking about is if they have a capac- ing affordability? ity to cause harm. If you think that, given the Senator MINCHIN—There are certain 12-year track record of Saddam Hussein, he facts on the table. Yes, house prices have should be somehow given the benefit of the increased substantially in most capital cities doubt, quite clearly you are never fit to run over the last few years but, as we have ac- the country. Quite clearly what was reported knowledged on numerous occasions—and I in the Bulletin today is dead right: the Aus- think it is the reality—you have to under- tralian people have fundamental reservations stand why that is and the consequences of it. about your capacity to deal with national It is driven by the strength of our domestic security issues. economy. It is driven by high levels of con- Honourable senators interjecting— sumer confidence—and today we have seen consumer confidence at a nine-year high. It Senator ALSTON—If you are going to is driven by us having what are, in Australian treat Saddam Hussein like someone in a kin- terms, very low interest rates. The housing dergarten who deserves to be patted and told mortgage rate was about 10½ per cent when not to do it again, then you really will never we came to office; it is now around six or 6½ come to grips with the proposition. The fact per cent. The consequence of that is obvi- is that we did not give Saddam Hussein the ously that Australians have the confidence to benefit of the doubt; we were prepared about go out and borrow and invest in housing. We his capability based on his 12-year track re- also have a relatively high immigration rate cord of intransigence. (Time expired) and a relatively high population growth rate The PRESIDENT—I remind honourable in this country by Western terms. That also senators that shouting across the chamber is increases the demand for housing. The con- disorderly. sequence of that is that Australians, by and Housing: Affordability large, are experiencing record levels of net Senator BARTLETT (2.33 p.m.)—My wealth. It is a de facto form of savings where question is to the Minister representing the the consequences of housing ownership are Treasurer, Senator Minchin. Does the minis- being reflected in the net worth of ordinary ter acknowledge that Australia has experi- Australians. That is at record levels. enced a sustained housing boom and that in We are very pleased that Australians are in the past two years housing prices in the Syd- this situation—that they are experiencing this ney area have risen by 45 per cent and, level of consumer confidence and rises in

CHAMBER 11858 SENATE Wednesday, 18 June 2003 their own net wealth on the back of these low Senator BARTLETT—Mr President, I interest rates. All of us want to ensure—and ask a supplementary question. If the gov- those of us with children want to ensure— ernment wants to ensure that housing does that future generations have access to afford- become affordable for purchase and for rent, able housing. The residential housing indus- surely it also needs to do more to keep hous- try being one of the great deregulated labour ing prices down. Apart from record levels of market areas, the flexibility in the house net wealth, we are also at a stage of record building industry in this country means that levels of net debt. Does the minister agree house construction costs are relatively low that the housing market and housing invest- and ordinary Australian families have as ment are already failing to deliver an ade- great an opportunity as probably any families quate supply of affordable housing? Does the in the world to buy affordable housing. Criti- government recognise that the lack of means cal to that is keeping interest rates at afford- testing for things such as the $1 billion first able levels. That will only come from re- home owners grant, the negative gearing tax sponsible economic management, keeping concessions which cost another billion dol- government debt down, keeping the govern- lars and the 50 per cent capital gains tax dis- ment in surplus or balancing the budget and count all result in very significant forgone ensuring that there is less pressure on interest revenues at the expense of low to moderate rates from the government sector. That is the income Australians who cannot afford either best thing we can do. We can also ensure that home ownership or affordable rental hous- the economy continues to grow so that peo- ing? ple can stay in jobs because jobs and levels Senator MINCHIN—There seemed to be of employment are critical to the capacity for a very odd intimation in that question that ordinary Australian families to continue to be somehow the federal government should able to afford housing. introduce price regulation of housing. That While we acknowledge the issues that would be an extraordinary proposition and Senator Bartlett refers to, and while to the one that would be rejected by almost every extent that if housing prices were to continue Australian. However, I thank Senator Bartlett to increase at these rates you might reach a for reminding me of the First Home Owners point at which you could start to have some Scheme which this government has in place. concerns for lower income Australian fami- It has done an enormous amount to ensure lies, everybody in the industry is saying that that young Australians can find the deposit to there must clearly come a day when housing purchase a house. It has been one of the best prices start to slow down. Indeed, in relation schemes we have had for ensuring that to the unit market, as the Governor of the Australians can own their own homes, and it Reserve Bank has been warning, we are see- is a scheme of which we are very proud. I ing prices flattening and most commentators thank Senator Bartlett for reminding me of it. predict that that will flow through to ordinary Iraq residential housing one day soon. We are Senator ROBERT RAY (2.40 p.m.)—I conscious of the issues you raise. Some in- direct my question to Senator Abetz, the teresting propositions with regard to housing Minister representing the Minister for For- affordability were raised at the national con- eign Affairs. Can the minister confirm that vention of the Liberal Party and we will con- the specific intelligence used in the Prime tinue to keep policy proposals of that kind Minister’s 4 February statement to parlia- under consideration.

CHAMBER Wednesday, 18 June 2003 SENATE 11859 ment about Iraqi attempts to procure uranium resenting the Prime Minister and the Minis- from Niger have since been comprehensively ter for Foreign Affairs. I refer to today’s disproved in the United States? Can the gov- minute to the Prime Minister from John Ey- ernment confirm whether intelligence agen- ers, the Acting Director-General of the Office cies have provided further advice on the is- of National Assessments— sue of African sources of nuclear material to Government senators interjecting— Iraq which confirms that the original infor- The PRESIDENT—Order! Senator mation was incorrect? Will the government Brown, ignore the interjections and address now correct the public record? your remarks through the chair. Senator ABETZ—I am aware of the Ni- Senator Alston—I rise on a point of or- ger situation in general terms. In relation to der, Mr President. There are two different the other African sources referred to by the ministers representing those portfolio areas. honourable senator, I am not aware of that Senator Abetz is looking after Foreign Af- and I will refer the question to the minister fairs and I am looking after the Prime Minis- for a substantive answer. ter’s portfolio. Senator ROBERT RAY—Mr President, I Senator BROWN—I will start again. I ask a supplementary question. I thank the will address my question to the Minister rep- minister for confirming that he is aware of resenting the Prime Minister. I refer to to- the Niger issue. He might like to comment to day’s minute to the Prime Minister from the Senate on whether the original statement John Eyers, the Acting Director-General of has now been proved to be incorrect and, in the Office of National Assessments, which light of that, whether there is a need for the says that a report was given to the govern- government to hold some sort of inquiry to ment two weeks before the Bali bombings by establish the veracity of the intelligence ma- the office which, in part, states: terial that the government relied on in genuine circumstances to make their decision to ... an assessment by an expert analyst on the basis intervene militarily in Iraq. Isn’t it a fact that of knowledge of Indonesian Islamic extremists’ attitudes and objectives— if some of that material proves to be less than accurate, it is a concern for future govern- pointed out that extremists saw tourist hotels ment reliance on intelligence material? on Bali and Lombok as being— Senator ABETZ—I thank Senator Ray havens of Western decadence— for his supplementary question in which he and further— did confirm that the evidence that was pro- that a tourist hotel in Bali would be an important vided at the time was accepted in genuine symbolic target— circumstances. That is what product differen- for terrorists. How on earth could the Prime tiates Senator Ray’s question from those of Minister not have instructed the Minister for Senator Faulkner and Senator Evans earlier Foreign Affairs not to make that matter pub- during this question time. In relation to the lic? Did the Prime Minister know about that matters that have been raised in Senator report? (Time expired) Ray’s supplementary question, I will pass Senator ALSTON—I can advise the Sen- them on to the minister as well. ate that the Australian government had no Iraq specific warnings of the Bali attacks. DFAT Senator BROWN (2.42 p.m.)—My ques- travel advice for Indonesia was based on all tion without notice goes to the Minister rep- information available at the time. The gov-

CHAMBER 11860 SENATE Wednesday, 18 June 2003 ernment does understand that the submission Senator ALSTON—You do not have to to the Senate inquiry from the Office of Na- be a Rhodes scholar to speculate that, if ter- tional Assessments confirms that there was rorists were interested in soft targets, they no intelligence warning of a possible terrorist could target areas that tourists might fre- attack in Bali. This fact has already been re- quent. You could just as easily say, ‘Yes, and ported by the Inspector-General of Intelli- they might actually identify the Melbourne gence and Security who concluded that the Cricket Ground as a high-priority target.’ It government had no prior intelligence about currently holds 70,000—maybe 100,000. the Bali bombings. Does that mean we should close down the I am informed that one ONA analyst, dur- Melbourne Cricket Ground? Of course it ing a broad briefing and in response to a does not. You take the advice you get on the question from the foreign minister, com- basis on which it is provided. If formal ad- mented that Bali, Riau and Singapore could vice is given to you that certain specific tour- be attractive targets to terrorists. The ana- ist areas or buildings are likely to be targets lyst’s observation was based on speculation of terrorism, then of course that is very spe- about what terrorist groups could do and was cific intelligence information. You would not based on any specific intelligence. There expect that advice to also contain a recom- was not one mention of the possibility of an mendation that you bring that to the attention attack in Bali in any of the 20 written ONA of the public. That is not what we are talking reports on terrorism compiled between the about here. I assume you are talking about foreign minister’s briefing in June and the the matter I canvassed in the earlier part of Bali bombing on 12 October. At the time of the answer, and that was in relation to specu- the Bali bombing, the DFAT travel advisory lation on the part of one analyst. That is a for Indonesia was already very strong and world apart from what you are pretending— was consistent with those of other Western (Time expired) countries such as the US and the UK. Foreign Affairs: Travel Advice Senator BROWN—Mr President, I ask a Senator LUNDY (2.47 p.m.)—My ques- supplementary question. Was it not negli- tion is to Senator Abetz, the Minister repre- gence on the part of the Prime Minister that senting the Minister for Foreign Affairs. I the report which said that tourist hotels in refer the minister to submissions made to the Bali and Lombok were attractive to terrorists Foreign Affairs, Defence and Trade Refer- then operating in Indonesia was not passed ences Committee published this week. Can on to the public? Moreover, I ask: is it gov- the minister confirm that ASIO assessed the ernment policy now that, where expert ana- threat to Australians to be significantly in- lysts say there are attractive targets for ter- creased following Osama bin Laden’s taped rorists where there are Australian tourists in message of 3 October 2001? Can the minis- other countries, that will not be passed on to ter also confirm that the Office of National the public? If that is the case, the public has a Assessments briefed the foreign minister on right to know about that. Will the govern- 18 and 19 June 2002 and warned that Bali ment not repeat the failure of the evidence was an attractive target for Jemaah Islamiah? brought forward that such tourists are in In light of the mounting evidence that the places which are potentially a target of a ter- intelligence agencies were warning of a pos- rorist attack on the basis that it would be a sible terrorist attack against Australian inter- symbolic target injuring the host country? ests in Indonesia, including Bali, why did the government choose not to upgrade its spe-

CHAMBER Wednesday, 18 June 2003 SENATE 11861 cific travel warning for Bali before the terri- honourable senator’s question was there for ble events of 12 October last year? her on the front page of the Canberra Times Senator ABETZ—Senator Lundy, can I this morning. express disappointment on behalf of Senator Senator LUNDY—Mr President, I ask a Kemp that you did not ask him a question. very specific supplementary question which I Having dealt with that, Mr President, I un- would like the minister to answer. Can the derstand Senator Lundy represents the Aus- minister confirm that as late as 20 September tralian Capital Territory. One would have 2002 the Australian Embassy in Jakarta was imagined that she might read her daily news- issuing a bulletin to Australian citizens in paper, the Canberra Times. If she had read Indonesia that said: the Canberra Times this morning, she would Bali is calm and tourist services are operating have seen there was a front-page article in normally. Australian tourists in Bali and Lombok fact answering the very proposition that she should observe the same prudence as tourists in put. other parts of the country. Senator Forshaw—You tell us you can’t In light of the evidence provided this week to believe what you read in the papers! the Senate committee, does the minister be- Senator ABETZ—I accept Senator For- lieve that this travel bulletin was accurate in shaw’s interjection; it is one of the few times all respects? they have got it right. The situation is that Senator ABETZ—I am aware of some of certain advice was offered. Mr Downer the submissions that have been put to the asked a specific question. That was part of Senate inquiry. That is a submission, as I the Canberra Times front-page story today— understand it, from one particular person. that Mr Downer specifically asked, as a re- There may well be other submissions in result of this advice, ‘Should a travel advisory sponse to that, to set the context. We have be issued?’ The answer was no. As a result, it already found that Senator Lundy in her first puts the complete lie to the suggestion of question today misrepresented the situation Senator Brown that there was some negli- by refusing to acknowledge that which was gence involved, because the foreign minister, on the front page of her own newspaper. having been provided with some advice, then Similarly, I am not willing to accept that followed through and asked the question that what she had just told us in fact represents one would expect every foreign minister the totality of the evidence before the com- concerned about his fellow Australians to mittee. ask—that is, should a travel advisory be is- Health: Disabilty Services sued? The response was that no, it was not Senator KNOWLES (2.52 p.m.)—My necessary. To suggest that any foreign minis- question is directed to the Minister for Fam- ter of any persuasion would deliberately not ily and Community Services, Senator the seek that sort of advice and thereby jeopard- Hon. Amanda Vanstone. Will the minister ise their fellow Australians is beyond belief. provide the Senate with the latest develop- It is beyond comprehension. That Senator ments in the negotiations with the states and Brown could even think of that proposition territories for a third Commonwealth State reflects on him and his mind-set, and it is Territory Disability Agreement? very disappointing from the Labor Party that they should be following suit as well in this Senator VANSTONE—I thank Senator line of questioning when the answer to the Knowles for the question. Along with other senators on this side of the chamber, she has

CHAMBER 11862 SENATE Wednesday, 18 June 2003 a particular interest in people with disabili- will be able to get to, which is a tremendous ties and the services we can offer them. Last result for people with disabilities. But there year the Commonwealth offered the states a is the matter of Australia’s largest state, New further $2.8 billion to assist them with their South Wales. Disability services in New responsibilities under the Commonwealth South Wales do not have the same level of State Territory Disability Agreement—$2.8 commitment from their government that billion over five years to help them with ac- those in other states and territories have. The commodation, respite and day services. That first offer I received from New South Wales is nearly $900 million more cash for the for growth funding to look after those who states than was provided in the last agree- need specialist disability services was for 1.5 ment. The condition was that the states per cent per annum. That is derisory. It is a would have to outline their five-year funding disgrace. It was insulting to disabled people commitments in dollars, giving us the growth and insulting to the other states to think that and indexation—in other words, putting their they could get away with putting in an offer money where their mouths are. of 1.5 per cent gross per annum, compared to The states were initially unwilling to a seven per cent average for us and, as I say, match the Commonwealth’s growth for all of around 12 per cent in our own areas. The its Commonwealth, state and territory dis- latest offer from New South Wales claims to ability funding, which was about 7.3 per be something like a four per cent increase, cent. Of course, the growth in our portion of but we cannot see it from looking at their it, for employment services, has been much documentation. It looks more like only 3.6— higher than that; it has been over 12 per cent. far behind the other states. I have told New But the growth for our whole Common- South Wales it is just not satisfactory. wealth State Territory Disability Agreement If we look at what the Institute of Health has been something like seven per cent, and and Welfare tell us, bearing in mind that New the states were unwilling to match that. We South Wales has a population a third greater expect the states to be improving services for than Victoria, they were able to assist just which they are primarily financially respon- over 6,000 people in accommodation ser- sible. Finally, after nearly a year has passed, vices; Victoria assisted over 7,000. So you I am pleased to inform the Senate that Victo- have a much smaller state providing more ria and Western Australia have signed up, assistance to people with disabilities. New and we expect the Northern Territory, the South Wales just does not know how to run Australian Capital Territory and South Aus- itself. Victoria provides 15 per cent more tralia to sign shortly. Queensland has made than New South Wales, despite being about an offer which looks very positive; Tasma- 25 per cent smaller. Victoria spent $4,233 per nia, sadly, has made an offer which does not. capita; New South Wales spent just over It does not provide a sufficient increase of $3,000 per capita. In other words, Victoria is commitment to people with disabilities from a smaller state but it spends 40 per cent more state funding. New South Wales is also still per capita than New South Wales. And then, unable to make a reasonable offer, but I will of course, there is the $40 million that New come back to that point. South Wales simply lost. (Time expired) It looks like the new five-year agreement Economy: Business Investment will provide state and Commonwealth fund- Senator CONROY (2.56 p.m.)—My ing of something like $5 billion more than question is to Senator Coonan, the Minister the last one. That looks like the position we

CHAMBER Wednesday, 18 June 2003 SENATE 11863 for Revenue and Assistant Treasurer. Is the The Labor Party oppose any choice, so a minister aware that AMP recently held an shareholder could not move if they did not annual general meeting following a $2.6 bil- agree with how shares were voted. It is a lion write-off, an announcement that the complete paradox the way in which the ALP company would de-merge its Australian and try to frame this policy. They do not know UK operations and an announcement of a which side is coming and which side is go- capital raising worth $1.2 billion, and yet ing. Senator Conroy, rather than looking on approximately 70 per cent of AMP shares the Web and trying to see what is happening were not voted? In light of the apathy of in the UK and the US and plagiarising all Australian institutional investors, demon- those policies, should get down to the real strated by this 30 per cent voting record, isn’t hard policy work of consulting on some of it time that the Howard government took these issues so that he can understand what action to require institutional investors to might be in the interests of shareholders. disclose their voting records? Senator CONROY—Mr President, I ask Senator COONAN—I must say it is great a supplementary question. In the light of to see Senator Conroy having recovered his AMP directors awarding themselves a pay voice. Chicken-hearted though it might be, it rise of 20 per cent as a reward for scrapping is great to have him back. I have missed their retirement payout policy, whilst AMP’s Senator Conroy in dispatches. Senator Con- share price continues to languish, would the roy, the situation as to voting shares and dis- minister agree that the self-regulatory ap- closing how shares may be voted is some- proach of the Howard government has been a thing that, as you well know, is being con- green light to corporate greed? sidered by the government as part of a suite Senator COONAN—As I said in my of responses in relation to the CLERP 9 pro- previous answer, shareholder activism has posals. It has been referred to in the ASX some arguments to support it but it is not the guidelines and it has also been referred to in be-all and end-all. Voting by superannuation a number of discussion papers, as Senator funds is not of itself necessarily evidence of Conroy well knows. Senator Conroy has active monitoring, nor is it evidence of the rather latterly jumped on the bandwagon of exercise of influence. There are other ways disclosure—Labor having been asleep at the in which retail shareholders can influence wheel on these issues for many years and, boards. The expense of having to get voting having woken up at about CLERP 9, of disclosed and to require compulsory voting course, now supporting it. on shares is not necessarily in the interests of There are some arguments in favour of shareholders and it is certainly not in the in- disclosure of how shares are voted but it is terests of transparency to require that to hap- certainly not the be-all and end-all. There are pen. Senator Conroy really needs to concen- ways in which to influence boards other than trate very carefully on what will deliver an by voting shares and by disclosing how you outcome for shareholders. This is a typical vote. It is paradoxical to suggest—as indeed knee-jerk reaction—it sounds good and looks I understand Senator Conroy does—that good but it does not necessarily—(Time ex- those who voted in relation to superannua- pired) tion funds should be disclosed. What could a Senator Alston—Mr President, I ask that shareholder do if they did not agree with further questions be placed on the Notice how a trustee voted? Paper.

CHAMBER 11864 SENATE Wednesday, 18 June 2003

QUESTIONS WITHOUT NOTICE: know whether the petrol they are buying ADDITIONAL ANSWERS contains ethanol and the nature of the blend. Manildra Group of Companies • These measures are designed to restore consumer confidence in the use of ethanol as a Senator MINCHIN (South Australia— transport fuel. Minister for Finance and Administration) Why is the Manildra Group receiving more than (3.02 p.m.)—Yesterday, in response to a $2 million per month from the Commonwealth to question about ethanol production subsidies undertake exactly the same monopoly activities as from Senator O’Brien to me representing the before the subsidy was introduced? Minister for Industry, Tourism and Re- • As part of the Government’s strategy to en- sources, I undertook to obtain additional in- courage the use of biofuels in transport over formation. I seek leave to incorporate that time, the Prime Minister announced on 12 further information in Hansard. September 2002 the introduction of produc- Leave granted. tion grants for fuel ethanol. At the same time, the Government removed the existing fuel The answer read as follows— tax exemption on fuel ethanol. Can the Minister confirm that an ethanol produc- • These actions are consistent with the Gov- tion subsidy of $17.13 million was paid to the ernment’s fuel tax objectives to provide a near monopoly company in Australia’s domestic more consistent and robust tax regime for fu- ethanol industry, the Manildra Group, between els and to provide a transition to an excise October last year and May this year? system which seeks to provide competitive • Yes. Between October 2002 and the end of neutrality across all transport fuels. May 2003, Manildra Energy Australia Pty • Manildra is not the only producer of fuel Ltd was paid $17,132,670. ethanol in Australia. Ethanol production Can the minister also confirm that during this grants are also provided to CSR Distilleries period Manildra marketed fuel containing ethanol and are available to any new producer of fuel concentrations of 20 per cent—a level the gov- ethanol. ernment has now finally acknowledged is not safe • I understand there are some 15 fuel ethanol for Australian cars? plant developments or expansions that have • The Government had been advised by been proposed primarily in rural areas of Manildra that it had been marketing up to Queensland and New South Wales. All of 20% blends. The Government in consultation these new developments can apply to receive with industry has been examining the appro- the fuel ethanol production grants once op- priate level of ethanol blends in petrol. On 11 erational. April 2003, the Minister for the Environ- QUESTIONS WITHOUT NOTICE: ment, the Hon Dr David Kemp announced the Government’s intention to set a 10 per TAKE NOTE OF ANSWERS cent limit for the blend of ethanol in petrol Iraq effective from 1 July 2003, while tests on the Senator FAULKNER (New South effects of higher blends of ethanol in petrol Wales—Leader of the Opposition in the Sen- on vehicles continue. ate) (3.02 p.m.)—I move: • The Government is taking action to amend That the Senate take note of the answers given the Fuel Quality Standards Act 2000 to allow it to require labelling of ethanol blends. by the Minister for Communications, Information Technology and the Arts (Senator Alston) and the • The Government has taken this action be- Special Minister of State (Senator Abetz) to ques- cause it believes consumers have a right to tions without notice asked today relating to the existence in Iraq of weapons of mass destruction.

CHAMBER Wednesday, 18 June 2003 SENATE 11865

We have had a situation today where Senator of whether Australian intelligence services Abetz has represented Senator Hill in the also proposed to the government the same portfolio of Foreign Affairs and Senator advice that MI6 gave to the UK government: Alston has been the Acting Leader of the that Iraq’s weapons of mass destruction ca- Government in the Senate. They have been pability was such that it did not have a credi- asked serious and important questions in re- ble device capable of being delivered against lation to the issue of weapons of mass de- a strategic city target. There was no answer, struction, and the answers from both minis- no explanation. ters have been absolutely woeful. The atti- Then we had the key issue of what Mr tude of Senator Alston and Senator Abetz Howard said about the mobile biological underlines the immediate need for a full and weapons production facility—again, a very thorough parliamentary inquiry into weapons important issue—a laboratory characterised of mass destruction. as a ‘toxicological laboratory from the 1980s There has been no coherent argument pre- that could be used to support biological war- sented by the government against such an fare or legitimate research’. Apparently the inquiry. There is a great deal of public un- other two suspicious trucks were manufac- ease about the reasons the government gave tured in Britain, to make hydrogen for artil- for the troop deployment to Iraq, and none of lery balloons. When we now know that that those concerns has been alleviated in the was the assessment of the CIA, why did Mr parliament today. When Senator Abetz was Howard provide such a qualified statement asked why, if it is acceptable now to take in the House of Representatives on Monday time to search for Iraq’s banned weapons, it this week? I believe that Mr Howard is again was unacceptable for the UN weapons in- trying to justify his case by misleading the spectors to be given some time to continue parliament. He did not outline the CIA’s their work prior to the invasion of Iraq—of qualified assessment. There is no direct evi- course that is what Dr Hans Blix expressly dence that the third truck was used for bio- asked the UN Security Council for on 7 logical warfare. The government’s case in March—there was no answer, no explana- relation to the issue of weapons of mass de- tion, no reason forthcoming and no capacity struction, after question time in the Senate from Senator Abetz to provide an explana- today, stands in absolute disarray. It is time tion. for the government to come clean and to Senator Abetz was asked about the state- hold the parliamentary inquiry that is now ments that former UK Ministers Cook and long overdue. Short had made in the House of Commons Senator FERGUSON (South Australia) foreign affairs committee. They said that (3.07 p.m.)—One is not surprised when they had been separately briefed by MI6, in Senator Faulkner starts off his little tirade by the period before the military conflict in Iraq, suggesting that the answers given by Senator to the effect that Saddam Hussein’s weapons Abetz and Senator Alston today were abso- of mass destruction did not pose an immedi- lutely woeful. It would not matter what an- ate effect. When Senator Abetz was asked swer was given to Senator Faulkner, he whether the Australian intelligence services would only ever describe it as being abso- relied heavily on the same UK and US lutely woeful. I happen to think, and so do source material, there was no answer. Again, other members on this side of the chamber, no information was provided to the Austra- that the answers given by Senator Abetz and lian parliament on this very important issue Senator Alston adequately covered the issues

CHAMBER 11866 SENATE Wednesday, 18 June 2003 that were raised in the questioning. A judg- in the Labor Party. They seem more con- ment made on the basis of intelligence pro- cerned about how the decision was arrived at vided to this government has resulted in the than the fact that this tyrant has gone. removal of one of history’s great tyrants. The Whether they wanted him to stay I simply do opposition seem to overlook that. A man who not know. Maybe they did not want the Aus- would put human beings through shredding tralian forces, together with Great Britain machines has been removed from office and and the United States, to remove this person his regime has been removed forever, and the and his regime. Maybe they wanted him to opportunity for weapons of mass destruction stay, but I think that all the atrocities we have or the capability of building weapons of seen in recent times alone were enough rea- mass destruction has gone with that. I think son for us to join the coalition of the willing that is what we ought to be rejoicing about in to protect the people of Iraq. this country—the fact that such a tyrant no They raised the issue in question time longer exists in Iraq and the horrific brutality about what is happening with the British that he inflicted on the people of Iraq over a House of Commons committee which is cur- long period of time will not be seen again for rently taking evidence. I would have thought a long time. that revealing information that would have When we think of the small number of been given to former Ministers Cook and casualties that occurred in this war, both Short confidentially as ministers in relation military and civilian—which quite possibly to the intelligence that was available says were no more than the number that Saddam much more about those former ministers Hussein got rid of in a single day—that than it does about the advice that they were ought to put things in perspective. As a result given, which they have now made public. We of a judgment that was made on the basis of have also seen that former ONA analyst An- intelligence that was provided to this gov- drew Wilkie plans to appear before the for- ernment, the coalition of the willing acted. It eign affairs committee. He is a private citi- acted not only because of that intelligence zen, so he is quite welcome to go and give information but also because of the fact that his views to that committee, but when think- Iraq and the Iraqi regime had constantly re- ing of Mr Wilkie’s contribution we ought to pudiated some 18 United Nations resolu- remind ourselves of the statement that was tions—some 18 resolutions that they refused made by the Director-General of the Office to obey. The reason and the legality for going of National Assessment, Mr Jones, concern- into Iraq was the fact that they continued to ing Mr Wilkie’s resignation in March, when refuse to comply with the United Nations he pointed out that he had been an analyst resolutions. working mostly on illegal immigration issues Those resolutions, by their very nature, in a branch that was not responsible for confirmed that Iraq did have weapons of ONA’s coverage of Iraq. I think we ought to mass destruction capability. It was agreed, put that into proper context when we are before those resolutions were put, that in fact thinking about the contribution that may be they did have weapons of mass destruction made by the former ONA analyst Andrew capability. On the basis of that and all the Wilkie when he appears before the House of available information, this government took Commons foreign affairs committee, if inaction to join the coalition of the willing to deed he does. (Time expired) rid the world of this tyrant. I for one am very Senator CHRIS EVANS (Western Aus- glad they did. I do not know how people feel tralia) (3.12 p.m.)—This is an important de-

CHAMBER Wednesday, 18 June 2003 SENATE 11867 bate because I think, as we saw from Senator by the government and, like all the opposi- Ferguson’s contribution and the answers by tion spokesmen and our leader, I took those Senator Abetz in particular today, the coali- briefings to be accurate. We, like the gov- tion government are trying to treat Austra- ernment I presume, responded to those brief- lians like fools. They are trying to convince ings and assumed that the intelligence being them that they ought not worry about the provided to us, which formed the basis of justification used for the war that was ad- those briefings, was accurate. If that is not vanced before the war and that they ought to the case, then there is a very serious concern forget all that and say, ‘The end justifies the for the whole Australian community. I think means.’ Senator Ferguson today reckoned it the government are trying to treat Australians was all about the atrocities committed like fools, because a lot of Australians, in- against the Kurds. It took 15 years for him to cluding many who supported the war most get angry about that. The reality is that the strongly, are concerned about the suggestion government said it was not about regime that the intelligence used to justify the war change. Senator Hill in this chamber and Mr might have been flawed. It is a very impor- Howard in the other chamber made it very tant issue for Australia, and we need to get to clear that our involvement in Iraq was justi- the bottom of whether or not the intelligence fied by the threat of WMD—the threat that that we relied upon was accurate. Just as we Iraq and Saddam Hussein’s regime posed to are concerned about what intelligence agen- the world, and to their neighbours in particu- cies might have provided in relation to the lar, through their use of and capability of Bali bombings and whether we should have producing WMD. That is all on the public or could have known or could have had bet- record. ter information, equally in this case we want We see now that the government do not to have a very clear understanding of want to debate that. They do not want to fo- whether or not intelligence which we relied cus on those important issues about whether upon to go to war was in fact correct. that threat was real or not. They want to talk Senator Hill said in August 2002 that there about how the end justifies the means and was a need for evidence before we joined invent a whole new set of justifications for America in any military action in Iraq. He the war. We are trying to focus on a very im- said that we could not join America in mili- portant debate and a very important ques- tary action in Iraq unless that evidence was tion—that is, was the intelligence used by provided. So we then saw produced the intel- the Australian government correct? Was the ligence assessments that Senator Hill and, government’s decision to go to war in Iraq obviously, the Prime Minister, along with the based on correct intelligence or was that in- rest of the national security committee, used telligence flawed? There is a secondary ar- as their justification for war. Some of that, gument going on in Britain about whether or they claimed, was Australian sourced mate- not the British government somehow mis- rial. So it is not just a debate about what we construed, abused or fiddled with that infor- got from the UK or the US; it is also a debate mation to create a case. The argument in about Australian sourced material because Australia to this stage has been one purely the Prime Minister, in his address to parlia- about whether or not the intelligence re- ment in February, in justifying military ac- ceived by the government was correct. tion in Iraq, made it clear that some of this As shadow minister for defence, I re- intelligence was in fact Australian sourced; it ceived briefings on these matters provided was our own intelligence. So there are ques-

CHAMBER 11868 SENATE Wednesday, 18 June 2003 tions that go beyond the inquiries that are what they do. So the government has got it occurring in the United Kingdom and the right on Iraq and the opposition, as usual, has United States, because they actually go to got it wrong. Australian sourced material and directly to Saddam Hussein, so we were told by the the role of Australian intelligence agencies. It opposition, was a terrible man and he must is important that we come to terms with that. be removed, but he must be removed with The Australian public are not mugs. They the tick of the United Nations and with the are not going to be convinced that the end tick of the French. As we in this chamber all justifies the means. They are glad that Hus- know, the French were responsible for giving sein has gone, as we all are, but they do want Saddam Hussein a nuclear reactor back in to know whether or not they were misled, the eighties. What an outrageous concept for they do want to know whether or not our the Labor Party to bring into this chamber! intelligence services are providing good He is a man who has murdered thousands quality product and they do want to be able upon thousands of people, hundreds of thou- to rely on our intelligence services to provide sands of people—women and children, accurate information to justify major deci- young people and the aged. As we stand here sions such as going to war. We do need to be and talk now, they are digging bodies up and reassured about those things, and the gov- mass graves are being discovered—and the ernment’s stonewalling on this issue only Labor Party wants to say that Iraq was not a breeds concern and cynicism that there is threat. There are biological weapons manu- something to hide. We ought to have a very facturing facilities which Senator Faulkner full inquiry to be sure that what we were wants to say could have been used legiti- provided with was accurate and that there mately. Of course every scientific establish- was no suggestion that that intelligence was ment that is used in the production of weap- manipulated. (Time expired) ons of mass destruction could also be used Senator JOHNSTON (Western Australia) legitimately; it is just so obvious it beggars (3.17 p.m.)—Before I address the particular belief that he would try to bring it into this issues raised in this very important debate by chamber. honourable senators on the other side, my Importantly, let us look at why the Labor attention is drawn to the fact that, with our Party have got this wrong. They are the ones defence personnel having completed a very who simply could not address the issue of successful operation in Iraq, time needs to be the threat. They could not understand this spent on saying what a magnificent job our threat of weapons of mass destruction. They Australian Defence Force personnel did in could not understand the history of the lead- Iraq. I refer to the SAS—fabulously profi- ership of this despot in Iraq having murdered cient and professional in carrying out their hundreds of thousands of people and having very difficult and dangerous tasks, all with used gas and having used torture—all of the no casualties—and the Navy’s mine clear- outrageous and repugnant methods used. ance divers—these very professional and They could not bring themselves to under- proficient men carrying out a most danger- stand that weapons of mass destruction were ous task in disarming and clearing mines— a threat. Even when missiles were landing on and of course our FA18 pilots and our navy Kuwait City, missiles that should have been ships in the gulf. What a magnificent per- banned and should have been declared to the formance! Indeed, as their commanding offi- weapons inspectors, the Labor Party were cer said, they are amongst the world’s best at still not convinced that the regime in Iraq

CHAMBER Wednesday, 18 June 2003 SENATE 11869 had the capability of producing weapons of litical scenes and we will leave it there. The mass destruction. It really beggars belief. In real question here is not whether the gov- fact, it is simply an example of the total lack ernment has in any way misled the Austra- of credibility of the opposition. lian public as to the nature of the intelli- In this climate, when their own standing gence; it is whether that intelligence was amongst themselves is in disarray, they are accurate enough for a government to base its reduced to clutching at this straw, and what activities on. are they saying? They are saying, ‘Let’s We know that there would be very little check and see if the intelligence was correct.’ input into Australia from its own intelligence Let us do that, but of course if the intelli- agencies on issues relating to the Middle gence is proved to be correct over a much East. Australia happens to be part of an intel- longer period of time than the month and a ligence club in which intelligence is shared. half that has expired since we have had ac- We share intelligence with the United States, cess to this country, let us not jump to con- the United Kingdom, Canada and New Zea- clusions because of a political convenience land. We have our own specialities. We put that the Labor Party need to hang a hat on in into that pool; we withdraw from that pool a time of crisis—and that is what this is all material that others put in. The overwhelm- about. If we did have a viable opposition in ing, if not the exclusive, amount of intelli- this place today, they would have supported gence and analysis on Iraq would have come the government in identifying the threat. The from overseas sources and not Australian comparison between Labour in England and sources. We as a country, and the govern- Labor here is absolutely stark. It shocks the ment, would have had to rely on that infor- mind to think that people from a labour mation. Having relied on that information it movement can be so completely opposed in is time that it was checked—not just looked logic and credibility. So for Labor senators to at to make the political point about whether come here and say that Iraq is not a threat, intervention was justified in the past. That is and never was a threat in the face of all the not the major concern. As people have said, history, simply underlines the fact that again weapons of mass destruction and the spon- on national security they have got it wrong. sorship of terrorism were all reasons we wor- Senator ROBERT RAY (Victoria) (3.22 ried about Iraq. If that does not prove to be p.m.)—We have heard a very misleading valid then the very fact that it was a dictato- speech from Senator Johnston in which he rial, vicious and malignant regime may well claimed that Labor do not say that Iraq was justify the action. But think of the future. If or could have ever been a threat. What we the intelligence was not correct on that occa- are simply about here is asking that the intel- sion, what acts will we take in future on in- ligence on which this government based its accurate intelligence? actions be in fact benchmarked now and into I am one that believes it is not fair to say the future. As I said in my supplementary that all intelligence agencies will get it right question—I do not know why it surprised on all occasions. They are fallible. There is Senator Abetz—at this stage the Labor Party no way intelligence agencies can predict all have not accused the government of tricking future results. That is impossible. Given or duping the Australian public with regard modern technology and the human mind, that to the intelligence it received. We know that becomes an impossibility. And it is an im- accusation is made against the US and the possible expectation that we would place on UK governments in their own domestic po- them. Nevertheless, in saying a country is

CHAMBER 11870 SENATE Wednesday, 18 June 2003 developing or possesses weapons of mass basically fairly non-partisan, that is mature destruction, we need to know how accurate and that has a record of never leaking. We that information is. I had no reason to disbe- could have considered these matters. I hope lieve it six months ago. What we have had is that is the way it eventually transpires. evidence from a Senate estimates committee Question agreed to. that only 20 per cent of the potential sites NOTICES have been searched. Usually that is an indi- cator, but let us not take it as such. It is pos- Presentation sible that there are hidden away somewhere Senator O’Brien to move on the next day in Iraq weapons of mass destruction. And, of sitting: yes, the people searching for them should be That there be laid on the table, no later than given time. But the attitude of this govern- immediately after motions to take note of answers ment is extremely defensive. We had defen- on Thursday, 19 June 2003: sive answers today. We had misleading take (a) draft regulations to be made under the note speeches, specifically from Senator Energy Grants (Credits) Scheme Bill Johnston, who tried to distract us from the 2003; basic issue. This government needs to front (b) draft regulations to be made under the up to the issue: was its intelligence right or Energy Grants (Credits) Scheme was it wrong? It is not a hanging offence if (Consequential Amendments) Bill 2003; the intelligence agencies got it wrong for the and government but it does mean that in future (c) records of any meetings at which we might have to apply a little more critique members of industry or other groups to the intelligence and the analysis that we with a potential to be affected by the are receiving. We raised one issue today and passage of these bills were permitted to that was the uranium coming from Niger. examine the draft regulations referred to above. That has been disproved. The government will not go fully on the public record and Senator Allison to move on the next day say, ‘Sorry, we were wrong on that.’ The rea- of sitting: son you have rubbers on the end of pencils is That the Senate— that everyone makes mistakes. And that was (a) notes the report on the health of Iraqi a mistake. But we need to know as a country children by UNICEF published in May how many other mistakes should be there. 2003, which indicates that: I have argued strongly that there should be (i) acute malnutrition rates in children an independent inquiry into the intelli- under five have nearly doubled since gence—not rushed in a week or two in a po- the previous survey in February 2002 and 7.7 per cent of children under five litically partisan way, but in a mature way to are suffering from acute malnutrition evaluate that intelligence as it applies to the and, without treatment, are at very results found in Iraq. The government has high risk of dying, not acceded to that and we could well run the (ii) unsafe water from disrupted water risk later today of adopting a more radical services and the resulting rapidly and a more stupid approach to these matters increasing rates of diarrhoea may be than we otherwise should. This should have playing a significant role in this been a matter referred to the joint intelli- malnutrition, and gence committee by the minister in order to (iii) one in ten children is in need of establish the facts—to a committee that is treatment for dehydration;

CHAMBER Wednesday, 18 June 2003 SENATE 11871

(b) notes the 19 May 2003 update from the the Government’s package is the United Nations (UN) Office of the facilitation of co-payments to be charged Humanitarian Coordinator for Iraq, by doctors who currently bulk bill which indicates that in Iraq: Australian families, as well as to make it (i) distribution systems have broken easier for doctors who currently charge a down, largely owing to a lack of co-payment to increase the amount of running costs at the Minister of this co-payment; and Health and prevalent insecurity, (d) notes, with concern, that the Government (ii) there are shortages of vaccines across seeks to allow private health funds to the country, and offer insurance for out-of-pocket expenses in excess of $1,000, a measure (iii) public health programs and disease which, if implemented, would inflate control and surveillance have not yet health insurance premiums as well as be been fully re-established; and a real step towards a user-pays system in (c) calls on the Federal Government to Australia where people who can afford seriously address these issues through its co-payments and insurance premiums representations to the UN and the United will be treated when they are sick, States of America and by increasing its whereas those individuals and families contribution to the rebuilding of Iraq on lower incomes will be forced to go through health services for Iraq’s without medical assistance. children. Senator Chris Evans to move on the next Senator McLucas to move on the next day of sitting: day of sitting: That the Health Legislation Amendment That the Senate— (Medicare and Private Health Insurance) Bill (a) condemns the most damaging effects of 2003 be referred to the Select Committee on the Government’s proposed reforms to Medicare for inquiry and report by 9 September Medicare, which will create a user-pays, 2003. two-tiered health system in Australia and Senator Greig to move on the next day of dismantle the universality of Medicare; sitting: (b) acknowledges that the first of the That the Senate— damaging effects of the Government’s reform package is to cause bulk-billing (a) notes that the International Criminal rates to decline further, and that these Court’s Prosecutor commenced office in reforms do nothing to encourage doctors the Hague on 17 June 2003; to bulk bill any Australians other than (b) reaffirms its support for the International pensioners and concession cardholders Criminal Court and the important role but make it clear that the Government that it will play in bringing to justice considers bulk billing to be a privilege those who commit crimes against that accrues only to a subset of humanity; Australians, not an entitlement that all (c) welcomes the adoption by the European Australians have as a result of the Union of a revised Common Position on Medicare charge; the International Criminal Court, (c) notes that the second most damaging obliging member states to cooperate with effect of the Government’s proposed the court; and changes to Medicare is the facilitation (d) urges the Government to decline any and encouragement of higher and higher request from a country seeking to enter co-payments to be charged by medical into an agreement with Australia practitioners, and that a central plank of pursuant to Article 98 of the Rome

CHAMBER 11872 SENATE Wednesday, 18 June 2003

Statute, which would grant its citizens Senator Nettle to move on the next day of immunity from prosecution in the sitting: International Criminal Court. That the Senate— Senator Nettle to move on the next day of (a) calls on the Government to: sitting: (i) rule out the establishment of any new That the Senate— United States (US) military bases in (a) notes that 19 June 2003 marks the 58th Australia, birthday of Burmese democratic leader (ii) rule out future use of Australian Daw Aung San Suu Kyi, who is under territory for US military training unlawful detention in Burma; exercises, (b) recalls with horror the massacre on 30 (iii) rule out the transformation of any May 2003, facilitated by the Burmese Australian ports into regular US military regime and resulting in the military ‘transit points’, death of approximately one hundred (iv) inform the Senate of any formal or people and the detention and disappearances of several hundred informal approaches made by the US Government to the Australian others; Government or Department of (c) calls upon the Government to pressure Defence in relation to any further the Burmese military regime to comply deployment of US troops to Australia, with United Nations resolutions to or the establishment of any US implement the results of the 1990 military bases in Australia, and Burmese elections; (v) close the US military spy base at Pine (d) calls upon the Government to ensure that Gap; and any projects, including the proposed 3- (b) condemns the Government’s ill- year humanitarian assistance and training programs, remain suspended considered pursuit of closer military ties with the US, without Parliamentary until the democratic parliament is convened; consultation or debate and despite the threat to Australia’s national interest that (e) recognises the Committee Representing this policy poses. People’s Parliament as the legitimate body to convene a democratic Senator Mark Bishop to move on the Parliament in Burma, according to the next day of sitting: 1990 election result; (1) That the following matters be referred to (f) calls upon the Government to exert the Foreign Affairs, Defence and Trade economic and diplomatic pressure, References Committee for inquiry and including through restrictions on trade report: and investment, a tourism boycott and a (a) the adequacy of current arrangements downgrading of diplomatic relations within the Department of Defence for against Burma until the regime enters the health preparation for the into official dialogue with Daw Aung deployment of the Australian Defence San Suu Kyi; and Forces (ADF) overseas; (g) calls upon the Burmese regime to (b) the adequacy of record keeping of immediately release Daw Aung San Suu individual health and treatment Kyi, U Tin Oo, Min Ko Naing and all episodes of those deployed, and political prisoners and restore access to those records by the democracy. individual;

CHAMBER Wednesday, 18 June 2003 SENATE 11873

(c) the adequacy of information provided (b) an assessment of the operation of the to individual ADF members, current dual model of internal review, pre-deployment, of the likely health Veterans’ Review Board/Administrative risks and anticipated remedial activity Appeals Tribunal, its advantages, costs required; and disadvantages; (d) the adequacy of current arrangements (c) an assessment of the appropriate model for the administration of preventive for a system of administrative review vaccinations, standards applied to within a new, single compensation drug selection, quality control, record scheme for the Australian Defence keeping and the regard given to Forces and veterans of the future, accepted international and national including compensation claim regulation and practice; preparation, evidentiary requirements, (e) the engagement in this process of the facilitation of information provision and Department of Veterans’ Affairs and the onus of proof; the Repatriation Medical Authority (d) identification of policy and legislative for the purposes of administering and change required to amend the system at assessing compensation claims; and lowest cost and maximum effectiveness; (f) the adequacy of the current research and effort focussing on outstanding issues (e) an assessment of the adequacy of non- of contention from the ex-service means tested legal aid for veterans, the community with respect to health appropriateness of the current merits test outcomes from past deployments, and and its administration, and options for the means by which it might be more effective assistance to veteran and improved. ex-service claimants by ex-service (2) That, in undertaking the inquiry, the organisations and the legal industry. committee consider recommendations COMMITTEES for an improved system within the Selection of Bills Committee Defence and Veterans’ administrations which will give greater assurance to the Report individual that their health risks are Senator McGAURAN (Victoria) (3.28 minimised, and fully recorded for the p.m.)—At the request of Senator Ferris, I purposes of future compensation where present the sixth report for 2003 of the justified. Standing Committee for the Selection of Senator Mark Bishop to move on the Bills. next day of sitting: Ordered that the report be printed. That the following matter be referred to the Senator McGAURAN—I seek leave to Finance and Public Administration References Committee for inquiry and report: have the report incorporated in Hansard. The options and preferences for a revised Leave granted. system of administrative review within the The report read as follows— area of veteran and military compensation SELECTION OF BILLS COMMITTEE and income support, including: REPORT NO. 6 OF 2003 (a) an examination and assessment of the causes for such extensive demand for 1. The committee met on Tuesday, 17 June administrative review of decisions on 2003. compensation claims in the veterans and 2. The committee resolved to recommend— military compensation jurisdictions; That—

CHAMBER 11874 SENATE Wednesday, 18 June 2003

(a) the provisions of the Taxation Laws • Health Legislation Amendment Bill Amendment Bill (No. 5) 2003 be (No. 1) 2003 referred immediately to the Economics • Industrial Chemicals (Notification Legislation Committee for inquiry and and Assessment) Amendment Bill report on 11 August 2003 (see appendix 2003 1 for statement of reasons for referral); • National Handgun Buyback Bill (b) the provisions of the Trade Practices 2003 Amendment (Personal Injuries and Death) Bill 2003 be referred • National Health Amendment immediately to the Economics (Private Health Insurance Levies) Legislation Committee for inquiry and Bill 2003 report on 20 August 2003 (see appendix Private Health Insurance (ACAC Review Levy) 2 for statement of reasons for referral); Bill 2003 (c) the provisions of the Export Market Private Health Insurance (Collapsed Organization Development Grants Amendment Bill Levy) Bill 2003 2003 be referred immediately to the Private Health Insurance (Council Administration Foreign Affairs, Defence and Trade Levy) Bill 2003 Legislation Committee for inquiry and report on 24 June 2003 (see appendix 3 Private Health Insurance (Reinsurance Trust Fund for statement of reasons for referral); Levy) Bill 2003 and • Occupational Health and Safety (d) the following bills not be referred to (Commonwealth Employment) committees: Amendment (Employee Involvement and Compliance) Bill • Acts Interpretation Amendment 2002 (Court Procedures) Bill 2003 • Ozone Protection and Synthetic • Australian Film Commission Greenhouse Gas Legislation Amendment Bill 2003 Amendment Bill 2003 • Australian Prudential Regulation Ozone Protection (Licence Fees—Imports) Authority Amendment Bill 2003 Amendment Bill 2003 • Criminal Code Amendment Ozone Protection (Licence Fees—Manufacture) (Terrorist Organisations) Bill 2003 Amendment Bill 2003 • Defence Amendment • Product Stewardship (Oil) (Parliamentary approval for Legislation Amendment Bill (No. Australian involvement in overseas 1) 2003 conflicts) Bill 2003 • Sexuality Anti-Vilification Bill • Defence Legislation Amendment 2003 Bill 2003 • Superannuation (Government Co- • Excise Tariff Amendment Bill (No. contribution for Low Income 1) 2003 Earners) Bill 2003 Customs Tariff Amendment Bill (No. 2) 2003 Superannuation (Government Co-contribution for • Health and Ageing Legislation Low Income Earners) (Consequential Amend- Amendment Bill 2003 ments) Bill 2003 • Health Care (Appropriation) • Superannuation (Surcharge Rate Amendment Bill 2003 Reduction) Amendment Bill 2003 • Taxation Laws Amendment Bill (No. 6) 2003

CHAMBER Wednesday, 18 June 2003 SENATE 11875

• Taxation Laws Amendment Reasons for referral/principal issues for con- (Personal Income Tax Reduction) sideration Bill 2003 Thin capitalisation: • Trade Practices Legislation appropriateness of the test being the criteria Amendment Bill 2003 of an internationally recognised rating • Workplace Relations Amendment agency (Award Simplification) Bill 2002 revaluation of assets • Workplace Relations Amendment accounting standards (Choice in Award Coverage) Bill $2 million threshold for requirement to 2002 maintain records about an Australian • Workplace Relations Amendment permanent establishment (Compliance with Court and Possible submissions or evidence from: Tribunal Orders) Bill 2003. Treasury, ATO, interested financial The committee recommends accordingly. institutions, professional accounting bodies 3. The committee deferred consideration of the Committee to which bill is referred: following bills to the next meeting: Economics Legislation Committee Bills deferred from meeting of 17 June 2003 Possible hearing date: • Customs Amendment Bill (No. 1) Possible reporting date(s): 11 August 2003 2003 (signed) Customs Tariff Amendment Bill (No. 1) 2003 Sue Mackay • Customs Legislation Amendment Bill (No. 2) 2002 Whip/Selection of Bills Committee Member • Health Legislation Amendment ————— (Medicare and Private Health Appendix 2 Insurance) Bill 2003 Proposal to refer a bill to a committee • Migration Legislation Amendment Name of bill(s): (Sponsorship Measures) Bill 2003 Trade Practices Amendment (Personal • National Transport Commission Injuries and Death) Bill 2003 Bill 2003 Reasons for referral/principal issues for con- National Transport Commission (Consequential sideration Amendments and Transitional Provisions) Bill need to examine the implications of the 2003 proposal for consumers, especially the • New Business Tax System interaction of the bill with the other reforms (Taxation of Financial in response to the insurance crisis. Arrangements) Bill (No. 1) 2003. explore the case for amendments which limit (Jeannie Ferris) rather than remove the right to sue for Chair personal injury damages under Part V Div 1 of the Trade Practices Act. 18 June 2003 Possible submissions or evidence from: Appendix 1 ACCC, Australian Consumers’ Association, Proposal to refer a bill to a committee Consumer Laws Centre Victoria, Australian Name of bill(s): Plaintiff Lawyers’ Association, Insurance Taxation Laws Amendment Bill (No. 5) 2003 Council of Australia, Treasury

CHAMBER 11876 SENATE Wednesday, 18 June 2003

Committee to which bill is referred: for today, relating to forestry practices in Economics Legislation Committee Tasmania, postponed till 19 June 2003. Possible hearing date: 13 August 2003 COMMITTEES Possible reporting date(s): 20 August 2003 Rural and Regional Affairs and Transport (signed) Legislation Committee Sue Mackay Extension of Time Whip/Selection of Bills Committee Member Senator McGAURAN (Victoria) (3.30 ————— p.m.)—by leave—At the request of the Chair of the Rural and Regional Affairs and Trans- Appendix 3 port Legislation Committee, Senator Heffer- Proposal to refer a bill to a committee nan, I move: Name of bill(s): That the time for the presentation of the report Export Market Development Grants of the Rural and Regional Affairs and Transport Amendment Bill 2003 Legislation Committee on the provisions of the Reasons for referral/principal issues for con- Civil Aviation Amendment Bill 2003 be extended sideration to 24 June 2003. impact of proposed changes on exporters Question agreed to. impact of proposed changes on EMDG Joint Standing Committee on Foreign Af- scheme fairs, Defence and Trade Possible submissions or evidence from: Meeting Austrade, Export Consultants Associations Senator FERGUSON (South Australia) Committee to which bill is referred: (3.31 p.m.)—I move: Foreign Affairs, Defence and Trade That the Foreign Affairs Sub-Committee of the Legislation Committee Joint Standing Committee on Foreign Affairs, Possible hearing date: Defence and Trade be authorised to hold a public meeting during the sitting of the Senate on Mon- Possible reporting date(s): 24 June 2003 day, 23 June 2003, from 5.30 pm to 6.30 pm, to (signed) take evidence for the committee’s inquiry into Sue Mackay Australia’s relationship with Indonesia. Whip/Selection of Bills Committee Member Question agreed to. NOTICES DEPARTMENTAL AND AGENCY Postponement CONTRACTS Items of business were postponed as fol- Senator FORSHAW (New South Wales) lows: (3.31 p.m.)—by leave—The notice of mo- General business notice of motion no. 1, tion that was originally put forward in my under committee reports and government name as Chair of the Finance and Public responses, standing in the name of the Chair Administration References Committee proof the Standing Committee of Senators’ posed certain changes to the order of the Interests (Senator Denman) for 19 June Senate of 20 June 2001 relating to depart- 2003, proposing amendments to the mental and agency contracts. In particular, resolutions on senators’ interests, postponed one of those proposed changes was to in- till 11 September 2003. clude a paragraph in the order which would General business notice of motion no. 478 have extended the operation of the order for standing in the name of Senator Ridgeway

CHAMBER Wednesday, 18 June 2003 SENATE 11877 publication of contracts to bodies subject to Question agreed to. the Commonwealth Authorities and Compa- TEXTBOOK SUBSIDY BILL 2003 nies Act 1997 and that such change should First Reading take place from 1 January 2004. That proposed change was in line with a recommen- Senator STOTT DESPOJA (South Aus- dation of the report of the Finance and Public tralia) (3.35 p.m.)—I move: Administration References Committee of That the following bill be introduced: A Bill December last year. for an Act to subsidise students’ purchases of educational textbooks when studying at education The Minister for Finance and Administra- institutions, and for related purposes. tion, Senator Minchin, has corresponded with the committee and has raised certain Question agreed to. issues as to the applicability of that proposal Senator STOTT DESPOJA (South Aus- and he indicated that the government was not tralia) (3.35 p.m.)—I move: disposed to agree to it. I might point out that That the bill may proceed without formalities this was a unanimous recommendation. We and be now read a first time. have taken on board—and the committee has Question agreed to. discussed it—the government’s views. Ac- Bill read a first time. cordingly, I have amended the notice of motion for today to delete that particular part of Second Reading the motion, so the order will therefore con- Senator STOTT DESPOJA (South Aus- tinue not to apply to bodies under the Com- tralia) (3.35 p.m.)—I move: monwealth Authorities and Companies Act. That this bill be now read a second time. However, this order is the subject of ongoing I seek leave to have my second reading review and report by the committee and this speech incorporated in Hansard. is a matter that no doubt can be considered Leave granted by the committee in due course. I also understand from the minister that the govern- The speech read as follows— ment’s response to the committee’s report The Textbook Subsidy Bill 2003 aims to extend will be tabled tomorrow. Having made those the Educational Textbook Subsidy Scheme comments, I now move: (ETSS). That the order of the Senate of 20 June 2001 The subsidy scheme is part of the Book Industry relating to departmental and agency contracts be Assistance Package negotiated by the Australian amended as follows: Democrats in 1999 in an attempt to alleviate the impact of the GST on the price of textbooks for (a) paragraph (1), omit “the tenth day of the students and their families. spring and autumn sittings”, substitute “2 calendar months after the last day of I would like to make it clear that while this Pri- the financial and calendar year”; vate Senator’s Bill pertains to textbooks, I believe all books should be exempt from the GST. “A Tax (b) at the end of paragraph (2)(b), add “the on Books is a Tax on Knowledge” is the slogan commencement date of the contract, the all Democrats endorsed in the 1998 campaign. duration of the contract, the relevant reporting period and the twelve-month That we reneged on that promise is a continuing period relating to the contract listings”; source of principle and electoral pain for the and Party. It remains something of which I am ashamed and explains partly my decision to op- (c) paragraph (7), after “first”, insert “and pose the GST deal struck between the Govern- second”. ment and the Democrats.

CHAMBER 11878 SENATE Wednesday, 18 June 2003

The ETSS was appropriated for only four years cheaper to buy in Australia than in the United when the GST was introduced, and is due to lapse States or the United Kingdom.2 after June 30 next year. Other studies have found bestsellers cost 78% Although there was no formal agreement between more in the US and 52% more in the UK, while the Government and the book industry to extend the price differences are even more dramatic for the scheme beyond this date, until this year the first release fiction.3 Department of Education, Science and Training This is an indication of the impact decreased book (DEST) included forward estimates for the sales has had on the Australian book industry. scheme for 2005 and 2006 in the Budget. DEST consulted with a range of industry organi- However, no forward estimates for 2005 and sations about the best way to implement the 2006 were included in this year’s Budget and the ETSS. These organisations included the Austra- Government has since confirmed that it will not lian Publishers Association, the Australian Book- be extending the scheme past June 2004. sellers Association, the Australian Campus Book- The Educational Textbook Subsidy Scheme cur- sellers Association and other individual publish- rently subsidises educational textbooks purchased ers and booksellers. from participating booksellers by 8% of their It was decided that only books included on “pre- GST-inclusive price. scribed textbooks lists or recommended reading In this way, the ETSS assists students by reducing lists at Australian Education institutions” would their costs of studying at educational institutions. be eligible for the subsidy.4 Approximately 70% of the scheme’s allocation The scheme operates thus: students or their par- currently relates to higher education (universities ents are paid the subsidy in the form of an 8% and TAFEs). discount when purchasing textbooks. The book- Importantly, the Educational Textbook Subsidy seller is then able to claim the discounted amount Scheme has maintained access to textbooks for back from DEST (after first registering with the students, and, therefore, access to education and Department). knowledge. According to the Australian Publishers Associa- It buffers the increase to textbook prices as a re- tion, 65% of all claimants lodge their claims over sult of the GST. the Internet. As predicted, book prices rose by almost 10% The scheme has been administered in an efficient after the introduction of the GST. and effective manner by the book industry, with These price increases also affect libraries, which DEST-commissioned post-payment random au- dits revealing only a small number of errors and have started charging GST on inter-library loans. 5 This unfair charge hits out at the poorest in our no deliberately false claims. community. I have had a number of complaints The subsidy is well regarded, having proved on this issue. popular and successful with students and all in- The subsidy also assists the Australian book involved with administering it - including educa- dustry by encouraging the purchase of educational institutions, authors, publishers and book- tional textbooks published in Australia. sellers. The GST hit the Australian book industry hard, as The Textbook Subsidy Bill 2003 is part of a proc- was anticipated. In the year following the intro- ess pressuring the Government to extend the sub- duction of the GST, the number of books sold sidy beyond June 30 next year. decreased by 19% compared to the previous fi- This could be done either through an extension of nancial year.1 the Government’s current agreement with the A comparative pricing survey by the Australian book industry, or through legislation. Competition and Consumer Commission in June If the scheme is not extended, the increased price 2002 found that, on average, bestsellers are of textbooks will become a further barrier to education for many students and their families.

CHAMBER Wednesday, 18 June 2003 SENATE 11879

This Government is infamous for placing unbear- Package, was axed in last year’s Budget. Funding able burdens on kids who want an education. for EPICS was restored by the Government as a This Government discourages older people from result of my discussions, as Leader of the Democ- upgrading their education by putting the same rats, with the Prime Minister. burdens on them. Although the Government declared there would It is abysmal that these barriers are being intro- be no GST on education and, theoretically, ex- duced and supported by politicians who largely empted many educational items from the GST did not pay for their education. (although we know that strictly speaking this is not the case), it is clear that a GST on textbooks is So even the old mantra of “I did it, so can they,” a GST on education. is not applicable in this case. Books are an essential part of obtaining an educa- We know students and their families are already tion. They are considered the very basis for ob- struggling to afford the increasing costs of educa- taining literacy and numeracy skills – an area the tion, and extra costs will further decrease the ac- Government has highlighted as of particular im- cessibility of education, especially for indigenous portance. students, students from low socio-economic background and rural, regional and remote stu- Given the Government’s exclamations and prom- dents. ises in relation to literacy in education, it is ap- palling that the GST has been applied to books. Participation of these groups improved from the early 1990s until 1996 but have subsequently The revenue which would be forgone as a result fallen back to about 1991 levels following the of zero-taxing books is almost insignificant when introduction of differential HECS, declining stu- compared with the benefits that Australians can dent income support levels, lower parental in- derive from improved literacy and learning. come means test, and, the reduction of Abstudy. That is why it is imperative, that at a very mini- It is bad enough that the Government allows these mum, educational textbooks are exempt from this barriers to waste so much potential. tax on knowledge. We cannot let them introduce further barriers that Putting a rotten tax on textbooks was a rotten idea will place education out of reach of even more in the first place. Australians. Every barrier you put between people and further Australians simply cannot afford to pay more for education is a disaster for this country’s present their education. More than 10,000 Australians and future. signed a petition opposing the GST on books in I hope the continuation of the ETSS will go some 2000. Students and their families are crying out, way to alleviating the burdens that already exist. but will the Government act on their concerns? I commend the Bill to the Parliament. The Australian book industry will also suffer if 1 Australian Bureau of Statistics 1363.0 the ETSS is not extended. 2 Australian Publishers Association Booksellers will incur significant costs in disman- 3 Australian Publishers Association, September tling ETSS systems. In addition, they will have to 2002 advise students and parents, who are now fully 4 aware of the existence of the ETSS, that the sub- Australian Publishers Association sidy is no longer available. 5 Australian Publishers Association And this is not the first time the book industry has I seek leave to continue my remarks later. been adversely affected by a Government change Leave granted; debate adjourned. of heart in relation to the GST. The Enhanced Printing Industries Competitive- ness Scheme (EPICS), designed to offset the effects of the GST on the book printing industry and another part of the Book Industry Assistance

CHAMBER 11880 SENATE Wednesday, 18 June 2003

COMMITTEES Greig, B. Lees, M.H. Foreign Affairs, Defence and Trade Refer- Murray, A.J.M. Nettle, K. Ridgeway, A.D. Stott Despoja, N. ences Committee NOES Reference Barnett, G. Bishop, T.M. Senator BROWN (Tasmania) (3.35 Boswell, R.L.D. Buckland, G. p.m.)—I move: Campbell, I.G. Carr, K.J. That the following matters be referred to the Chapman, H.G.P. Colbeck, R. Foreign Affairs, Defence and Trade References Collins, J.M.A. Cook, P.F.S. Committee for inquiry and report by 18 August Crossin, P.M. Denman, K.J. 2003: Ellison, C.M. Faulkner, J.P. Ferguson, A.B. Heffernan, W. The role, operation and effectiveness of Hogg, J.J. Humphries, G. Australia’s security and intelligence Johnston, D. Kirk, L. agencies in the lead-up to the Iraq war, Knowles, S.C. Ludwig, J.W. including: Lundy, K.A. Mackay, S.M. (a) the discrepancies, if any, between claims Marshall, G. Mason, B.J. made by the Australian Government and McGauran, J.J.J. * McLucas, J.E. its agencies concerning Iraq and Iraq’s Moore, C. O’Brien, K.W.K. weapons of mass destruction (WMD) Patterson, K.C. Ray, R.F. program and information supplied by Scullion, N.G. Tchen, T. Australia’s intelligence agencies; Watson, J.O.W. Webber, R. Wong, P. (b) the discrepancies, if any, between * denotes teller information gathered by Australian intelligence agencies concerning Iraq Question negatived. and Iraq’s WMDs before the war and the ASIO, ASIS and DSD Committee actuality of the WMD program Extension of time discovered after the conflict; Senator FAULKNER (New South (c) the discrepancies, if any, between Australia and other nations, including Wales—Leader of the Opposition in the Sen- the United States of America, in ate) (3.43 p.m.)—by leave—I move the mo- intelligence received regarding Iraq and tion as amended: Iraq’s WMD program; and That, pursuant to section 29 of the Intelligence (d) any other matters relating to claims Services Act 2001, the following matter be concerning Iraq or Iraq’s weapons of referred to the Parliamentary Joint Committee on mass destruction. ASIO, ASIS and DSD for inquiry and report by 2 December 2003: Question put. (a) the nature and accuracy of intelligence The Senate divided. [3.40 p.m.] information received by Australia’s (The Deputy President—Senator J.J. intelligence services in relation to: Hogg) (i) the existence of, Ayes………… 10 (ii) the capacity and willingness to use, Noes………… 37 and Majority……… 27 (iii) the immediacy of the threat posed by, weapons of mass destruction (WMD); AYES (b) the nature, accuracy and independence Allison, L.F. * Bartlett, A.J.J. of the assessments made by Australia’s Brown, B.J. Cherry, J.C.

CHAMBER Wednesday, 18 June 2003 SENATE 11881

intelligence agencies of subparagraphs Senator IAN CAMPBELL (Western (a)(i), (a)(ii) and (a)(iii) above; Australia—Manager of Government Busi- (c) whether the Commonwealth Govern- ness in the Senate) (3.46 p.m.)—by leave—It ment as a whole presented accurate and begs the question of whether the Greens complete information to Parliament and voted for that motion. We are now getting the Australian public on subparagraphs down to one or two votes to see whether that (a)(i), (a)(ii) and (a)(iii) above during, or motion got up. Obviously in these cases we since, the military action in Iraq; and need to find out if the will of the chamber (d) whether Australia’s pre-conflict assess- has been expressed. ments of Iraq’s WMD capability were as accurate and comprehensive as should be The DEPUTY PRESIDENT—The re- expected of information relied on in sponse that I would offer to Senator Ian decisions regarding the participation of Campbell is that the question has been put the Australian Defence Forces in military and passed. conflict. Legal and Constitutional References Question agreed to. Committee Senator MURRAY (Western Australia) Meeting (3.45 p.m.)—I want to record the fact that I Senator MACKAY (Tasmania) (3.47 voted against the motion. I do not believe p.m.)—On behalf of Senator Bolkus, I move: there should be a secret inquiry; I think there That the Legal and Constitutional References should be a public inquiry. Committee be authorised to hold a private Senator Ian Campbell—Mr Deputy meeting otherwise than in accordance with President, I rise on a point of order. Was standing order 33(1) during the sitting of the Senator Murray the only member of the Aus- Senate on Wednesday, 18 June 2003, from 5.50 tralian Democrats who voted against that pm. motion or did all the Australian Democrats Question agreed to. vote against it? If they did all vote against it, Scrutiny of Bills Committee then the motion would have been lost and the Report vote would need to be recommitted. Senator CROSSIN (Northern Territory) The DEPUTY PRESIDENT—It is not a (3.48 p.m.)—I present the fifth report of point of order. Senator Murray stood and 2003 of the Senate Standing Committee for asked for his vote to be recorded. I did not the Scrutiny of Bills. I also lay on the table take what Senator Murray said to indicate the Scrutiny of Bills Alert Digest No. 6 of anything other than a position of Senator 2003, dated 18 June 2003. Murray. Normally a party position is indicated, Senator Ian Campbell. It is in your Ordered that the report be printed. court now. Senator CROSSIN—I move: Senator Murray—If I may assist: it was That the Senate take note of the report. a personal vote, not a party vote. Tabling this report is my first duty in the Senator CHERRY (Queensland) (3.45 Senate as chair of the Scrutiny of Bills p.m.)—I want to note that I did not vote in Committee. I would like to start my tabling favour of that motion either, although the statement by thanking the outgoing chair and vote of the rest of the Democrat party room farewelling our secretary. Senator McLucas, was certainly in favour of that motion. who assumed the chair’s role after the retirement of former senator Barney Cooney

CHAMBER 11882 SENATE Wednesday, 18 June 2003 last year, remains a member of the commit- ernment are presented to the Senate in Alert tee but has stepped down as chair. On behalf Digests and reports. of the committee, I would like to thank Sena- The committee has also been pursuing tor McLucas for her work as chair over the improved transparency through correspon- past year. dence with the government on the standard On behalf of the committee—and, indeed, of explanatory memoranda and on the confu- possibly on behalf of the Senate—I would sion occasioned by practices in the naming also like to thank David Creed for his work and numbering of bills. These issues have as secretary to the committee. David Creed been canvassed in tabling statements by my retired earlier this month after 15 years with predecessor, Senator McLucas, most recently the Department of the Senate. Although on 14 May 2003. The committee will further David became secretary to the Scrutiny of consider these issues and has arranged a Bills Committee only last year, he brought to briefing on them from the First Parliamen- our work years of valuable experience in tary Counsel. scrutiny roles, having been the secretary of Senators would also be aware that the the Regulations and Ordinances Committee committee often comments adversely on the for 10 years. During his time with the Sen- quality of explanatory material. I would ate, David made a significant, if not out- therefore like to finish by highlighting one of standing, contribution to the development of the committee’s more positive comments on the scrutiny committees of many parlia- the explanatory memorandum for the Cus- ments. He attended many national confer- toms Legislation Amendment Bill (No. 2) ences and prepared a number of significant 2003, which we found to be ‘a model of clar- papers on aspects of the scrutiny of legisla- ity and completeness’. Unusual as it may be tion. He also provided advice to other com- for me to compliment a minister of this gov- mittees interested in following the lead of the ernment, this explanatory memorandum Senate in developing an effective scrutiny does, however, meet the standard that is ex- role, including committees from various state pected by this committee and should be parliaments and the parliaments of the noted. United Kingdom and New Zealand. David Question agreed to. would probably not appreciate any lengthy valedictory statement but I am sure all hon- DOCUMENTS ourable senators join with me in wishing Auditor-General’s Reports David and his family well in his retirement. Report No. 50 of 2002-03 Observers of the work of the Scrutiny of The DEPUTY PRESIDENT—In accor- Bills Committee would be aware of the dance with the provisions of the Auditor- committee’s current interest in improving the General Act 1997, I present the following transparency of the legislative process, both report of the Auditor-General: Report No. 50 to ensure that senators are fully informed as of 2002-03—Information Support Services - to the implications of bills prior to debating Managing People for Business Outcomes, them and to improve the quality of the legis- Year Two: Benchmarking Study. lation passed by this parliament. The committee contributes to this aim by recording against its terms of reference its concerns on individual bills. These concerns and the committee’s correspondence with the gov-

CHAMBER Wednesday, 18 June 2003 SENATE 11883

ACTS INTERPRETATION of Commonwealth offences in State and Territory AMENDMENT (COURT courts. PROCEDURES) BILL 2003 As some members may be aware, the Common- EXPORT MARKET DEVELOPMENT wealth does not have its own criminal courts – GRANTS AMENDMENT BILL 2003 our offences are prosecuted in State and Territory courts. AUSTRALIAN PRUDENTIAL The efficient administration of Commonwealth REGULATION AUTHORITY justice requires seamless coordination with State AMENDMENT BILL 2003 and Territory legislation. Recently New South First Reading Wales has moved to amend its criminal procedures, moving from the old system of a summons Bills received from the House of Repre- laid upon an information or complaint to a system sentatives. of court attendance notices. It is always possible Senator IAN CAMPBELL (Western that more States and Territories may make similar Australia—Parliamentary Secretary to the changes in the future. Treasurer) (3.54 p.m.)—I indicate to the This Bill inserts a new provision into the Com- Senate that those bills which have just been monwealth Acts Interpretation Act 1901, to make announced are being introduced together. it clear that a reference in Commonwealth legisla- After debate on the motion for the second tion to a summons, information or complaint, or reading has been adjourned, I will be moving other current forms of initiating proceedings, includes all relevant methods of initiating pro- a motion to have the bills listed separately on ceedings. This will include the new court atten- the Notice Paper. I move: dance notices in New South Wales and provide That these bills may proceed without formali- for any similar amendments to State or Territory ties, may be taken together and be now read a procedures in the future. first time. This Bill does not change the way that Common- Question agreed to. wealth laws interact with State and Territory pro- Bills read a first time. cedures – it merely ensures that the status quo is maintained. Second Reading As the New South Wales changes to criminal Senator IAN CAMPBELL (Western procedure commence on 7 July 2003, I ask that Australia—Parliamentary Secretary to the this Parliament pass this Bill promptly to ensure Treasurer) (3.55 p.m.)—I move: that there is no gap in the effective and efficient That these bills be now read a second time. administration of Commonwealth justice in New South Wales. I seek leave to have the second reading speeches incorporated in Hansard. ————— EXPORT MARKET DEVELOPMENT Leave granted. GRANTS AMENDMENT BILL 2003 The speeches read as follows— The Export Market Development Grants ACTS INTERPRETATION AMENDMENT Amendment Bill 2003 will refocus the EMDG (COURT PROCEDURES) BILL 2003 scheme to further assist small and medium busi- I am pleased to introduce the Acts Interpretation ness, and in doing so better support the govern- Amendment (Court Procedures) Bill 2003 for ment’s goal of doubling the number of exporters consideration by the Parliament. by 2006. The purpose of the Acts Interpretation Amend- Each year this government invests $150.4 million ment (Court Procedures) Bill 2003 is to ensure in the EMDG scheme to support eligible export the continued effective and efficient prosecution promotion activities of small and medium Austra-

CHAMBER 11884 SENATE Wednesday, 18 June 2003 lian businesses by partially reimbursing their eli- • Broadening the range of eligible export gible expenses. promotion expenditure. The EMDG scheme has been regularly reviewed The government has also taken steps to improve and is consistently hailed as a benchmark of ef- access of small businesses in rural and regional fectiveness in terms of government industry sup- Australia to the scheme by ensuring that related port programs. In 1999/2000, following extensive domestic costs are included in the EMDG Over- econometric analysis of the scheme, Professor seas Visits Allowance. Bewley of the University of NSW found that an The changes proposed in the Export Market De- additional $12 in exports was generated as a re- velopment Grants Amendment Bill 2003 will sult of every grant dollar spent. further simplify the scheme and put greater focus Last year around 3,100 small and medium export- on assisting small and emerging exporters – that ers received grants through the scheme. These is, those businesses that most need assistance. businesses generated approximately $5 billion in The proposed amendments include: export revenue and employed over 60,000 Austra- • lians. Reducing the income ceiling for applicants from $50 million to $30 million; Support was provided to small and medium en- • terprises across virtually all industries and in all Reducing the maximum grant amount parts of Australia. Importantly, 21% of grant re- from $200,000 to $150,000; cipients were located in rural and regional Austra- • Reducing the maximum number of grants lia. from 8 to 7; Demand for grants has grown considerably in • Removing the $25 million export earnings recent years, demonstrating the continued success ceiling; and of the scheme. Austrade informs me that it has • Removing the provision for additional received over 4,000 applications for the 2001/02 grants for entering new markets. grant year, an increase of 23% by number on the previous year. Over 1,500 businesses applied for The proposed changes are to take effect for a grant for the first time. EMDG claims from the 2003/04 EMDG grant year onwards. In other words to applications re- Small business is one of the fastest growing sec- ceived and grants paid from 1 July 2004 onwards. tors of the export community and is the key to doubling the number of Australian exporters. The total budget for the scheme will not be af- Austrade estimates that 97% of all Australian fected by the changes. Funding will remain at exporting firms are SMEs – these are the busi- $150.4 million – a decision that reflects both the nesses that need to be nurtured. government’s firm commitment to the scheme and its strong fiscal stance at a time when there Accordingly, since 1996 we have made a number are significant demands on the Federal Budget. of changes to make the EMDG scheme much The proposed amendments will, in fact, ensure more attractive and accessible to small business. that a greater number of claimants from the These include: scheme’s target group (small business) receive a • Reducing the minimum expenditure grant. required to access the scheme from The EMDG scheme is but one important element $30,000 to $15,000; of our government’s comprehensive strategy to • Doubling the grant rate available to the double the number of Australian exporters by tourism industry; 2006. Last year for instance, we committed $21.5 • Improving access for family businesses; million to expanding the TradeStart program over • 4 years. TradeStart is designed to assist small Reducing red tape and documentation businesses break into potentially lucrative over- requirements; seas markets through an extensive network of • Introducing a $5,000 minimum grant; and specialist export advisers in 51 locations across metropolitan, rural and regional Australia. It also

CHAMBER Wednesday, 18 June 2003 SENATE 11885 puts the international market expertise of Aus- While the Commissioner concluded that APRA trade’s global network across 58 countries at the did not contribute to or cause the collapse of HIH, fingertips of small business. he did find that it should have been more inquir- And the early signs are encouraging. In 2000/01, ing in its approach. In particular, he found that the base year for the doubling target, the Austra- APRA “missed many warning signs, was slow to lian Bureau of Statistics estimated there were act and made misjudgements about some vital approximately 25,000 exporting companies in matters”. Australia. Last financial year that number in- This is a significant finding, and one that requires creased by almost 6,500 firms or over 25%. the full attention of APRA moving forward. But there is still an enormous amount of work to The Commissioner made a number of important be done. In considering this bill it is important to recommendations that describe a preferred model keep in mind that the EMDG scheme is all about of governance for APRA given its important role. assisting small businesses to become sustainable APRA’s governance arrangements will be further exporters. strengthened and refined to better suit a body with One such business is Queensland company Aleis APRA’s important responsibilities. International. Since humble beginnings in 1987, In summary, the effect of the measures contained Aleis now provides its electronic livestock identi- in this bill is to achieve four related objectives fication products to most major properties, that flow from the recommendations of Justice saleyards and abattoirs across Australia. In the Owen. last few years the company has looked at expand- The first objective is to replace APRA’s current ing into overseas markets and recently won a part-time board with a full-time executive group tender (the biggest of its type) to provide elec- comprising at least three and no more than five tronic identification equipment for the entire cat- members. tle herd in Botswana. In 2002 Aleis received its first grant under the EMDG scheme enabling it to The members would collectively exercise APRA’s defray some of the costs associated with market- responsibilities, while preserving its status as an ing its products around the globe. independent statutory authority. Aleis and thousands of small companies like it are This approach allows APRA to retain its name the unsung heroes of Australia’s continued eco- and identity, and to move forward and continue nomic success. This bill will ensure that EMDG its process of evolution, with minimum disrup- funding is focused on cultivating small and tion. emerging exporters such as Aleis, and in turn The second objective is to implement a number of contribute to the long-term strength of the Austra- changes that will better represent APRA’s place lian economy. within the financial system architecture. ————— This will better define how it relates to other bod- AUSTRALIAN PRUDENTIAL REGULATION ies while ensuring it remains independent of un- AUTHORITY AMENDMENT BILL 2003 due political influence in conducting its operations. This bill will effect changes to the leadership and governance of Australia’s prudential regulator, in At the same time, it permits more flexible com- accordance with recommendations made by the munication between the Government and APRA, Royal Commissioner the Hon. Justice Neville particularly on priorities, required policy changes Owen in his report of 4 April 2003. Justice Owen and any other matters that might impact on finan- had inquired into the collapse of the HIH Insur- cial system stability. ance Group. The third objective, given the proposed executive The Treasurer released Justice Owen’s report on status of the new APRA members, is to apply an 16 April 2003. enhanced disclosure and conflict of interest framework.

CHAMBER 11886 SENATE Wednesday, 18 June 2003

This will enhance the integrity of the office of an quarters of the wheat industry. Most argu- APRA member and apply similar requirements as ments got put on the table and there was a exist for other executive regulatory bodies. fair bit of conspiracy around that it was The fourth, and final, objective, is to clarify the somehow going to be an attack on the single operation of provisions that allow APRA’s en- desk. Early in its deliberations, the commit- gagement with other agencies. tee decided that any debate around the single APRA’s greatest asset is its core of committed desk was well outside the terms of reference and professional staff. for this committee. The inquiry was held in The changes introduced by this bill are designed Canberra and Perth during March 2003 and to establish a dedicated leadership team to guide included examination of the role of the APRA through the challenges that lie ahead of it. Wheat Export Authority and the proposed These changes should have minimum impact on conduct of the 2004 review of AWBI’s per- the dedicated people who comprise the heart of formance as the current single desk exporter APRA while positioning the organisation for the of Australian wheat. future now that the HIH Royal Commission has concluded. The committee heard submissions from all I commend the bill to the Senate. participants in the industry as well as from the Wheat Export Authority, AWBI and Debate (on motion by Senator Mackay) AWB on the role of the Wheat Export Au- adjourned. thority from its foundation in 1999 to the Ordered that the bills be listed on the No- present. The submissions included some ba- tice Paper as separate orders of the day. sic and well-founded criticisms of the per- WHEAT MARKETING AMENDMENT formance of the Wheat Export Authority, the BILL 2002 effectiveness of its role and doubts as to its Report of Rural and Regional Affairs and ability to properly and fearlessly monitor the Transport Legislation Committee activities of the AWBI—the international single desk. As Senator Ferris has just re- Senator HEFFERNAN (New South minded me, there were criticisms that it was Wales (3.56 p.m.)—As the chair of the Rural in some ways a toothless tiger. and Regional Affairs and Transport Legisla- tion Committee, I present the report of the Among the doubts raised was that of the committee on the provisions of the Wheat ability of the Wheat Export Authority to ob- Marketing Amendment Bill 2002, together tain all information regarding the operations with the Hansard record of proceedings and of AWBI and fully report on them to growers documents presented to the committee. in a timely and transparent manner. Also among the doubts raised was whether the Ordered that the report be printed. Wheat Export Authority retains the confi- Senator HEFFERNAN—I seek leave to dence of growers. Some people said abso- move a motion in relation to the report. lutely that they had grave reservations about Leave granted. their confidence. Another doubt raised was Senator HEFFERNAN—I move: whether the Wheat Export Authority will be in a position to credibly and effectively con- That the Senate take note of the report. duct the 2004 review of the AWBI’s per- It would be fair to say that this committee formance as the single desk exporter of Aus- hearing, which was really about the Wheat tralian wheat. It is very important that who- Export Authority’s levy, has generated a fair ever conducts that inquiry has to first of all bit of interest right across Australia from all

CHAMBER Wednesday, 18 June 2003 SENATE 11887 gain the confidence of the industry to give between AWB Ltd and AWBI with respect to that report credibility when it is produced. a very large range of noncontestable services This committee has been a wake-up call provided by AWB Ltd to AWBI. We were for Australia’s wheat growers. The wheat given evidence that there was no disaggrega- industry is constructed in such a way that 20 tion of those services, which made it almost per cent of our growers grow 80 per cent of impossible—and I guess it is impossible— our wheat and 80 per cent of our growers for the Wheat Export Authority to come to grow 20 per cent of our wheat. Most blokes terms with the individual supply of those that are in the 80 per cent that grow the 20 services, and we questioned whether they are per cent are too busy at home feeding sheep, contestable and whether they are actually putting in the crop, milking the cows and getting good value for money. A particular feeding the dogs to be worried with the detail concern in this regard is the funding of the of what happens at the AWB. following services provided by AWB Ltd to AWBI: transport, freight handling, financial It would be fair to say further that the services, currency arrangements, market AWB is a public company that has obliga- analysis and related commercial advice. tions to its shareholders, which it correctly and unsurprisingly carries out. It also has In addition, the committee is concerned constitutionally an obligation to the growers. that growers better understand the arrange- One of the points of contention throughout ments for the operation of the Australian these hearings has been whether that was a Wheat Board’s Geneva desk and its role, conflict of interest that not only was per- funding, administrative and cost oversight ceived to be there but was in fact there. It arrangements. The committee has—and I would be fair to say that there were questions emphasise this—a long commitment to the raised, especially in Perth, about whether statutory position of a single-desk exporter there were any peepholes in the china walls of Australian wheat. There has been wide- between the two companies, given that all spread support for that. Some presentations but two of the directors of both companies have been made in understandable self- are the same directors. So there were some interest against that position, but there is questions, and Australia’s wheat growers widespread support. It is fair to say that the should be well comforted by the fact that this average wheat grower wants a fair season, committee has put some pretty fair discus- wants to grow a good crop, wants to have a sion on the table on their behalf. clear harvest, wants to safely store that wheat and wants to get the maximum price for that There were also questions raised about wheat with the least cost. The great danger whether the Wheat Export Authority, in for Australia’s wheat growers is that, if there processing applications for export of Austra- is no continuing scrutiny—and it is fair to lian wheat in bags and containers, needed to say that scrutiny is required—then, like some be there. Obviously, there is a great need for other institutions, such as the NRMA, who quality control. Given there were only forgot that they were there just to fix broken- 150,000 or 160,000 tonnes exported last year down cars, the Australian Wheat Board could in bags and containers, the question raised easily lose sight of what it is really there for. was whether there is a need for that to be I emphasise that this report does, however, subject to a permit system. Another question set out some steps which can be taken to raised was whether the Wheat Export Au- provide for a better and more transparent thority should contest the service agreement

CHAMBER 11888 SENATE Wednesday, 18 June 2003 oversight and eventual review of the single in which we believe that problem should be desk arrangements. addressed. Senator O’BRIEN (Tasmania) (4.03 The independent inquiry recommended by p.m.)—This inquiry is one of the most im- Labor senators would greatly assist policy portant activities undertaken by the Rural makers to develop the most appropriate pol- and Regional Affairs and Transport Legisla- icy framework for the future. It is most im- tion Committee during my time in this place. portant that grower interests are not crowded I believe the report findings will have a pro- out of the debate by the big corporate play- found impact on the public debate about the ers. Labor senators proposed that the review management and oversight of Australia’s consider the following matters: the perform- single desk for wheat exports. It is fair to say ance of AWB (International) Ltd as holder of that all members of the committee, certainly the wheat export monopoly; the impact of those that participated in its hearings, agreed export marketing arrangements on Austra- that the existing regulatory structure is mani- lia’s domestic wheat market, including re- festly inadequate. Those familiar with the lated competition issues; the benefits and activities of the Rural and Regional Affairs detriments for the Australian wheat industry and Transport Legislation Committee will and the Australian community in maintaining know that its members endeavour to operate the current statutory export monopoly be- in a nonpartisan manner. This inquiry is no yond 2004; desired changes, if any, to export exception. monopoly arrangements; and options for We focused on the task of producing rec- future monitoring of those arrangements. ommendations that best protect grower and It is essential that this review be compre- community interests. The committee has hensive and independent in character if it is reached a general consensus on the key is- to be acceptable to all stakeholders. Mr Truss sues associated with the bill, but members believes a comprehensive review of wheat have different views about how those issues marketing arrangements is not necessary should be addressed. Much of the evidence until 2010. In the context of the current in- presented to the committee was motivated by dustry environment, 2010 is light years self-interest—something of little surprise to away. The recently announced recommenda- any fair-minded observer. It was the commit- tion of the Grainco board that shareholders tee’s responsibility to consider that evidence accept a merger proposal from GrainCorp and form a balanced view on behalf of grow- reflects the continuing evolution—some ers and the wider community. The diverse would say revolution—in the wider grains views presented to the committee also re- industry. flected to some extent the broader commu- The committee was told that the perform- nity debate about the single desk. That is ance of the Wheat Export Authority in moni- why Labor senators have recommended a toring the single desk marketing arrange- timely, independent and wide-ranging in- ments has been inadequate. That fact has quiry into the current management of the been clear to me for some time based on the single desk and future management arrange- authority’s performance at Senate estimates ments. In this respect, we share the view of hearings. A particular point of interest for the the government majority that the Wheat Ex- committee was the power of the Wheat Ex- port Authority lacks the capacity to under- port Authority to compel AWBI to provide it take this task, though we differ in the manner with advice. It is clear that this power—and,

CHAMBER Wednesday, 18 June 2003 SENATE 11889 accordingly, the powers to monitor AWBI— turns to growers, then we need to know it. is very limited. The Wheat Export Authority We need to know and we need to buttress our told Mr Truss in a letter dated 14 March defence against countries seeking to force 2000 that it did not have the power to do its change in the guise of free trade. But if there job. Mr Truss’s department was made aware is a better way of doing business—a way of of this problem in January or early February building better returns for growers, for re- 2000, and the minister was advised accord- gional communities and for the Australian ingly. If the minister had acted on the advice economy—we need to know about it so we provided to him and amended the Wheat can act on it. Finally, I thank all members of Marketing Act, the problem could have been the committee for their contribution to this fixed years ago. This is yet another example inquiry and I extend my gratitude to the of the minister’s failure to act to protect the committee secretariat for another fine effort. interests of Australian primary producers. Senator CHERRY (Queensland) (4.10 It is also worth noting that the Wheat Ex- p.m.)—Like Senator O’Brien, I wish to note port Authority has regularly reported to Mr the work that all members of the Senate Ru- Truss on AWB International’s performance, ral and Regional Affairs and Transport but growers have received just two general— Legislation Committee have done on the and, I might say, generally worthless— inquiry into the provisions of the Wheat reports. It is clear that growers’ interests have Marketing Amendment Bill 2002 and, again, come a distant second in the industry ar- the extraordinary work of the secretariat. It is rangements established by the Howard gov- significant that, whilst there are three sets of ernment. The current arrangements for non- recommendations in this report, they are all bulk exports require the exporter to apply to fairly close in their tenor and their sugges- the Wheat Export Authority for a permit and tions. It became clear as we went through the the authority to consult AWB International. evidence in this inquiry that something is Labor senators believe that this arrangement significantly wrong in the Wheat Export Au- should be abolished and that a simplified thority and the single desk marketing ar- system of permits should operate through the rangements and that there is a need for those Department of Agriculture, Fisheries and matters to be fixed sooner rather than later if Forestry. The permit system for bulk wheat we are to maximise benefits to wheat grow- exports should also be transferred from the ers. I should acknowledge that this inquiry Wheat Export Authority to the department started as a reference from Senator O’Brien and existing controls on the export of bulk to the committee and, since then, we have wheat maintained subject to the outcome of taken evidence from a whole range of wheat the proposed independent review. grower groups around the country as well as In my view, the single desk arrangements bulk handlers, AWB, AWBI and a range of should be maintained if an actual benefit other interested groups. from those arrangements is enjoyed by What was quite clear was that the near growers and the community. This benefit unanimous view that this committee received must be proven, not just stated. The ar- in 1998 when it first looked at the Wheat rangements should not be left in place until Marketing Act in support of the single desk 2010 because some people derive a warm for wheat marketing is no longer as unani- inner glow from their existence. If the cur- mous as it was then and that there is in fact a rent export single desk arrangements still clear need to actually look at the benefits of provide the best means of maximising re- the single desk once and for all—as Senator

CHAMBER 11890 SENATE Wednesday, 18 June 2003

O’Brien said—to work out whether the bene- this authority some two to three years to get fits are there or not. This was originally pen- the framework in place. It now has a robust cilled in for 2010 under the arrangements framework and it would be a pity to throw all which the government put in place in 1998, that work out at this stage. Having said that, but I agree with Senator O’Brien that that we do have to test whether the current mar- needs to be brought forward. In doing that, keting arrangements are in the interests of we have to recognise that the changes in the growers or not. From that point of view, the wheat industry since 1998 have been quite Democrats would support funding the WEA substantial and very significant. AWB has for at least another year. In the meantime, let become quite an aggressive private company. us complete the 2004 review. This has been shown, for example, in the The other items raised in both the majority number of objections raised by its subsidiary report and the Labor senators’ report deal AWBI to containerised and bagged export with the issue of the secrecy provisions and applications. These have risen from objecting the confidentiality agreement between the to around about 26 per cent of applications in Wheat Export Authority and AWBI. The the first year of the WEA arrangements to 67 Democrats strongly support the view that the per cent last year. That shows a much more Wheat Marketing Act will need to be aggressive corporate attitude from AWBI, amended to ensure that the Wheat Export and also from AWB in the consolidation of Authority has sufficient powers of discovery its investments. to obtain information and report that infor- The Democrats are of the view that in mation to growers without having to deal principle the single desk should be supported with confidentiality agreements. That is a unless and until it is shown that it is not matter that the Senate needs to deal with as a benefiting growers. That should be part of matter of some urgency, because clearly it is the 2004 review, and to that extent I agree a fundamental flaw when an industry regula- with what Senator O’Brien said. What is also tor does not have the powers to do its job, clear is that the 2004 review will need to be a and that is what has become quite clear out bigger exercise than the government origi- of this inquiry. nally envisaged. This is because the industry The other item I did want to discuss very has changed much faster than we thought it briefly at this stage is the recommendations would and there is now a need to look at all to deal with the export permits for container- the different changes to industry arrange- ised and bagged wheat exports. The Democ- ments and to work out what is the best way rats are certainly aware that there has been of maximising grower returns in this evidence to the committee that the role of changed environment. From that point of AWBI in the approvals process for container- view, the Democrats would support a broader ised and bagged wheat is probably inappro- review in 2004 conducted by an independent priate and an anachronism. But at this time I panel. am not prepared to sign off on a recommen- We are of the view that the WEA is start- dation to end that and to change the approv- ing to do some very useful work. I am not as als process, because I am not yet convinced critical of the authority as some other mem- there is sufficient evidence on the table to bers of the committee. I recognise that, in argue that it is currently detrimental to grow- starting a new authority and a new regulator, ers. I am quite happy for that to be part of the it does take time to get your performance 2004 review. We have an open mind on it. monitoring frameworks in place. It has taken But at this time I think it would be somewhat

CHAMBER Wednesday, 18 June 2003 SENATE 11891 premature to make judgments on that based will not go through it, except to make the on incomplete information. following points. Firstly, I believe this rec- With those very short comments, I com- ommendation possibly undermines the integ- mend this report to the Senate. It is an excel- rity of the single desk. Secondly, this rec- lent report, reflecting some very hard think- ommendation certainly will give succour to ing by all committee members. It is unusual those who object to the single desk. There is that a report is tabled which has such criti- an element within the industry—and there cisms and also some constructive sugges- always is; there are always barbarians at the tions on improvements to wheat marketing gate—that does not support the single desk arrangements not just from the Democrat or and does not support orderly marketing. Labor senators but also from the government Speaking as a National Party member, indeed senators. I think the government would be that is why this party was formed—to sup- very foolhardy to ignore this report and the port orderly marketing. So we are only too very important conclusions the committee aware and always alert to the barbarians at has made. I would hope that we actually de- the gate. liver a better wheat marketing arrangement Given that a review is to be undertaken in acting in the interests of all growers. regard to the single desk in 2004, I am sure Senator McGAURAN (Victoria) (4.16 that this recommendation will give succour p.m.)—I also want to add a small contribu- to those who wish to undermine the integrity tion on this fine report of the Senate Rural of the single desk. The government members and Regional Affairs and Transport Legisla- of this committee have all stated privately, tion Committee into the provisions of the publicly and in this report that they are sup- Wheat Marketing Amendment Bill 2002. I porters of the single desk. I simply point out support the bulk of the recommendations, that, for those who are not, this recommenda- because they relate to the transparency and tion indeed gives them succour. They will accountability of the wheat marketing ar- see it as a crack in the dam wall and a brick rangements. It is in the interests of the grow- from the citadel. ers, the industry as a whole and the economy Senator Heffernan—Mr Acting Deputy as a whole that, for this major export product President, I raise a point of order. I hope the of Australia, transparency and accountability senator is not making an inference against is forever present in the industry. But there is any members of the committee, given that he one recommendation I want to place on the did not actually attend any of the hearings. record that I would question, if not dissent The ACTING DEPUTY PRESIDENT on, and that is the fourth recommendation. I (Senator Lightfoot)—I did not construe an will read it in full: inference there, Senator Heffernan. There is The Wheat Marketing Act should be amended to no point of order. I am sure that the senator is authorize the WEA to approve the export of too careful to imply things of that nature. bagged and containerized wheat without reference to AWBI subject to enforcement of appro- Senator McGAURAN—That was a priate quality accreditation. vexatious point of order there by my good friend and colleague, which I will take up I refer the chamber to two submissions to the with him in the corridors of this parliament. committee, the first from the Grains Council Privately, I can simply answer his objection. of Australia and the second from the Austra- Senator Heffernan has stated quite clearly to lian Wheat Board, for the very extensive ob- me privately and in this report that he sup- jection they have to that recommendation. I

CHAMBER 11892 SENATE Wednesday, 18 June 2003 ports the integrity of the single desk. I take (b) what protective measures were put in that to be the truth. I simply say that, for oth- place; ers within the industry, a small minority, this (c) why these protective measures failed; recommendation would give them great suc- (d) whether any rescue is possible; cour. Anyway, I was only going to make a (e) how to prevent similar episodes; few points. I refer senators to the submis- (f) any related matters; and sions by the Grains Council and the AWB for a more extensive answer and objection to (g) the role of the Commonwealth in all these issues. this recommendation. The intention of this motion is to set up an My third point is that there is already an inquiry into the— existing permit system that works perfectly well, which ironically is not even properly Senator Ferris—Silly boy. It won’t save utilised, is not taken to its limit. The existing you, Julian. permit system works well and to the benefit The ACTING DEPUTY PRESIDENT of all grain growers, so it is not as if this (Senator Lightfoot)—Order! Please pro- niche market is being denied. In fact, there is ceed, Senator Brown. already a process to meet this niche market. Senator BROWN—I am not sure how Fourthly, I simply say that what it really will the senator’s interjection that ‘It won’t save do is introduce cherry picking. Given that the you, Julian’ refers to me. pool is an average price, cherry picking will, The ACTING DEPUTY PRESIDENT— in all, lower the average price of the pool, It had no reference to you at all, Senator which is detrimental to all grain growers. Of Brown. Please proceed. course, if you do not support the collective system, then basically you do not mind creat- Senator BROWN—Thank you. I was ing new niche markets, dismantling the sin- distracted. Let me say at the outset that I am gle desk or cherry picking in the market. But aware that the government and the Labor I simply say that this is possibly the effect Party will oppose this motion and therefore, that this recommendation will have. unless I can convince them in the coming few minutes to change their view, the inquiry Question agreed to. that I propose will not proceed. I think it COMMITTEES should and it must. Environment, Communications, Informa- On 12 April this year a regeneration burn tion Technology and the Arts References by Forestry Tasmania took place which burnt Committee to death the biggest known flowering plant Reference on the face of the planet. Forestry Tasmania Senator BROWN (Tasmania) (4.22 calls the tree El Grande—that is, ‘the big p.m.)—I move: one’—and it is in the lee of Wyldes Craig in That the following matter be referred to the central Tasmania near Blue Creek on a ridge Environment, Communications, Information top overlooking the Derwent River. I suspect Technology and the Arts References Committee I am the only person in this parliament who for inquiry and report by 20 August 2003: has seen this tree. So let me give a descrip- The burning of Australia’s biggest tree, in tion of it. It is a massive, living entity. The Tasmania, having regard to: tree is 80 metres high. It is some 20 metres in (a) its discovery; circumference and six metres in diameter. If you can imagine, Mr Acting Deputy Presi-

CHAMBER Wednesday, 18 June 2003 SENATE 11893 dent, it is higher than the Sydney Opera been logged had it been left to Forestry Tas- House and is as high as the top of the flag- mania. Indeed, downhill there are stumps 15 pole on this parliamentary building, meas- metres in circumference—as big as an aver- ured not from the top of the hill on top of age garage—that are the remnants of giant Parliament House but from the baseline of trees that have been taken off to the wood- the Senate chamber in which we are now chip mill. But these are gone. They have sitting. It is way higher than the 15-storey been taken, cut down, destroyed. Wrest Point casino tower in Hobart and it has Forestry Tasmania said, ‘Now that our at- been growing on the ridge for hundreds and tention has been brought to this tree, we will hundreds of years. I have measured the tree’s not only protect it as a giant but we will also circumference at about 22 metres. Forestry place it on the top of the list that we draw up Tasmania says it is 19.5 metres, but let us not under the heading “Our 10 most massive be concerned about the difference. That is giants”.’ That list, which is on Forestry Tas- measured at chest height. Its base would fill mania’s web site, points out that the tree had an average living room or bedroom. From an estimated volume of 439 cubic metres, that base the sides rise almost perpendicu- measured last year. It was therefore cele- larly. It is an absolutely massive structure. brated by Forestry Tasmania and given pro- In the middle of last year the tree was tection status. However, it was determined brought to the notice of the Wilderness Soci- that, Gunns having logged the forest, 12 ety and Forestry Tasmania by Mr Wally April this year was the day to put a regenera- Herrmann, who was working of his own action burn through the forest on the downside cord. It was rapidly recognised to be the big- slope. Can you imagine it, Mr Acting Deputy gest tree in Australia by a long way. In fact, President? Here is this tree sitting on top of it is the largest hardwood tree on the face of the ridge. You look to the north-west of the the planet. So far as a search of records can slope. It is a very steep hill. It goes down discover, it is the largest tree anywhere in the and, for 100 hectares or more, everything has world outside North America. The tree is full been logged and is flat. With some of the of wildlife. It is an old tree, so it has dropped stems, the volume has been taken out to the its branches. It has nesting sites. It is full of woodchip mills, but hundreds of tonnes more habitat for possums, gliders, nesting birds, of is left on the ground, along with the stumps. course insects and bat species. Along comes Forestry Tasmania—and I It was on top of a ridge overlooking a gi- am not sure what it did on this day; it lights ant forest. How do I know it is a giant forest? fires by hand but it also has a habit of drop- By the time I arrived there, the downhill for- ping it from planes—with hundreds of in- est had been logged by Forestry Tasmania cendiaries. These are like napalm. They are and Gunns Ltd, the latter being the biggest dropped from the plane onto that logged export woodchipper in the world. The tree is coupe of 100 hectares or more and when quite amazing because, though it sits on top they hit the ground they explode into flame. of the ridge and therefore comes out of the The idea here is to create a firestorm. The forest above the trees in its surroundings, and idea of that firestorm is to kill everything on there are other very big trees near to it, as it the block, to not leave any seed, any root, has grown in the forest it has been able to any cotyledon—that is a little sprig that withstand extraordinary storms and tem- might come up from the rainforest species pests—in fact, the biggest and worst storms which are mixed there with the eucalyptus— of centuries. The tree, I submit, would have

CHAMBER 11894 SENATE Wednesday, 18 June 2003 and to create total death of the natural eco- What I did not know, but what Forestry system in that region of forest. Tasmania knew and what Gunns knew, was Atop the ridge stood ‘El Grande’, our na- that these giant eucalypts—Eucalyptus reg- tion’s grandest tree. Did this lead to afore- nans—do not regenerate. They do not sprout thought from Forestry Tasmania, from the anew after bushfires like other species of Tasmanian government, from the woodchip eucalypts. They are not built to withstand giant Gunns? We are told it did. They knew such a firestorm. The Wilderness Society got it was there and they knew it was at risk of an independent expert, a tree doctor, a scien- burning in this firestorm. But what happened tist in tree pathology, to go and look at it and creates an impression that, in some way or he has declared that the tree is dead. The La- other, though they knew the protection of bor Party wants to side-shuffle this inquiry that tree was a paramount objective in the and for us to instead bring in a meek, totally public interest, that all lapsed. At best, it was insufficient motion which says: ‘Let’s get a mind-block that took over everybody on somebody to look at the tree. Let’s get the that site and back in headquarters in Hobart, Tasmanian government to look at the tree.’ including the minister—the Hon. Paul Len- The Labor Party and the government know non, the Deputy Premier of Tasmania, who that Forestry Tasmania has already done that knew about the tree as well and therefore and has said—much like the Prime Minister was the public representative in charge—and says on weapons of mass destruction which Premier Bacon. They firebombed that hill- have not been found, but with regard to the side on that hot day with a northerly or life in this tree which has not been found— north-westerly breeze blowing across it. ‘Let’s wait. Be patient. We’ll put it off till some other time so that the sting is lost, and What happened then was that the whole maybe it will spring to life further down the hillside exploded into flame and this fire- line.’ I do not know—maybe it will—but I storm swept up the hill and burnt the nation’s do know this: that tree, as a living wonder, is greatest tree as if it were sitting on top of a lost to this nation through the unforgivable bonfire. I went out there some days later and negligence of all involved in its care and was astonished by the sight. There were still maintenance. That is a national tragedy. This burning remnants of the coupe on the floor, was our nation’s iconic tree. but at El Grande itself great branches half a metre thick had been ripped from this tree. Senator O’Brien—I’ve never heard of it. These branches begin about 50 metres up in Senator BROWN—Senator Kerry the tree. Can you imagine that? That is half a O’Brien makes throw-off comments on the football field in height up the tree before you side, but I treat this matter seriously. This get to the first branches. These large tree had been saved by the intervention of a branches had been ripped from the side of citizen. It was brought to notice and put un- the tree by the power of this Dresden-like der protection, and then it was burnt by the firestorm and were left as debris scattered Tasmanian government and its authorities around the tree on the ground. The trunk of under a system which is supposed to protect the tree—and remember that trees live such things. What I have asked for here is no through their living inner skin—was seared less than if a national monument of human right around, up to 40 or 60 metres high, by importance had been destroyed by an act of the ferocity of the storm. When you got to vandalism like this unforgivable failure of the branches high up in the trees, not one duty by the authorities involved. We would green leaf was left. Every leaf was dead. have had to have a national inquiry to dis-

CHAMBER Wednesday, 18 June 2003 SENATE 11895 cover what happened and to ensure that those and half of that is earmarked for logging. As who were at fault were brought to book and I have just described, the biggest trees of the to ensure that whatever could be would be lot are vulnerable to destruction by this in- done to stop a repeat. dustry. We are involved with repeat offenders: We should be having an inquiry into this. these are people who destroy giant forests This is a national disgrace that has occurred and who are, as we meet today, logging in in the mountains of central Tasmania. This the Styx Valley of the Giants, south of this was the nation’s biggest tree and now it has big tree. They are logging in the Tarkine been destroyed. This is a failure by people rainforest in the north-west of Tasmania, the who knew what they were doing and it de- nation’s largest temperate rainforest. They serves a Senate inquiry. It will be enor- intend to log into the heart of that in search mously remiss if we do not get that inquiry. of what is called red myrtle. They are log- If the Labor Party fails to support this it will ging into the north-east highlands of Tasma- have moved far from that ethos of 20 years nia, into the magnificent forests there on the ago when it went to the aid of the Franklin, Tasman Peninsula. There is an intention by against its Labor counterparts in Tasmania. I Gunns to log the north-east peninsula of Re- have spoken with the Labor Party about this. cherche Bay and southern Tasmania, where I have said that it has to get back its gump- the walls of the French garden from 1793 tion on the environment. It has to be able to remain. move in on the environment, even where Senator O’Brien interjecting— sectional Labor Party interests support, curi- ously enough as they do in Tasmania—they Senator BROWN—Senator O’Brien says do not support jobs, because they are lost all that there is no intention to log the north-east the time in this industry—the biggest corpo- peninsula. That is just not right. Let me say rate vandal in the forests of the Southern this: the Labor Party had a very difficult job Hemisphere: that is, Gunns Pty Ltd. dealing with its Tasmanian counterparts on the issue of the Franklin Dam. But, due to There is an unholy alliance between the the power of people of the day like Neville Labor Party and this corporation in Tasma- Wran and Bob Hawke, they did that. In the nia, and in between is squeezed Forestry nation’s interests they said, ‘We cannot sup- Tasmania. Out of that unholy alliance came port a dam in south-west Tasmania which the destruction of this big tree. This nation would destroy this magnificent wilderness.’ should never have allowed that to happen. Thank goodness they did, because the conse- This federal government has an obligation quence has been enormously positive for the not to allow that to happen. This Prime Min- nation, whether you look at it environmen- ister’s signature is on the regional forest tally, employment-wise or economically. agreement based on the forest policy that came before it and which was not supposed Here again is a challenge to the Labor to allow this to happen. It has happened and Party: it must intervene in this disgraceful, it is absolutely critical that we have an in- destructive industry which is so cavalier quiry into it. That is why I recommend this about the nation’s heritage: its forest heri- motion to the Senate and urge so strongly tage, its wildlife heritage and its wilderness that Labor not join the government in turning heritage in Tasmania. Only 13 per cent re- it down but be open enough and honest mains of the Eucalyptus regnans area that enough to allow the inquiry to take place to existed when the British arrived in Tasmania, find out what happened to allow the destruc-

CHAMBER 11896 SENATE Wednesday, 18 June 2003 tion of such an important piece of the na- (c) calls on the Tasmanian Government to tion’s heritage. determine whether any rescue is possible; and Senator O’BRIEN (Tasmania) (4.43 p.m.)—I would have to say that the opposi- (d) calls on the Federal Government to work with the Tasmanian Government to tion views with some concern the recent in- determine how the protective measures advertent burning of Australia’s biggest tree, failed on this occasion and to ensure that the tree that Senator Brown dubs with the similar episodes do not occur in the title ‘El Grande’. future”. Senator Brown—No, Forestry Tasmania I would have thought that the latter point dubbed it that. would be the most appropriate step that Senator O’BRIEN—Thank you for that. could be taken. No-one can say that we can Senator Brown—You don’t know that; reverse the event or go back and make it not I’m just helping you. happen. It has happened, and the opposition thinks it is regrettable. We need to find out if Senator O’BRIEN—Thank you for your there is a possibility of rescuing the tree, and help, Senator Brown. I am grateful for your we need to learn from the experience, as it help on some occasions. The proposition were, to make sure that, if there are deficien- before us today is that we should have a Sen- cies in the protective measures, they can be ate inquiry into this event. I was wondering, improved upon. while I was listening to Senator Brown’s comments, why that would be. It seemed that A Senate inquiry could do a whole range Senator Brown had all of the facts. He was of things. Equally, there are opportunities able to tell us the dates and the logging which Senator Brown and others—including circumstances. He even knows enough to tell those in other parliaments, for example Sena- us that every single log off the coupe went tor Brown’s colleagues in the Tasmanian for woodchip. I am almost certain I could bet parliament—can pursue with regards to the you, Mr Acting Deputy President, that that is performance of state and federal govern- not the case, and certainly in a forest where ments and state and federal authorities. In- there is a tree of the stature of ‘El Grande’ deed, recently the Senate had an estimates there would be many others that would be of process and the Tasmanian parliament had an a quality sufficient for other, higher purposes estimates process. I was interested to see than woodchipping. I will be interested to what the arrangements were in each of the inquire—and I will—as to whether this was a two parliaments in relation to estimates, and site where every stick went to woodchip. I the Tasmanian parliament has an open esti- very much doubt that to be the case. mates process. I noted that there was an exchange between Mr Lennon—referred to by The opposition is keen to do the appropri- Senator Brown in his contribution—and a ate thing here, and so I move: Mr McKim, one of the Tasmanian Greens in Omit all words after “That”, substitute “in the Tasmanian parliament. I was surprised by regard to the recent inadvertent burning of some of the things I read. Having heard Australia’s biggest tree in Tasmania, the Senator Brown rail in this place against, for Senate—: example, the logging of old-growth forests, I (a) notes that Forestry Tasmania had noted the following exchange, where Mr measures in place to protect the tree; Lennon said to Mr McKim: (b) expresses its concern that the tree has been burnt;

CHAMBER Wednesday, 18 June 2003 SENATE 11897

But you support the logging of old-growth for- on Senator Brown’s statement of the facts, ests. that the facts are well known—that is, the Mr McKim, who is, I stress, a member of the escape of a regeneration burn which may Tasmanian Greens, said: have been unwise in the first place. If we We support selective logging of some areas of were going to have a Senate inquiry to dis- old-growth forest, that is correct. cover the facts that Senator Brown says are I did not know that that was the position of there—he seems to know them already and the Greens, but it is an interesting position. It they seem to be on the public record—one is interesting to look at the Senate estimates would have thought that there could be better process. The process is revealing, as is the uses of the time and resources of the Senate process in the Tasmanian parliament. Mr in pursuing inquiries which would be impor- McKim spoke in the legislative assembly tant to the Australian people about various chamber in Tasmania about the policy, which aspects of this government’s policy. That, I has apparently been of some standing within suspect, would be much more profitable in the Tasmanian Greens, which supports selec- developing a public policy position for the tive logging of old-growth forests. It is im- Australian Greens, the Labor Party and the portant that that be noted because all these government. We do not support this proposed facts should be on the record. reference to an inquiry of the burning of what is described as Australia’s biggest tree. In Senator Brown’s contribution, he has laid out matters which seem in some respects There was, however, one aspect of Senator to reflect the factual circumstances of the Brown’s presentation that somewhat per- burning of the tree. But the opposition does plexed me. On the one hand, Senator Brown not believe that the fact that it occurred war- said that Eucalyptus regnans did not regen- rants a Senate inquiry. In terms of the devel- erate after fire—they do not sprout anew opment of public policy, the opposition be- after fire—and that an expert had found that lieves that the proposition it advances is the the tree was dead. On the other hand, in an- desirable course of action. It calls on both other part of Senator Brown’s contribution governments to undertake certain tasks with he cast doubt on that by saying that he did a view to arriving at a position where, insofar not know whether or not the tree would live. as it is possible, repeat events in other coupes There is only one test that will establish and other forests can be avoided. I referred to whether that is the fact. Those who have seen the estimates process because, in the Tasma- bushfire affected areas know that many trees nian parliament and the federal parliament do sprout anew and some do not. It is that respectively, members of the Tasmanian leg- response which will give us the answer— islative assembly and senators have the op- nothing more, nothing less. Within a season portunity to inquire as to what has happened or two we will know the fate of this tree. No and what was discovered. There are also am- Senate inquiry is going to reveal that; nature ple opportunities for pursuing this course by itself will reveal it. If that is the purported putting questions on notice. purpose of the inquiry, I would suggest it is pointless. The opposition would agree in many cases to a proposition for an inquiry where it was Having said that and not wanting to take warranted, but in this case we do not believe too much more of the Senate’s time, I ask it is warranted. It is not as if the inquiry will that the Senate endorse the amendment that I reverse the events that took place. It appears, have moved to Senator Brown’s motion, which is in our view a more sensible course

CHAMBER 11898 SENATE Wednesday, 18 June 2003 of action in the circumstances. I look for- The level of logging of native forests in ward to the opportunity on other occasions to Tasmania is clearly threatening the natural talk about the deep red myrtle issue or the and cultural heritage values of Tasmania and issue of the archaeological site at Recherche is contributing quite clearly to the increase in Bay in southern Tasmania when those issues Australia’s greenhouse gas emissions. The are more germane to the debate. They are not Democrats condemn Forestry Tasmania and on this occasion, but we have become accus- the Tasmanian Forest Practices Board for tomed to Senator Brown introducing a vari- their regulation of forestry operations and ety of matters in his contributions. He takes management of Tasmania’s native forests. In every opportunity to pursue the issues that particular, we are concerned about Forestry are dear to him, but in this case the pursuit is Tasmania’s conduct of management activities perhaps not well directed. and the Tasmanian Forest Practices Board’s Senator CHERRY (Queensland) (4.54 failure to ensure that a robust forestry prac- p.m.)—The Democrats wish to place on the tices code is effectively implemented. Hav- record our deep regret and our concern over ing said that, I also wish to note that the De- the burning of El Grande in the Tasmanian mocrats supported very strongly Senator forest. It is a tragedy for Australia that this Murphy’s initiative for the Senate inquiry particular event occurred, it is a tragedy that into plantation forestry practices in Tasmania this occurred as a result of breaching of con- that is currently being conducted—a very tainment lines in a Forestry Tasmania regen- extensive inquiry—by the Senate Standing eration burn exercise and it is a tragedy for Committee on Rural and Regional Affairs Australia that the practices of Forestry Tas- and Transport, chaired by Senator Ridgeway. mania are still not satisfactory to the extent I understand it is having another couple of that we can be assured as a nation that native days of hearings in Tasmania shortly. forests will be protected in Tasmania, let Having put all that on the record, I wish to alone that their plantation forests will be op- note that the Democrats will not be support- erated effectively. ing this particular motion, because we be- I place this on the record because it is very lieve it is appropriate that the Senate express important. In fact, our forestry spokesperson, our concern, which we will do by putting out Senator Ridgeway, gave notice of a motion a notice of motion, and because we believe it yesterday to place clearly on the record the is appropriate that we complete and make Democrats’ view that the practices of For- our findings on the current inquiry into For- estry Tasmania in respect of native forests estry Tasmania’s plantation forestry prac- are substandard, inappropriate and worthy of tices. I would also note, as chair of the Sen- condemnation. That motion is on the Notice ate Environment, Communications, Informa- Paper, and hopefully we will deal with that tion Technology and the Arts References in the Senate tomorrow. It is worth noting Committee, that we have an incredibly full that over 20,000 hectares of native forest are agenda at the moment—in fact our private logged in Tasmania each year and that Tas- meeting tomorrow will be considering two mania now has the second highest rate of new, very significant inquiries which will land clearing in Australia, second only to my certainly occupy us for the rest of the year. It state of Queensland—for which the Beattie simply would not have been possible to Labor government also stands condemned. complete this inquiry by the date that Senator Brown has set, and if he had rung me I would have told him that.

CHAMBER Wednesday, 18 June 2003 SENATE 11899

It is disappointing that we are in a position Senator MURPHY (Tasmania) (4.59 where we will have to vote against this par- p.m.)—Having had a long interest in forestry ticular inquiry motion, but I do wish to note matters, it is appropriate that I make a few quite clearly that the Democrats have put our comments in respect of what Senator Brown views of these activities very strongly on the is proposing by way of his motion to make a Notice Paper. We would urge the Tasmanian reference to the Senate Environment, Com- parliament to engage in proper accountability munications, Information Technology and oversight of Forestry Tasmania, whether it is the Arts References Committee about this through the estimates process or through the matter. It is a very important matter and an- Greens in that parliament initiating an ap- other demonstration of the problems that are propriate inquiry. We do not think that at this associated with poor management prac- time it is an appropriate matter for the Senate tices—practices that are often not suited to environment references committee to deal the type of forest being harvested. with. Having said that, we look forward to If you have a commercial forestry opera- completing the plantation forestry report and tion, you need to take an approach whereby seeing if there are further matters we need to you manage it in a way that maximises a look at after that. whole range of things. Environmental pro- I wish to make it quite clear that the De- tection and protection of forest species and mocrats are not satisfied that Forestry Tas- other flora and fauna is very important. Un- mania did all in its power to protect El fortunately in Tassie—but not just in Tasma- Grande from the regeneration burning exer- nia—practices that have been, and still are, cises that have occurred in Tasmania. This is employed by some forest management agen- a national tragedy for which Forestry Tasma- cies are clearly not up to task of achieving nia stands condemned. We will not be sup- what are stated objectives in this country. We porting the Labor Party’s amendment to this would like people to believe that we employ motion because I do not think we can note world’s best practice in forest management. that Forestry Tasmania had measures in place That clearly is not the situation, and the to protect the tree when it did not protect the chickens are coming home to roost on that tree. That is very important, and from that issue. As Senator Cherry pointed out, the point of view we cannot support the amend- plantations inquiry will at some point in time ment moved by Senator O’Brien—but we be able to provide this parliament with evi- will not be supporting Senator Brown’s mo- dence that would suggest very much that that tion either. is the case. Senator EGGLESTON (Western Austra- With regard to what Senator Brown is lia) (4.58 p.m.)—I speak as the chair of the proposing in respect of an inquiry about this Senate Environment, Communications, In- specific matter at this time, we have that formation Technology and the Arts Legisla- other inquiry which has to look at manage- tion Committee. The government joins with ment practices that are employed to harvest Senator Brown in expressing great concern both public and private native forests. Whilst that this tree was burnt. It is certainly an en- it might not cover specific matters relating to vironmental tragedy that more care was not this tree, it will therefore deal with some is- taken to protect this tree. Nevertheless, the sues relevant to the harvesting and manage- government does not support an inquiry into ment practices that are applied within the this event but will support the ALP’s pro- state. posed amendment to the motion.

CHAMBER 11900 SENATE Wednesday, 18 June 2003

Insofar as what Senator O’Brien, on be- made some comment about this but, frankly, half of the Labor Party, has proposed by way the Commonwealth department has a respon- of amendment, I have a tendency to agree sibility under the Environment Protection with Senator Cherry that, where it is noted in and Biodiversity Conservation Act. paragraph (a) that Forestry Tasmania ‘had I suggest that we ought to at least take measures in place to protect the tree’, it some steps towards conducting an investiga- might be more to the point to say that they tion. I suggest to Senator Brown that maybe may have endeavoured to have measures in prior to the proposal for any Senate inquiry place to protect the tree. I would move an we at least call on the Commonwealth and amendment—if not an amendment to what state departments of the environment to con- Senator O’Brien has proposed—to at least duct an investigation, which they should be have something done, something investi- able to do. They have the expertise—they gated by the two relevant departments. Both can employ the expertise to do it—and they the Commonwealth Department of the Envi- should be tasked with that responsibility and ronment and Heritage and the state depart- report back to the parliament. ment of the environment ought to be required The ACTING DEPUTY PRESIDENT to conduct an investigation on the measures (Senator Hutchins)—Senator Murphy, in and why the measures failed to protect the relation to your proposed amendment, you tree and on whether or not a rescue is possi- can either move it in substitution for para- ble—whether or not something can be done graph (d) or add a new paragraph (e). to assist what is a very old tree to at least continue to live—and how that might be Senator MURPHY—I cannot do that funded. unless Senator O’Brien changes his paragraph (a), because I do not agree with it. I would like to propose that by way of That is agreeing to something that I am ask- amendment to either Senator Brown’s mo- ing to be investigated. tion or Senator O’Brien’s proposed amendment. I would move that the Senate call on Senator Cherry—Senator Ridgeway has the Commonwealth and the Tasmanian gov- given notice of his intention to move a mo- ernment, through their departments of the tion, No. 478, to deal with this matter, which environment, to conduct an investigation on is being dealt with in the Senate tomorrow. It the measures—that is, the fire protection might be appropriate that we incorporate this measures—that were in place for the tree and into the motion at that point in time. why they failed, whether rescue is possible Senator MURPHY—I am assuming that and how that might be funded. I do that be- the Democrats are going to proceed with that cause I think it is important. tomorrow. I am happy for it to be dealt with If we were to actually do this, it would be at some point in time, because I think it is a test for both the Commonwealth and the important. The context of the investigation state departments of the environment to see that needs to be conducted is important. As I whether they are up to the task of protecting have said, given that this debate was taking environmental arrangements that take in place at this point in time, I looked to at least things like the protection of this big tree and see some outcome for what is a very serious other flora and fauna, because that is impor- matter. If that can be done tomorrow, I am tant; they have a responsibility. I do not re- happy to do it tomorrow. But certainly I call reading anything from the state depart- think that something needs to be done. ment of the environment. They may have

CHAMBER Wednesday, 18 June 2003 SENATE 11901

The ACTING DEPUTY PRESIDENT— I have to be careful what I say here, be- Thank you, Senator Murphy. That can be cause I feel so strongly about this. This place done tomorrow with the Democrat proposal. sometimes is devoid of spirit and heart. Senator BROWN (Tasmania) (5.07 There is much more attention given by par- p.m.)—There are some times when you can liamentarians to assassinating each other’s get dispirited enough with this place to feel characters, trying to catch people out over like you might as well pack it in and go. The foibles and sensationalising the minutiae. proceedings that we have heard in the last But when it comes to matters as important little while would make me think in that di- and nationally significant as this, Labor rection. The opposition does not give a damn brings in an insincere, concocted set of about what is happening in the forests of words which actually go some way towards Tasmania, because it is its policy. The endorsing Forestry Tasmania’s behaviour at Democrats had such a noble history of this tree site, and the rest of the Senate that is standing for the environment, and Senator supposed to be in opposition falls into line Cherry says that it is ‘disappointing’ that with that and the government says yes. I am they will have to vote against this inquiry. thoroughly disgusted. This behaviour is to- Like the Labor Party, the Democrats express tally intolerable. Senators should hang their their concern at this national tragedy. Senator heads in shame. The Greens alone are doing Murphy says that he will vote against it as the right thing here. well and, of course, the government will. I am aware that the environment does not Here we have what speakers have said is a count in the agenda of the majority of this national tragedy, but the ducking and weav- parliament. I am aware that there is a cava- ing, insincerity and cynicism of the contribu- lier attitude to it. I am aware that when it tions make me sick. What other national icon comes to global warming nothing is being could be vandalised like this at the hands of done—there will be a bit of shadow-boxing officials and not immediately have this here and there, but leave that to the next gen- chamber in uproar with a demand for an in- eration. I am aware that when it comes to quiry? Would the daubing of Uluru not lead salinity the Prime Minister says, ‘We’ll put to that? Would the looting of the Opera $100 million in there,’ or ‘We’ll do some- House not lead to that? On the logic I have thing about it,’ and then does not spend the just heard from the three or four previous money, and we will get another commission speakers, if you are holding an inquiry into up and we will even have inquiries into that the arts and the Opera House happens to be but basically the matter is not tackled. I am in some way or another vandalised in the aware that we are threatened, and this is on meantime, you would not go to another in- the government’s own advice, with the loss quiry into the Opera House because you are of one-third of our bird species in the coming doing something in that realm in general! decades—not centuries but decades—and That is what is being said by the Democrats that there are mammals on the verge of ex- and by the Labor Party here: ‘There’s an in- tinction and being forced in that direction in quiry into plantation forestry, so why should a whole sweep. Australia is the worst per- they have another inquiry into the burning of forming of the developed nations in the the world’s biggest flowering tree, here in world in past extinctions and impending Australia?’ It defies belief. mass extinctions. Who is debating the issue? Who cares?

CHAMBER 11902 SENATE Wednesday, 18 June 2003

Along we come today to consider this de- Senator O’Brien, the defender of Mr Ba- struction of a living giant of global signifi- con and Mr Lennon in this place, makes the cance and the Senate, except for the Greens, snide imputation that Senator Brown knows say, ‘We don’t even want an inquiry into everything about it, so why should we have that.’ I will tell you why: because there are an inquiry. There is a haughty attitude of, big commercial interests being defended; ‘Let’s just palm it off and not take it seri- because Gunns is a big corporation with big ously,’ by the Labor spokesperson represent- outreach, and the Labor Party is within the ing the Hon. Simon Crean in this place. And tentacles of that outreach. And on its board there is no doubt that he is instructed, be- sits former Liberal Premier Robin Gray, he cause I made sure that the Labor Party knew who called the Franklin a ‘brown, leech- the importance that we Greens attach to this ridden ditch’ just 20 years ago. matter. I made very sure of that. It is not just We are the custodians of this nation’s Senator O’Brien speaking here; it is the Hon. natural heritage and, with the exception of a Simon Crean, Mr Kelvin Thomson, the number that could be counted on one hand— shadow spokesperson for the environment, two Greens in the Senate, no doubt our col- and all their fellow members represented in league in the other place and perhaps some both houses of this place, together with all Independent members in the other place— the Democrats and Senator Murphy. It is to- the rest of this parliament turn their faces tally remiss. from it. They do not have the gumption, they But there is a future, you know, which has do not have the spirit, they do not have the to be envisaged. There is a future in which intellect to be able to take on this issue and humanity needs the beauty, inspiration and say, ‘That demands an inquiry.’ grandeur of nature. The rest of you might I will not get dispirited about this. I will think that it is derelict to think about that, but not give up on it. I am faced with those log we Greens do not. The rest of you might trucks going down the roads of central Tas- think that it is irrelevant. The rest of you mania to the woodchip mills and taking that might think, ‘As long as we have some eco- vast national forest repository to the rubbish nomic gain going, let the devil take the envi- dumps of Japan, Korea and elsewhere every ronmental inspiration on this planet.’ Of day of the week—150,000 log trucks of it course, that is not what people think. This is this year. Even when they say they will pro- a specific test. This is a gross and reprehen- tect a stem or two out of the millions being sible act of destruction of a national icon destroyed each year, they cannot do that. And which was in the specific custodianship of a even then the Democrats and Senator Mur- government entity under the Tasmanian gov- phy join with the Labor Party and the government, with the authority of Prime Minis- ernment in saying: ‘Let’s not have an inquiry ter Howard, who signed the Regional Forest into that. It is not important enough. It is dis- Agreement. When we cannot say that we appointing that we cannot support an in- should have an inquiry into that, it shows quiry.’ It is outrageous! It is a dereliction of how little is thought of the environment by parliamentary duty. It is a squandering by the this chamber and by the parties other than Democrats and the Labor Party of the public the Greens in this place. faith in terms of their past defence of the We are now going to get a vote on this nation’s heritage. cuckold—this cuckoo—of an amendment, brought in by Labor to make it appear as though it is doing something, in which Labor

CHAMBER Wednesday, 18 June 2003 SENATE 11903 says, ‘Measures were in place by Forestry Reef Marine Park as a result of a long- Tasmania.’ That is very much like saying: running campaign run by Andrew Bartlett; ‘Measures were in place when the building that we are also campaigning on genetically fell down. We have building measures. Al- modified food; that we are seeking to negoti- though 20 people were crushed to death we ate amendments to the heritage legislation; will not look at that, because there were that the Sydney Harbour Federation Trust is measures in place to prevent that happening about to come into operation with a whole beforehand.’ What an extraordinary line of range of environmental measures negotiated logic! In comes this motion—this amend- by the Democrats; and that low-sulphur die- ment—whereby Labor will remove the need sel standards will be coming in later this to have a vote on an inquiry. It does not year. These are all things we have negotiated. make any difference that the amendment is I hope you remind them about all these being opposed by every member of the La- things as well, because that is what happens bor Party, the Democrats and everybody in when you use the parliamentary process this place, as far as we know, except we properly. Greens. I am the chair of this committee and it Senator CHERRY (Queensland) (5.19 really offends me that you have not bothered p.m.)—by leave—I appreciate Senator to negotiate this with me. We have a full Brown’s passion on the issue of forestry and program of environmental and communica- I think it is commendable. It is good to have tions matters coming up, so we do not have passion in this place. I too am passionate time to conduct this particular inquiry. An about a lot of things, but they are still not inquiry on forestry in Tasmania is already appropriate for a Senate inquiry. For the re- being undertaken by a Senate references cord, the Democrats condemn Forestry Tas- committee, into which we have put a lot of mania for the practices that have led to this time and effort. I think it is very unfortunate event. I also wish it to be noted that the De- that Senator Brown will probably use this to mocrats continue to work on a whole range attack the Democrats in Tasmania even of environmental issues. We have an awful though we have a very strong record of using lot of activities going on as we speak. I know this place to achieve outcomes for the envi- that once this vote has occurred Senator ronment, rather than just talking about them. Brown will go down to Tasmania and tell Senator BROWN (Tasmania) (5.22 everybody how the Democrats voted against p.m.)—I seek leave to reply to Senator this inquiry into the greatest tree— Cherry. Senator Brown interjecting— Leave not granted. Senator CHERRY—Yes, you will do Senator BROWN—I want it on the re- that. I hope you remind them that we got $16 cord that leave for me to speak was denied million for wetlands protection in the Great by the Democrats. Barrier Reef and $40 million for Sustainable The ACTING DEPUTY PRESIDENT Cities and air quality measures so far this (Senator Hutchins)—That is fine. You have year. I hope you remind them that we negoti- got it on the record. ated with the government over the Queen- sland government’s $75 million land- Question put: clearing package; that there is going to be a That the amendment (Senator O’Brien’s) be 30 per cent extension of the Great Barrier agreed to.

CHAMBER 11904 SENATE Wednesday, 18 June 2003

The Senate divided. [5.26 p.m.] AYES (The President—Senator the Hon. Paul Barnett, G. Bishop, T.M. Calvert) Boswell, R.L.D. Brandis, G.H. Buckland, G. * Calvert, P.H. Ayes………… 39 Campbell, G. Carr, K.J. Noes………… 10 Colbeck, R. Cook, P.F.S. Crossin, P.M. Denman, K.J. Majority……… 29 Ellison, C.M. Evans, C.V. AYES Ferguson, A.B. Forshaw, M.G. Hogg, J.J. Humphries, G. Barnett, G. Bishop, T.M. Hutchins, S.P. Johnston, D. Boswell, R.L.D. Brandis, G.H. Kirk, L. Ludwig, J.W. Buckland, G. * Calvert, P.H. Lundy, K.A. Macdonald, I. Campbell, G. Carr, K.J. Macdonald, J.A.L. Mackay, S.M. Colbeck, R. Cook, P.F.S. Mason, B.J. McLucas, J.E. Crossin, P.M. Denman, K.J. Moore, C. O’Brien, K.W.K. Ellison, C.M. Evans, C.V. Patterson, K.C. Ray, R.F. Ferguson, A.B. Forshaw, M.G. Santoro, S. Scullion, N.G. Hogg, J.J. Humphries, G. Sherry, N.J. Stephens, U. Hutchins, S.P. Johnston, D. Tchen, T. Watson, J.O.W. Kirk, L. Ludwig, J.W. Webber, R. Lundy, K.A. Macdonald, I. Macdonald, J.A.L. Mackay, S.M. NOES Mason, B.J. McLucas, J.E. Allison, L.F. * Bartlett, A.J.J. Moore, C. O’Brien, K.W.K. Brown, B.J. Cherry, J.C. Patterson, K.C. Ray, R.F. Greig, B. Murray, A.J.M. Santoro, S. Scullion, N.G. Nettle, K. Ridgeway, A.D. Sherry, N.J. Stephens, U. Stott Despoja, N. Tchen, T. Watson, J.O.W. * denotes teller Webber, R. Question agreed to. NOES AUSTRALIAN SECURITY Allison, L.F. * Bartlett, A.J.J. Brown, B.J. Cherry, J.C. INTELLIGENCE ORGANISATION Greig, B. Lees, M.H. LEGISLATION AMENDMENT Murray, A.J.M. Nettle, K. (TERRORISM) BILL 2002 [No. 2] Ridgeway, A.D. Stott Despoja, N. In Committee * denotes teller Consideration resumed. Question agreed to. Senator GREIG (Western Australia) Question put: (5.36 p.m.)—I just want to clarify how we That the motion (Senator Brown’s), as are going to proceed with this matter. I un- amended, be agreed to. derstand that when we left off we were deal- The Senate divided. [5.31 p.m.] ing with Labor amendments (7), (8) and (9). (The President—Senator the Hon. Paul To facilitate things, it might be best if we Calvert) deal with those and then return to the De- Ayes………… 39 mocrat amendments, which I foreshadowed but which I have not yet had an opportunity Noes………… 9 to speak to. Majority……… 30

CHAMBER Wednesday, 18 June 2003 SENATE 11905

The TEMPORARY CHAIRMAN went to the question of the lack of provision (Senator Hutchins)—I shall divide the for legal representation. The opposition’s question on Senator Faulkner’s amendments. view on this is very clear: we have said that a The question is that Senator Faulkner’s person who is questioned ought to have ac- amendment (7) on sheet 2953 be agreed to. cess to legal advice. We also accepted from Senator NETTLE (New South Wales) the outset that it is possible that a lawyer (5.36 p.m.)—Could Senator Faulkner remind might prejudice an investigation. We have us of the nature of opposition amendments always accepted that if the prescribed author- (7), (8) and (9) that we will be asked to vote ity is satisfied on application by ASIO a per- on. son could be denied their lawyer of first choice. Senator FAULKNER (New South Wales—Leader of the Opposition in the Sen- Ordinarily, we would be expecting that, in ate) (5.37 p.m.)—I am not entirely clear why most cases under the regime, time would be we are dealing with opposition amendments given for someone to contact a lawyer, but I (7), (8) and (9) first, but I am happy to assist have made it clear, as I think interested sena- the committee. Will these amendments be tors would know, that we have always con- put first? templated a situation where if there is an emergency—and this is the balance I was The TEMPORARY CHAIRMAN—Yes, speaking about before question time—such because they are amendments to government as the imminent threat of terrorist activity, amendments. that is one issue for the parliament to give Senator FAULKNER—So amendment consideration to, and it is obviously a very (7) will be put separately and amendments important issue. On the other hand, you have (8) and (9) will be put together? the important question of the right to a law- The TEMPORARY CHAIRMAN—Yes. yer. They are, if you like, the balancing prin- Senator FAULKNER—I think that will ciples—and sometimes you do have balanc- assist the committee. Senator Nettle—I as- ing principles in legislation. sume in the interests of sorting through her I do not have any difficulty in clearly say- papers—has asked me to briefly outline what ing that in that sort of emergency, in that sort these amendments involve. As I indicated of urgent situation, waiting for a lawyer is previously to the chamber, these are funda- not tenable. I do not think any reasonable mentally technical amendments regarding Australian would say that it was tenable. legal advice. Our amendments provide that Anyway, that has probably given Senator any objection by ASIO to the presence of a Nettle enough time to look through her pa- particular lawyer is focused on the lawyer in pers—she obviously appreciates that—and question. I have indicated, and I think we are we can move on. all aware, that in a situation where a lawyer The TEMPORARY CHAIRMAN—The has been blackballed the prescribed authority question is that opposition amendment (7) on should assist the person to locate another sheet 2953 to government amendment (45) lawyer. be agreed to. It is worth us recalling that one of the key Question agreed to. recommendations of the Parliamentary Joint The TEMPORARY CHAIRMAN—The Committee on ASIO, ASIS and DSD—one question now is that opposition amendments of their key concerns—on the original bill (8) and (9) on sheet 2953 be agreed to.

CHAMBER 11906 SENATE Wednesday, 18 June 2003

Question agreed to. after ASIO has had the opportunity to ensure The TEMPORARY CHAIRMAN—The that the lawyer does not present a security question now is that Democrat amendments risk. The problem with this system, I would (15), (16), (17) and (19) on sheet 2923 re- argue, is that it is entirely conceivable that a vised to government amendments (15), (25) person detained under the act may not know and (45) be agreed to. of any particular lawyer which he or she could engage. Given that the regime contin- Senator GREIG (Western Australia) ues to apply to nonsuspects, it may well re- (5.43 p.m.)—I will take this opportunity to sult in the detention of people who have speak to those amendments briefly. Amend- never previously had any reason to engage a ment (15) is designed to ensure that a person lawyer. A person should not be deprived of who is required to appear before a prescribed their right to legal advice simply because he authority for questioning has a right to legal or she does not happen to know the name of advice. Under the current provisions, only a a particular lawyer or legal firm. They person who is taken into custody and de- should, I think, have the opportunity to re- tained for questioning has a right to have a quest legal advice, even if they are unable to lawyer of their choice present during ques- nominate a lawyer. These Democrat amend- tioning. A person who is not taken into cus- ments seek to achieve that. They provide tody but who is nevertheless required to ap- that, if a person is unable to identify or en- pear before a prescribed authority for ques- gage a lawyer of their choice, the prescribed tioning does not have that right. In those authority must assist the person to locate a circumstances the warrant may—and I stress lawyer who is competent and available to the word ‘may’—permit the person to con- provide advice in those circumstances. tact a lawyer, but it does not have to. With so much cross-party focus on the right to a law- Finally, Democrat amendment (19) seeks yer under this regime, it seems to be artificial to ensure that a person who is being ques- to draw a distinction between those who are tioned before a prescribed authority has ac- detained under the regime and those who are cess to a lawyer of their choice, if they want not. The distinction is particularly curious one, at all times during the questioning. The given that the heavy penalties which apply exception to this rule is that questioning can for noncompliance under the regime are not commence before the lawyer arrives if a ter- limited to people in custody; they apply to rorist attack is imminent. In its present form, any person who is required to attend for government amendment (45) places severe questioning before a prescribed authority. As and unwarranted limitations on a person’s such, it is important that these people have a right to a lawyer during questioning. Clause right to legal advice, and that right should be 34TB(1) provides that a person may be ques- enshrined in the act. tioned in the absence of a lawyer, but it fails to specify the particular circumstances in Democrat amendments (16) and (17) are which that is allowed. We Democrats are designed to address the situation in which a concerned that the generality of this section person does not know or know of a lawyer might enable the practical undermining of a whom he or she can engage whilst being person’s right to a lawyer. The Democrats questioned before a prescribed authority. At accept that circumstances may arise where, present, the act does provide that a person because of overriding and imminent security may have a lawyer present after the person concerns, a person may need to be ques- has provided the identity of that lawyer and tioned before their lawyer arrives at the place

CHAMBER Wednesday, 18 June 2003 SENATE 11907 of questioning. Of course, questioning can You are trying to prevent something which also occur in the absence of a lawyer if the may well be happening in a matter of hours person has indicated that they do not want a or certainly in the very near future, and we lawyer to be present. We Democrats feel believe that this amendment would prevent very strongly that these exemptions need to that from occurring. be set out clearly, and that is the purpose of We can understand the desire for question- the amendments we have before us. I seek ing to be in the presence of a lawyer—we the chamber’s support for them. have said that and we have provided for Senator ELLISON (Western Australia— that—but in this instance where you have the Minister for Justice and Customs) (5.48 threat of an imminent terrorist attack we be- p.m.)—The government opposes these lieve the questioning should be able to take amendments. I think I may have mentioned place. We believe that the threshold which is earlier that the government does not see that imposed by Democrat amendment (19) these amendments are necessary. In relation would result in lengthy delays before urgent to amendment (15), the government has al- questioning could commence. Of course, that ready agreed to amendments to ensure that a could be used as a delaying tactic to prevent person taken into custody has the right to ASIO from getting on with the job and deal- contact a lawyer. That is to ensure that per- ing with what would be a very urgent situa- sons are not held incommunicado. In relation tion, potentially of great threat to the com- to Democrat amendments (16) and (17), if munity. So, for those reasons, the govern- the person does not have any particular law- ment opposes Democrat amendments (15), yer in mind, it is really open to the pre- (16), (17) and (19). scribed authority to suggest that that person Senator CHERRY (Queensland) (5.51 contact a legal organisation such as Legal p.m.)—I rise to support the Democrat Aid. We do not think that it needs a specific amendments moved by my colleague Senator amendment for that. Greig. I want to speak very briefly on a gen- I understand that the Democrats say their eral concern I have about this legislation and amendment (19) is designed to remove any the reason that I think it is absolutely essen- doubt about the right of the interview-subject tial that these amendments need to be passed. to be informed of his or her rights to contact The concern we have is generally about the a lawyer of their choice. We believe that the accountability of ASIO to this parliament. bill already sets out very clearly the rights of The amendments ensure that accountability the person who is being interviewed. I made is at least in the legislation for the activities that very clear in the debate in the committee that ASIO is engaging in. My concern arises stage. We have made it very clear on the face from the lack of proper parliamentary scru- of the legislation that a person may have ac- tiny of ASIO’s activities. The committee cess to a lawyer at any stage of the proceed- which has been established under the Intelli- ings. We believe this amendment would pre- gence Services Act 2001 earlier today was vent any questioning before the prescribed authorised by the Senate to conduct an in- authority in the absence of a lawyer of quiry into weapons of mass destruction. My choice unless the prescribed authority is sat- concern is that it is so easy for the minister to isfied there is a threat of an imminent terror- prevent proper public inquiries into the ac- ist attack. What we are saying is that, where tivities of ASIO, DSD or ASIS. That is cer- you have an imminent terrorist attack, ques- tainly a matter that has come to the fore in tioning should proceed for obvious reasons.

CHAMBER 11908 SENATE Wednesday, 18 June 2003 my consideration as to whether to support Australia did and did not know in the lead-up the earlier reference. to the Iraqi war. These amendments are absolutely essen- Senator NETTLE (New South Wales) tial because of the flaws in the accountability (5.54 p.m.)—The Minister for Justice and mechanism. It is worth noting that, under Customs, in responding to these amendments section 4 of the schedule to the Intelligence put forward by the Democrats, talked about Services Act, the minister responsible for an the desire of the government to be able on agency can prevent the disclosure of opera- occasions to start the questioning of—let us tionally sensitive information. Section 6 remind ourselves—innocent and known to be makes it clear that, where a review is con- innocent people without the presence of a ducted in private, the committee must not lawyer under this legislation. The minister disclose or publish or authorise publication indicated that he wanted to allow ASIO to of the evidence or the contents of a docu- begin that questioning when he believed an ment without the written authority of the imminent terrorist threat was about to occur. person who provided it. Under section 7 Could the minister point me to where in the there are restrictions on disclosure to parlia- legislation there is a stipulation that ques- ment. Most importantly, the one I was par- tioning can begin of people, perhaps known ticularly concerned about was under section to be innocent, without a lawyer being pre- 20, the proceedings: the committee must not sent in the instance that there is an imminent without the approval of the minister respon- terrorist threat? Could the minister point me sible for ASIO, the minister responsible to where there is a reference? References ASIS or the minister responsible for DSD have been made to ‘imminent terrorist conduct a review in public. threat’. The Leader of the Opposition in the I raise these matters only because it is House made references to ‘national security fundamentally important when we talk about issues’. I am not familiar with those phrases these matters, whether it be ASIO or the ad- being in this particular piece of legislation vice this government received prior to the with regard to this decision being made war in Iraq, that we ensure that there is op- about when questioning should begin with- portunity for proper public parliamentary out a lawyer being present. Could the minis- scrutiny. Whilst there should be appropriate ter point me to where there is reference in the and reasonable exceptions given for intelli- legislation either to the term ‘an imminent gence matters, it is not appropriate to allow terrorist threat’ or to the term that the Leader these sorts of levels of secrecy to occur in of the Opposition used, which was ‘an issue inquiries. It is the reason why I opposed the of national security’? Labor Party’s reference to that committee of Senator ELLISON (Western Australia— the matters dealing with the Iraqi war, why I Minister for Justice and Customs) (5.56 would have preferred to have seen a public p.m.)—I have said previously that the De- inquiry, why I think these particular amend- mocrat amendment would prevent any ques- ments that Senator Greig has moved are so tioning of a person before the prescribed au- essential in making sure that there is proper thority in the absence of a lawyer of choice legislative accountability for the activities of unless the prescribed authority were satisfied our intelligence agencies and why I think it that there was a threat of an imminent terror- is absolutely essential that this government ist act. I am not saying that that phrase is in agrees to a full inquiry, judicial or whatever, the bill, because it is not. What we are saying to ensure that we get to the bottom of what here is that there could be an imminent threat

CHAMBER Wednesday, 18 June 2003 SENATE 11909 of a terrorist act—the threat is on your door- stance of human endeavour because, if you step—and you need to question that person do so, you will not have any room to move there and then. If the Democrat amendment whatsoever. Of course, the prescribed author- were passed, it could be used to delay any ity, being a person of some judicial standing, questioning which would need to be done on certainly would be well equipped to gauge an urgent basis. That is what we are saying in whether a matter is imminent or urgent, and relation to that. that would be one of the assessments made Senator NETTLE (New South Wales) by the prescribed authority. It just stands to (5.57 p.m.)—Perhaps I did not make myself reason that when you have questioning of clear to the minister. I was not intending to this sort the very nature of the threat would use this occasion to get into a debate as to entail asking whether this is something whether the questioning should be able to which will happen next year or something begin with or without a lawyer being present. which will happen at some sports stadium I understand that the minister is saying the tomorrow. That is part and parcel of the prescribed authority can make a determina- situation. That would be in the surrounding tion as to whether or not the questioning circumstances for the obtaining of the war- should begin on the basis of the range of fac- rant. tors that the minister has outlined to the Senator BROWN (Tasmania) (6.00 chamber. I want the minister to point me to p.m.)—The minister has not answered Sena- where in the legislation the guidelines, the tor Nettle’s question and he has certainly protocols and the requirements are for the made no satisfactory contribution to the de- prescribed authority to make that determina- bate. The minister is saying that every matter tion on the basis of the factors that the minis- is urgent—that it is an imminent terrorist ter has outlined to the chamber. I am not cur- threat that we are dealing with here—and he rently here to debate with the minister knows that is not true. He knows that this is whether or not the questioning should be about a long process of surveilling people able to start without the lawyer. I am happy who are under suspicion and includes allow- to have that debate with the minister if he ing friends, associates, people who might would like. At the moment I am simply ask- innocently have come into some piece of ing: can the minister show me where the knowledge about the people under suspicion, guidelines are for the prescribed authority to to be hauled in for questioning. In the main, enable them to make a determination as to that is not going to be an urgent situation. whether there is an imminent threat and The minister is quite wrong to use the ur- whether the questioning should begin with- gency as a matter for refusing Senator out a lawyer being present? Greig’s amendment to allow people to get Senator ELLISON (Western Australia— legal aid which is appropriate for the circum- Minister for Justice and Customs) (5.58 stances. p.m.)—There is no express provision for that If indeed a terrorist event is imminent, I because there does not need to be—that is a think we would agree that the situation dif- factor which a prescribed authority would fers. Under those circumstances, it may be take into account. Obviously ASIO, in its that you have to obviate some of the usual obtaining of the warrant and dealing with the processes, ensuring that the person’s own issue, would bring to the attention of the pre- legal assistance is there. I hear the minister scribed authority the seriousness of the issue. say, ‘If you are going to make sure that peo- You cannot regulate that for every circum- ple get the legal assistance they want, that

CHAMBER 11910 SENATE Wednesday, 18 June 2003 could be used to take up time.’ But we are We need to be very clear about the fact talking here about the majority of cases, that the legislation before us allows for two where there is time. We are talking about the different types of warrants. One allows for ongoing watch and vigilance and gathering people to be brought before a prescribed au- of information against potential terrorists in thority. They are not taken into custody but Australia. The urgent situation is the excep- they are required to appear before a pre- tion. scribed authority for questioning. Those peo- If that is not the case then, as Senator Net- ple do not have the right to legal representa- tle says, point out in the legislation where it tion. The minister made the point of saying says that this is only to be used in matters of that those people who are being detained and urgency. Of course it is not there. Our whole questioned by ASIO have a right to a lawyer worry in this situation is that it is not the citi- and, yes, we now understand that clearly to zens involved in urgent situations of terror- be the case. But it is not the case for those ism that are going to be caught up by this people who have not been taken into cus- legislation—quite the reverse. This is giving tody. The amendment before us does not do powers to the secret surveillance authorities what the minister says it does. The minister’s to haul in citizens when they want to get in- logic does not flow. There is no logic. If a formation to find out if there is anything do- terrorist threat were imminent, somebody ing—not on the basis that they know what is could not argue before a prescribed authority, doing, but on the basis that they do not know demanding the right to a lawyer. The what is doing and they want to get informa- amendment that we have moved is designed tion. The government’s argument here fails to expressly allow for that scenario. and this is the problem. We are going to see Senator ELLISON (Western Australia— legislation supported by the opposition Minister for Justice and Customs) (6.05 which deprives people, on a spurious argu- p.m.)—I want to make it absolutely clear ment, of proper access to legal assistance. that, where you put into place a regulation That is why the Greens will be supporting and you have a situation of this sort, which the amendment that Senator Greig has could be quite fluid, then by having that brought forward. regulation you really restrict unduly the car- Senator GREIG (Western Australia) rying out of what are very important duties. (6.03 p.m.)—I think it is important that we Imposing a requirement to satisfy the pre- are very clear about this. Democrat amend- scribed authority of the imminent threat of a ment (19) in particular makes it very clear terrorist act is really putting the cart before that it cannot and does not prevent question- the horse, because you are then allowing that ing commencing in the absence of a lawyer question to be debated. That was the very if there is believed to be an imminent threat issue I was talking about leading to delay or danger. It expressly allows for that, so the that could be brought about mischievously. minister’s argument is a nonsense. It could Delay to questioning could be brought about not be the case that somebody that had been where there is an imminent threat, because brought before a prescribed authority could you would be arguing as to whether or not try and obfuscate or delay questioning by the threat is imminent. You would be arguing demanding the right to a lawyer in the sce- the toss whilst plans were being put into nario where a terrorist threat was believed to place to carry out a public terrorist attack be imminent. That is not the case. down the road.

CHAMBER Wednesday, 18 June 2003 SENATE 11911

I can see what Senator Greig is saying— formation of ASIO. There is no other body or ‘We think that where there is an imminent any other argument they can listen to in this threat you can have your questioning without context on which to base that decision. The the lawyer’—but the trouble is that, once you prescribed authority will have ASIO putting regulate for that, you then raise the debate as an argument to them about the nature of the to whether it is an imminent threat. The pre- threat and whether it is an imminent threat, scribed authority then enters into a debate and the prescribed authority will be asked to with all concerned as to whether there is an make a determination. imminent threat. We prefer to say that the We are not asking the minister to define only way to avoid any delaying tactic that what is an imminent threat. I agree with the could be employed is to leave it to the discre- minister that it would be inappropriate to put tion of the prescribed authority. Of course, those kinds of prescriptions and regulations the Democrats and the Greens would say that into the legislation. We are simply saying that is leaving an open discretion to a pre- that, if the legislation says that the prescribed scribed authority in what is a serious situa- authority is to make a determination on tion. We say: yes, it is, because you have to whether we have an imminent threat or an have that discretion. If you regulate it, you issue of national security, there be some will end up with an argument over the defini- guidelines and some basis for that prescribed tion of what is an imminent threat and what authority to make that determination. I am constitutes that. We believe that the pre- not asking the minister to go out and stipu- scribed authority is a person of such judicial late the basis on which they would do that— standing that you can bestow that discretion what is an imminent threat, define it and put upon them with safety, especially when you it all in the legislation. I am seeking to give look at all the safeguards that we have in the some guidelines to the prescribed authority bill. That is why we oppose the amendment. on how they will make that determination, Senator NETTLE (New South Wales) because the minister is saying to us that, if (6.07 p.m.)—It is worth making sure that the ASIO puts a case to the prescribed authority Senate is clear about what the minister is that there is an imminent threat, there is an saying on this issue. I understand that to be issue of national security, the prescribed au- that we are allowing the prescribed authority thority can make that determination to begin discretion in making a determination as to questioning without a lawyer being present. whether there is an imminent terrorist threat. We are back where we started, before the We are asking them to do that on the basis of ALP decided to negotiate with the govern- what information? We are asking them to do ment about whether you could have a lawyer that on the basis of information provided to present. If we are at a point where there is an them by ASIO. argument put to the prescribed authority, I take the minister’s point that we cannot they make the determination on the basis of have a long and extensive debate about no guidelines, purely on the basis of the in- whether there is an imminent terrorist threat. formation given to them by ASIO, and they I recognise that point. We are saying to the can begin questioning without a lawyer, then, minister that we recognise that the prescribed clearly we are going to see a vast number of authority has to be able to make that deter- instances where questioning begins without a mination. The answer to the question about lawyer. That takes us right back to where we what they will base that decision on is quite were before the opposition went to the gov- clear: they will base that decision on the in- ernment to discuss the issue of whether one

CHAMBER 11912 SENATE Wednesday, 18 June 2003 has a lawyer present for this determination. Senator ELLISON (Western Australia— So just to be clear on what the minister is Minister for Justice and Customs) (6.12 saying: the minister is saying, ‘It is okay to p.m.)—I thought I had answered this previ- go ahead and question without a lawyer be- ously. I said that you do not have to put the ing present.’ name of the lawyer on the warrant. It is as The TEMPORARY CHAIRMAN simple as that. Note 3 to section 34D simply (Senator Lightfoot)—I put the question that explains that ‘a warrant authorising the per- Democrats amendments (15), (16), (17) and son to be taken into custody must permit the (19) to the government amendments (15), person to contact a lawyer and must identify (25) and (45) be agreed to. such a lawyer’, and when read with note 1 to section 34D it is obvious that note 3 does not Question negatived. require the warrant to identify a lawyer; The TEMPORARY CHAIRMAN—The rather, it is by reference to a class of people. question now is that government amend- That is, the warrant must refer to a lawyer as ments (3), (4), (15), (16), (23) to (26), (38), a class of person who can be contacted, not a (40), (41), (45) as amended, (46) and (48) on specific lawyer by name. That is really what sheet RA231 be agreed to. is being said, but I said that before. There Senator NETTLE (New South Wales) really is nothing further I can add to that. (6.11 p.m.)—The minister made a commit- Senator NETTLE (New South Wales) ment to the Senate prior to question time to (6.13 p.m.)—The minister made a commit- find out an answer to my question on gov- ment that he would go away and come back ernment amendment (24) which relates to with a determination, and I suppose that whether the name of the lawyer needs to ap- where we are at now is where we were at pear on the warrant. My question related to previously—that is, the minister believes that note 3 that is a part of that amendment. a reading of note 3 to government amend- Given the minister’s undertaking that he ment (24) does not require the name of the would get back to us, I would like to give lawyer to be put on the warrant. You are him the opportunity to add to the record any shaking your head, Minister. Is that correct? further information he may have as to Senator ELLISON (Western Australia— whether the name of the lawyer will appear Minister for Justice and Customs) (6.14 on the warrant and the nature of the clause at p.m.)—I think I have said it now a few times the end of note 3 in government amendment but I will say it again: the warrant does not (24). have to have the name of the lawyer because, The TEMPORARY CHAIRMAN— for obvious reasons, that name would not be Thank you, Senator Nettle. I put the question known when the warrant is obtained. It does again that government amendments (3), (4), not have to have the name of the lawyer on (15), (16), (23) to (26), (38), (40), (41)— it. Senator Brown—Mr Temporary Chair- Senator BROWN (Tasmania) (6.14 man, does the minister have a response to p.m.)—One other matter, which comes from Senator Nettle on that matter? before and is very important, is that I asked The TEMPORARY CHAIRMAN—Not the minister a number of times about the pro- at all—I cannot compel the minister to tocols, which are important to the considera- speak. tion of all these amendments. These are the protocols that will define many matters, in-

CHAMBER Wednesday, 18 June 2003 SENATE 11913 cluding the circumstances under which an matter of record in both houses of parlia- innocent citizen is interrogated by the un- ment—here and in the other place. qualified ASIO person before the faceless The issue that Senator Brown addresses is judge. It is logical that we should be looking that we should have these protocols here and at this legislation with at least the draft of now and that we should be debating them those protocols in hand, but we are not. I am with the legislation. We often have regula- not prepared to accept that they are going to tions which are not yet drafted where we sort everything out. It is very important that have legislation which says that regulations those protocols be available to this commit- will be drawn up at a subsequent time. A tee. I ask the minister: do they exist? Have warrant cannot be issued under this act with- they been drafted? What is the status of those out the protocols having been settled. It is a protocols? Why don’t we have them? starting point, as I understand it. I have dou- Senator ELLISON (Western Australia— ble-checked that a warrant cannot be issued Minister for Justice and Customs) (6.15 under these proposed provisions unless the p.m.)—We are drafting protocols. As I have protocols have been finalised. Often we have said earlier, they will be presented in final- legislation where regulations are left to a ised form to both houses of parliament and later date to be drafted and we also do that will be outlined in a briefing to the parlia- with other instruments. We do not believe mentary Joint Parliamentary Committee on that at this point in time it is appropriate to ASIO, ASIS and the DSD. involve debate on the protocols with the leg- Senator Faulkner—You said ‘tabled in islation. The protocols are guidelines which both houses’. will be used for the carrying out of questioning. We believe the bill has enough particu- Senator ELLISON—If I said ‘tabled’ I lars in it to cover the question and we believe meant they will be presented. that it would not be appropriate to put the Senator Faulkner—You said ‘presented’. protocols forward at this stage. Senator ELLISON—Yes, I said ‘pre- Senator BROWN (Tasmania) (6.18 sented’ just then, and I think I might have p.m.)—It is not about what the government said ‘tabled’ earlier. believes is appropriate; it is about what the Senator Faulkner—I just want to be pre- committee needs to know. The protocols cise. should be here. There have been months in Senator ELLISON—They will be pre- which the protocols should have been drawn sented to each house; they will not be tabled up and adjusted. In fact, I do not believe that as such. the protocols are not available, but I do believe that we are being snowed by this proc- Senator Faulkner—It is the same thing, ess. This is a part of the process—that is, to isn’t it? have the parliament consider the legislation Senator ELLISON—No, you could read without the protocols and then bring them in them and not table them. It depends on how later and argue that they have to be passed to the Attorney-General decides to present suit the legislation which the Senate has al- them. It could be by way of ministerial ready passed at a time when it did not have statement or he could choose to table the set knowledge of them. It is a very clever politi- of protocols. I do not think there has been cal process. It duds the Senate and it duds the any thought given to how that would be committee. This is not usual legislation; this done, but suffice it to say that they will be a is very serious legislation. The minister said

CHAMBER 11914 SENATE Wednesday, 18 June 2003 that on other occasions regulations are some- fied that written procedures for the custody, times drawn up afterwards. Is the minister detention and interview of persons under a telling the committee that these protocols are warrant are in place before consent can be disallowable instruments? given to the Director-General of Security to Senator FAULKNER (New South seek a warrant. That is the point I have made: Wales—Leader of the Opposition in the Sen- he cannot issue a warrant until these are in ate) (6.20 p.m.)—I have two quick points. It place. strikes me that there is no alternative but to The written statement must be developed interpret the words ‘presentation of the by the Director-General of Security in con- statement to each house of parliament’ as sultation with the Inspector-General of Intel- meaning tabling the statement. There is no ligence and Security and the Commissioner other acceptable or reasonable way to do of the Australian Federal Police. I said that this. It is perhaps only a fine point, but that is earlier. The statement must be approved by how I interpret those words. I think it is how the Attorney-General, presented to each any reasonable person would interpret them house of parliament and outlined in a brief- and I am quite confident it is the way the ing to the Joint Parliamentary Committee on government will act in relation to this par- ASIO, ASIS and DSD. As I understand it, ticular matter. recommendations 22 and 23 of the Senate On the other point, which is raised by Legal and Constitutional References Com- Senator Brown, it seems to me that the op- mittee report on this bill touched on this. The tion is of course available to the government government has agreed to detail the matters to table draft protocols if they wish. It would that are to be included in the written state- be more reasonable for Senator Brown, if he ments—that is, the areas that this protocol is were to make this request of the government, to cover. to put it in those terms. I am not suggesting We do not believe that providing either he is being unreasonable in the way he has house with a draft copy of the protocol is presented it— appropriate. We believe that these procedures Senator Brown—We were not talking have to be gone through first and that it then about draft protocols. be put to the parliament on the basis that I have stated—by the Attorney-General and in Senator FAULKNER—No, but I think a briefing to the Joint Parliamentary Com- you will appreciate that is a question of mittee on ASIO, ASIS and DSD. The parlia- where the process in relation to the protocols mentary joint committee—or indeed any has reached. In his response, it might be senator or member of parliament—can raise worth the minister canvassing that issue of issues at that time. the tabling of draft protocols. That might be of some benefit to the committee. Senator BROWN (Tasmania) (6.24 p.m.)—Being a person who has a reason- Senator ELLISON (Western Australia— ableness of the order of Senator Faulkner’s Minister for Justice and Customs) (6.22 which I have always admired, yes, I do think p.m.)—I have outlined previously—and I that the presentation of the draft protocols is will do it again—the process for the devel- in order. If they are not finished, let us have opment of these protocols. The Australian what there is of them. My understanding, Security Intelligence Organisation Legisla- from what the minister said earlier in the day, tion Amendment (Terrorism) Bill 2002 [No. is that the protocols here are going to deal 2] requires the Attorney-General to be satis-

CHAMBER Wednesday, 18 June 2003 SENATE 11915 with a whole range of matters, including the luded to on several previous occasions on treatment of the innocent victims of this leg- sheet RA231 be agreed to. islation who are interrogated in secret before Question agreed to. the judge of the day whose name we shall Senator Brown—I circulated an amend- never know. ment earlier in the day and I was wondering, We as a mature representation of the Aus- Chairman, if you could tell me where that tralian people have a right to know what will come up for consideration. those guidelines are. And we should be dis- The TEMPORARY CHAIRMAN—It is cussing them as a whole, not serially. I do on page 4 of the running sheet but it has been not believe that the government does not put in by hand. It is straight after schedule 1, have draft protocols now, and I believe that item 24 and before clause 2 of schedule 1, they should be presented. But, as I said, I item 24. It is immediately after Senator Net- think this is part of a deliberate process to tle’s amendments. There will obviously be a serially—with advantage to the govern- new running sheet tomorrow, where it will ment—present this draconian legislation and be in printed form, Senator Brown. The the attendant rules to the parliament, the question is that section 34AA stand as Senate and the people of Australia in a way printed. that maximises the chance of the worst aspects of the legislation getting through. Question negatived. That is why, for example, the government Senator ELLISON (Western Australia— refused last weekend to give the Greens and Minister for Justice and Customs) (6.28 the Democrats the amendments we are deal- p.m.)—by leave—I move government ing with now. It did not want us to be able to amendments (47) and (62) on sheet RA231: deal with those; it did not want there to be (47) Schedule 1, item 24, page 32 (after line 5), community input and it did not want the ex- after subsection (2), insert: perts in the legal and security fields to have Legal adviser to be given copy of the input. It was a very deliberate effort by the warrant government that is being compounded now (2A) A person exercising authority under the by the minister saying, ‘It’s a draft and we’re warrant must give the legal adviser a not sure that the parliamentarians should see copy of the warrant. This subsection it anyway.’ I do not accept that line of think- does not: ing at all—of course parliamentarians have a (a) require more than one person to give right to see these protocols when they are the legal adviser a copy of the produced. There is not much we can do to warrant; or insist that the protocols be brought forward, (b) entitle the legal adviser to be given a because the opposition would not support us, copy of, or see, a document other but I want to note here that the process is than the warrant. wrong. It does not lead to the quality of out- (62) Schedule 1, item 24, page 36 (after line 20), come that we should be getting on a matter after section 34V, insert: as important as this. 34VA Lawyers’ access to information for proceedings relating to warrant The TEMPORARY CHAIRMAN (Senator Lightfoot)—The question is that The regulations may prohibit or the government amendments that I have al- regulate access to information, access to which is otherwise controlled or limited on security grounds, by lawyers

CHAMBER 11916 SENATE Wednesday, 18 June 2003

acting for a person in connection with (61) Schedule 1, item 24, page 36 (line 20), omit proceedings for a remedy relating to: “2”, substitute “5”. (a) a warrant issued under section 34D These amendments relate to an increase in in relation to the person; or penalties for a breach of secrecy by lawyers (b) the treatment of the person in who are involved in the questioning process. connection with such a warrant. I alluded to this in the second reading These amendments still relate to the issue of speech, I think. The regime now permits lawyer of choice but perhaps more indirectly. people who have not undergone a security The current regime would be replaced with a clearance process to play a much greater role scheme that allows for the provision of a in the proceedings. But with that comes an lawyer of choice, with a range of safeguards obligation that they do not divulge informa- to protect the disclosure of sensitive information which could jeopardise matters of secu- tion. Under these proposals, the lawyer rity. would not have to hold a security clearance. For this reason the government proposes The bill, however, provides for the making to increase the penalties for the offences re- of regulations which may prohibit or regulate lating to the release of sensitive information access to information that is controlled on by legal advisers, representatives or other security grounds. It is against policy and people to whom information is being com- against the law for a person who has not un- municated during the execution of the war- dergone a security clearance process to re- rant and who do not have a prescribed role ceive access to national security classified during warrant proceedings. The proposed material. new penalty of five years, which is an in- The bill will also now clarify that, while a crease from two years, will provide much person’s legal adviser is entitled to see a stronger protection against the disclosure of copy of the warrant under which the person sensitive information. Again, these are provi- is being questioned, the legal adviser is not sions which speak for themselves and I entitled to see classified material. I think this commend them to the committee. speaks for itself. We have covered previously Senator BROWN (Tasmania) (6.32 in the debate the fact that we need to achieve p.m.)—Why was it two years before and a balance between what the lawyer has ac- why is it five years now? I know the minister cess to, based on looking after the interests says that more people are involved, but that of the person concerned, and the protection does not explain why the penalty is being of what is classified material. On that basis, I increased by 150 per cent. commend these amendments to the commit- Senator ELLISON (Western Australia— tee. Minister for Justice and Customs) (6.32 Question agreed to. p.m.)—The situation is of course that the Senator ELLISON (Western Australia— government have, with their proposed Minister for Justice and Customs) (6.30 amendments, increased the pool of lawyers p.m.)—by leave—I move government that you can draw from. As a result of that amendments (52), (57) and (61): we have opened up access, if you like, to this (52) Schedule 1, item 24, page 33 (line 13), omit questioning. We are saying that you can have “2”, substitute “5”. a lawyer of choice, subject to those matters (57) Schedule 1, item 24, page 35 (line 36), omit that I mentioned previously, with an objec- “2”, substitute “5”. tion by ASIO being upheld by a prescribed

CHAMBER Wednesday, 18 June 2003 SENATE 11917 authority. But with that comes an obligation. lawyer coming in to represent a person and We believe that in the absence of security making sure they do not release secrets. I clearance, if you are just bringing in any would have thought that you would have lawyer, it is fair to indicate to them the sever- needed every bit as much of an assurance, ity of divulging what is classified informa- given the history of spy agencies and the tion, and an increased penalty is appropriate. massive breaches there have been at times In any event, two years was not appropri- from the most trusted central figures in intel- ate having regard to the damage that the dis- ligence agencies. It is those people who need closure of such information could have. I to know that, if they break the law and re- think everyone would agree that disclosing lease secrets that are not in the interests of information of this sort could have serious the nation, they will be severely dealt with. ramifications if it were to, say, alert terrorists The government thinks the other way involved in a potential attack. You need to around. I cannot understand it. There is no have a stiff penalty there in order to keep the logic to it. integrity of the regime of questioning and Question agreed to. investigation. Senator FAULKNER (New South Senator BROWN (Tasmania) (6.34 Wales—Leader of the Opposition in the Sen- p.m.)—There are two things here. Firstly, the ate) (6.36 p.m.)—I move opposition amend- minister is saying that he got it wrong when ment (6) on sheet 2953: he drew up the legislation and he has had to (6) Schedule 1, item 24, page 19 (after line 17), change it. The argument for that is non- at the end of section 34G, add: existent. It is not just unconvincing; it is not (10) A person who is or has been before a there—how the assessment was done in the prescribed authority for questioning first place and why it has been changed. Sec- under warrant may not disclose any ondly, he then gets back to front the rest of information about the questioning or his argument, because he says, ‘When we the production of records or things had security cleared lawyers appearing—a unless authorised to do so in writing by bank of lawyers that we thought were the prescribed authority. okay—if they went out and revealed secrets, Penalty: Imprisonment for 5 they should have got a two-year sentence. years. But now that people are coming in who are (11) Subsection (10) does not apply to not security cleared and are not government contact between the person and the approved, they should cop a five-year sen- Inspector-General of Intelligence and tence.’ Security or the Ombudsman under: I would have thought that somebody who (a) sections 10 and 13 of the Inspector- got security clearance and released secrets General of Intelligence and Security should be in for a bigger sentence than a per- Act 1986; or son who has not sought listing on that par- (b) section 22 of the Complaints ticular august list that the government had (Australian Federal Police) Act before. There is a scramble of thinking in- 1981; volved here. I just think the minister has as the case may be. reached for another number. There is a vast Opposition amendment (6) provides for en- difference between two and five years. He forceable secrecy provisions governing dis- says this is a way of threatening the other closure of attendance at interviews. Given

CHAMBER 11918 SENATE Wednesday, 18 June 2003 the nature and the possible context of infor- (ii) section 22 of the Complaints mation that is being dealt with, the opposi- (Australian Federal Police) Act tion says, and has consistently said, that it is 1981; appropriate that the prescribed authority be as the case may be; or the judge of what can be said and to whom it (b) contact between the person or the can be said. As such, it is the opposition’s person’s lawyer of choice and a view that it should be an offence to break court or another lawyer for the any such order made by the prescribed au- purposes of seeking a remedy in thority. Let us be clear: these provisions ap- relation to the warrant, the treatment ply to the person who is the subject of the of the person in connection with the warrant, or the questioning or warrant. I have been consistently surprised custody of the person in connection that the government actually has not picked with the warrant. up these provisions, but it has not. I think This is a relatively minor amendment, but I these provisions would strengthen the bill. think it has a major impact. It is designed to I want to acknowledge that the amend- avoid any doubt about a person’s lawyer be- ment to my amendment that stands in the ing able to communicate with a court or with name of Senator Greig on behalf of the Aus- another lawyer—for example, a barrister— tralian Democrats does, I think, strengthen for the express purpose of challenging the the opposition’s amendment and does deal basis of a person’s detention. The right of a with an important technical issue. At this person detained under the act to seek a rem- stage in the debate, I would like to acknowl- edy from a court in relation to their detention edge that and to thank Senator Greig for pro- is made very clear, I think, in other parts of posing such an amendment to deal with the the legislation, but in order to assist them in matter. I think it is of assistance to the com- the exercise of this right effectively the per- mittee. I suspect that the fate of this amend- son’s lawyer will need to divulge informa- ment that I have moved on behalf of the option concerning the person’s detention to a position may be clear, but I think the argu- court and possibly to a barrister who has ments for this provision are strong and I been engaged to act on behalf of that person. commend it to the committee. Given that legal practitioners face heavy Senator GREIG (Western Australia) penalties if they divulge information con- (6.39 p.m.)—I move Democrat amendment cerning a person’s detention, it is important, (14) on sheet 2923 revised, which would in order to avoid any doubt, to ensure that amend opposition amendment (6): this exception is made abundantly clear, and (14) Opposition amendment (6), omit subclause that is the purpose of this amendment. (11), substitute: Senator ELLISON (Western Australia— (11) Subsection (10) does not apply to: Minister for Justice and Customs) (6.40 (a) contact between the person and the p.m.)—I will address both of the amend- Inspector-General of Intelligence ments, to save time. If you were to support and Security or the Ombudsman opposition amendment (6) I could see why under: you would support Democrat amendment (i) sections 10 and 13 of the (14). However, the government opposes op- Inspector General of Intelligence position amendment (6) and therefore op- and Security Act 1986; or poses Democrat amendment (14). I can understand the sentiment behind this. The gov-

CHAMBER Wednesday, 18 June 2003 SENATE 11919 ernment’s view, however, is that there is a first amendment the committee dealt with lifetime secrecy obligation here and that to proposed to water down the sunset clause police it would be both legally and adminis- that applied to the whole act to relate to just tratively unrealistic. The existing provisions one division. This was not necessarily the in the bill already effectively subject a per- government caving in to the ALP’s demands son being questioned to secrecy obligations but perhaps the other way around. while they are the subject of the warrant. We The amendment that we have before us believe that when it does count is when that now is an example of the opposition propos- is in place. Of course, those provisions are ing to add another offence to the ASIO legis- there to stop people from alerting any ac- lation. We have already heard from Senator complices, or potential accomplices, in rela- Faulkner, and we well know what the fate of tion to a terrorist act. this amendment will be, but it is worth not- The type of obligation proposed here ing that, rather than the government caving would prevent the subject of a warrant from in to the opposition, this is the opposition advising their employer of the reason for putting forward a proposal to add additional their absence from work without first ap- offences to probably the most draconian proaching a prescribed authority to ask per- piece of legislation that we have seen in not mission to speak about their questioning. I only this parliament but Western democra- can understand that the Democrat amend- cies around the world. ment does remedy certain situations which Senator BROWN (Tasmania) (6.45 have been outlined by Senator Greig, but we p.m.)—Maybe the government is saying this, believe that administratively the provision in its own way, but the other problem with would be difficult to operate and monitor, this amendment, which the International and the prescribed authority may no longer Commission of Jurists has pointed out, is be alive or performing that role at the time that a terrorist who is caught is not going to the person wants to seek consent to discuss be concerned about this penalty, but it is go- any aspect of the questioning process. ing to be very repressive on people who are As I say, I do understand the sentiment of in no way involved in terrorism and who are the opposition in moving this. I can say that I going to be hauled in under this legislation— initially was attracted to it. But the govern- those innocent people who have information. ment, on balance, is of a view that it cannot If they can be shown at some later date to agree to opposition amendment (6) and De- have spoken to their spouse or to somebody mocrat amendment (14), for these reasons. else and word got around about where they Senator NETTLE (New South Wales) were being held then ‘bang!’ they are caught (6.43 p.m.)—I thank the minister for his under this piece of legislation. That worries comments, because I was interested to hear me quite a deal. It is one of those classic what the government’s position would be in situations where the good people, if you like, relation to this opposition amendment. I go get penalised and for the rest it does not back to my earlier comments in the commit- count. tee stage of this bill, which went to the media Question agreed to. reports about this bill and this debate, in Original question, as amended, negatived. which the ALP would like us to believe that Senator ELLISON (Western Australia— the government had caved in to their de- Minister for Justice and Customs) (6.47 mands on a range of different issues. The

CHAMBER 11920 SENATE Wednesday, 18 June 2003 p.m.)—by leave—I move government sheet RA231, moved by Senator Ellison, be amendments (10) to (12) on sheet RA231: agreed to. (10) Schedule 1, item 24, page 8 (lines 32 and Question agreed to. 33), omit subsection (5). Senator FAULKNER (New South (11) Schedule 1, item 24, page 9 (lines 1 to 7), Wales—Leader of the Opposition in the Sen- omit subsections (6) to (8). ate) (6.49 p.m.)—I was on my feet to make (12) Schedule 1, item 24, page 9 (lines 8 to 12), some comments— omit subsection (9). The TEMPORARY CHAIRMAN—I do These amendments deal with prescribed au- apologise. I am wide of vision. thorities. The government is proposing a number of amendments to the provisions, Senator FAULKNER—I would never which set out the role of prescribed authori- accuse you, Mr Chairman, of having tunnel vision. ties. It is unnecessary to prescribe three-year terms for these authorities because the war- The TEMPORARY CHAIRMAN— rant provisions in the bill will cease to have Senator Faulkner, you are normally very effect three years from royal assent due to conspicuous. On this occasion you were not. the sunset clause. Similarly, the provision Senator FAULKNER—It is true, of which required that the minister keep a list of course, that the prescribed authority plays a those persons who had consented to being crucial role in the questioning regime. (Time appointed as a prescribed authority, and expired) which outlined the procedure for removing a Progress reported. person’s name from that list, is also to be removed. This is because such an administra- DOCUMENTS tively complex scheme is inappropriate for Health and Ageing: Gene Technology legislation which will cease to have effect in Regulator three years time. The situation is that, be- Senator LUDWIG (Queensland) (6.51 cause of the sunset clause applying in this p.m.)—I move: area, you do not have to prescribe a three- That the Senate take note of the document. year term for prescribed authorities. I rise to take note of the quarterly report of Finally, the provision which set out how the Gene Technology Regulator. May I say prescribed authorities are to be remunerated that it touches quite significantly on the is unnecessary because the Remuneration health and ageing area. The report is for the Tribunal Act will provide a basis for ensur- period from 1 October 2002 to 31 December ing that a person acting as either an issuing 2002. It is the first report to this parliament authority or a prescribed authority under the dealing with the Gene Technology Act 2000, bill will be appropriately remunerated. It will which requires the Gene Technology Regula- be dealt with in that piece of legislation. It is tor to provide to the minister after each quar- really more of a mechanical amendment, if ter a report of its operations during that quar- you like. I commend the amendments to the ter. It touches on genetically modified organ- committee. isms, GMOs, licence issues during the quar- The TEMPORARY CHAIRMAN ter, any breaches of conditions of GMOs (Senator Lightfoot)—The question is that and, of course, auditing and monitoring of government amendments (10) to (12) on dealings with GMOs.

CHAMBER Wednesday, 18 June 2003 SENATE 11921

The report shows that the work that went Cairns Base Hospital, a $182 million devel- into the original bill was well worth it. That opment for Townsville Hospital at Douglas bill became the act, which provides that that and $18 million for the Maryborough Hospi- type of information be put on the public re- tal redevelopment. There has been a signifi- cord so that people can understand and ap- cant improvement in the East Block of the preciate the work of the national regulatory Royal Brisbane Hospital as part of the $510 system. In dealing with the national issue of million investment in the flagship Herston health, Senator Santo Santoro today said in hospital complex. Some $78 million was the matter of public interest debate that some spent there. issues in Queensland were not quite up to The quarterly report of the Gene Technol- standard. It is worth while using this oppor- ogy Regulator helps to put this in context. tunity to also deal more expansively with the When you look at the amount of money that successes in Queensland health—the report has been spent by the state Labor govern- by the Gene Technology Regulator touches ment on improving health in Queensland, the on those issues. The current health budget in report of the Gene Technology Regulator fits Queensland is of the order of $4.63 billion, into the overall plan for the national health up from $3.1 billion in 1998-99 when the industry. But when you look at the approach Labor government came to office. Senator that has been taken, you also have to be con- Santoro should appreciate that during the cerned about the area— (Time expired) Labor period of government in Queensland Question agreed to. there has been a significant improvement to the health industry and to the health of ADJOURNMENT Queenslanders themselves. With winter com- The ACTING DEPUTY PRESIDENT ing on, it is worth providing at least some (Senator Lightfoot)—Order! There being no answers to the issues that Senator Santoro further consideration of government docu- mentioned. ments, I propose the question: In Queensland, some $8.5 million is being That the Senate do now adjourn. spent on the mental health unit at the Prin- Health: Mental Illness cess Alexandra Hospital. This will contribute Senator TIERNEY (New South Wales) significantly to assisting special-needs pa- (6.57 p.m.)—I rise tonight to inform the tients. Of the order of $100 million has been Senate about recent findings by the Austra- spent on capital works to ensure that there lian Institute of Health and Welfare and the are extra mental health beds across the state. Mental Health Council of Australia on the The latest National Mental Health Report state of mental health care. Australians are 2002 shows that in 1999-2000 spending was flocking to their GPs with complaints of 63 per cent higher than in 1992-93, which is depression, anxiety, stress, sleep disorders equivalent to a 42 per cent per capita in- and substance abuse. These aspects of mental crease and twice the national growth rate. illness represent an enormous waste of hu- Further health achievements in Queensland man talent and a huge loss to the community during the last 10 years include a $2.8 billion and the economy. One in five Australians has state-wide health building program. Health a diagnosable mental health problem, but services have been rebuilt from the Torres unlike physical illness—the symptoms of Strait Islands to the Gold Coast and west out which many people can understand—mental to Cunnamulla. There has been a redevelop- illness remains surrounded by stigma and ment program of some $130 million at

CHAMBER 11922 SENATE Wednesday, 18 June 2003 mystery. Depression is the fourth largest called out to act in the place of mental health cause of disability in Australia and is pro- workers. This is in the absence of proper jected to be the second largest cause by servicing by New South Wales government 2020. In fact, the World Health Organisation units for mental health, and it is a major has likewise estimated that by 2020 depres- problem particularly in our rural and regional sion will be as big a burden on world health areas. Instead of doing what they are sup- as heart disease. It is already the fourth most posed to be doing in police work, these offi- common ailment that doctors encounter. cers are becoming default mental health care Recent reports have revealed that there workers. were almost 11 million visits to general prac- This has happened because the ALP gov- titioners for mental health problems in 2000- ernment in New South Wales is failing to 01, with that category accounting for over provide adequate funding for this sector. seven per cent of all problems managed by Again, as in so many areas of government, general practitioners. The recent report by the Carr government is coming sixth out of the Australian Institute of Health and Welfare sixth compared with the other states. In rec- found that depression was the most common ognition of the low proportion of total mental problem handled by GPs. The extent of the health care expenditure allocated to non- crisis in mental health services was clearly government organisations in New South outlined in the inquiry into mental health Wales, the Pezzutti report proposed that New services in New South Wales by the Select South Wales Health have increased and bet- Committee on Mental Health, the report of ter budgets for funding non-government or- which was tabled in the New South Wales ganisations. parliament last December. That report repre- The proportion of health expenditure de- sented a comprehensive analysis of the state voted to mental health in New South Wales of mental health services and service deliv- is a national disgrace. On the other hand, the ery in New South Wales. I have spoken in Commonwealth government has increased this place previously about the report and the its contribution significantly by 73 per cent inquiry that was chaired by Dr Brian per capita from 1998 to 2000. New South Pezzutti, and its focus on the need for revolu- Wales recorded a very low increase of only tionary changes in the approach to mental 18 per cent per capita for the same period. I health by the New South Wales government. spoke recently of how the state’s streets and New South Wales is on the bottom rung of prisons have become home for many of the the national ladder in terms of mental health mentally ill after the Richmond reforms services and well down by international turned them out of institutions in a grossly standards. Only 35 per cent of people with a underfunded attempt to integrate them into mental illness in New South Wales receive the community some 20 years ago. treatment. Most treatment—for 75 per cent The New South Wales government seems of those treated—is provided by general intent on snuffing out initiatives that might practitioners. Of those treated for anxiety and assist people who have a mental illness. For depression, 55 per cent do not receive effec- example, in July 1999 Bob Carr cautioned tive treatment. Because the New South Wales against the establishment of a national insti- government has cut after-hours mental health tute to tackle depression, which was sug- care, this is now being thrown back onto gested by the former Victorian Premier, Jeff voluntary organisations in the community, Kennett. Despite Mr Carr’s unwillingness to like Lifeline, and also the police are often

CHAMBER Wednesday, 18 June 2003 SENATE 11923 get behind such an initiative, a new national management of mental health disorders in a depression initiative has been established primary care setting; thirdly, access to psy- called beyondblue. With a brief to assist in chiatrist support to participate in case con- the education, treatment and management of ferencing; fourthly, focusing psychological depression, beyondblue is a unique national strategies; and, finally, access to allied health response by the federal government and aims services to enable general practitioners to to remove the stigma associated with depres- access focused psychological strategies from sion. Beyondblue also prioritises the preven- health care professionals. This component is tion of depression and improved manage- rolling out through 16 pilot programs in ment by general practitioners. This is provid- 2002-03. A recent report by the Mental ing effective services, as a community sur- Health Council of Australia titled Out of vey in 2001 showed that almost 80 per cent hospital, out of mind has recognised the new of GPs recognise beyondblue. pressures on the mental health system that Last year, after three years of arguing will emerge, making the recent government against the concept, Bob Carr announced the initiatives that I have just described even establishment of a scientific institute to more important. tackle depression. The Black Dog Institute The impact on families and young chil- has since been set up on the campus of the dren of continued drought and ongoing Prince of Wales Hospital in Randwick. That threats of domestic and international terror- term, of course, came from Winston Chur- ism are already having a negative effect on chill, who talked about ‘the black dog of de- mental health in this country. To Bob Carr, I pression’ that used to follow him. In recogni- say that mental health issues are beginning to tion of that famous man’s difficulties and his rate higher on people’s priorities when it dealing with depression, that is the name of comes to important election issues, particu- the institute. But it came after Bob Carr cau- larly in the light of these recent studies. tioned against the establishment of a national There is a growing awareness in this country institute to tackle depression, saying that it of the need to tackle and put more resources would have too narrow a focus. That is rather into mental health care. With the amount of surprising, given the extent of depression as people who have indicated that they have a form of mental illness in this country. De- suffered depression, it can no longer be spite Bob Carr’s scepticism, the Black Dog treated as a secondary issue. It is important Institute has achieved enormous successes that the state government not only fund the since it opened in February last year. It facili- basic mental health services but also support tates a range of programs into mental health mental health promotion and disease preven- care, it fosters research and it does a lot to tion campaigns. A genuine commitment from educate and assist on mental illness issues. state governments is needed to achieve the While Bob Carr’s Labor government re- required level of quality for mental health luctantly engages in mental health care ini- care in Australia, particularly in the state that tiatives in New South Wales, the federal is really lagging—New South Wales. government has implemented a Better Out- Immigration: Asylum Seekers comes in Mental Health Care initiative. The Senator CROSSIN (Northern Territory) initiative has five major components. They (7.06 p.m.)—I rise this evening to lay again include: firstly, education and training for before this chamber arguments in support of general practitioners in mental health care; the East Timorese asylum seekers in our secondly, providing a framework for the

CHAMBER 11924 SENATE Wednesday, 18 June 2003 country who are continuing their campaign those of us in opposition have been doing on for permanent residency. behalf of these people. Senator McGauran—It is resolved. This week in the Northern Territory News Senator CROSSIN—I do so on the basis we have had the unfortunate episode of the that we need to recognise that a number of federal member for Solomon, Mr David people, both in the Northern Territory and in Tollner, and Senator Nigel Scullion using the Victoria, have actively supported the plight letters to the editor section to try to defend of these people and to respond to a number the fact that they have been publicly silent on of false claims, Senator McGauran, that it the plight of the East Timorese. Time and has been resolved. People should not rest on time again, they have not issued a word pub- their laurels until we are able to celebrate all licly—we have not heard a peep—through of the East Timorese asylum seekers seeking the media in support of the applications of permanent residency having that granted. Let these people. In fact, their letters are quite us have a look at where we are at with this inaccurate. Let us take Senator Scullion’s campaign. In the House of Representatives letter. He says: on 3 June, in response to a question from Mr Right from the start the Federal Minister made it Georgiou, the Minister for Immigration and perfectly clear that the existing immigration pol- Multicultural and Indigenous Affairs, Mr icy and procedure was well-equipped to process Ruddock, outlined the number of East Timor these claims. applications and where they were at. Han- At this stage we have seen fewer than 300 sard tells us that the minister said: granted permanent residency. In fact, this As at 27 May, some 1,617 applications had been week the minister even acknowledged that refused; another 203 applicants had been granted the visa system was out of control and another type of visa, had departed from Australia needed to be revised. We have called time or had withdrawn from the process; and 80 East and time again for this government to recog- Timorese were still awaiting a primary decision. nise that the system is not working for the Mr Ruddock continued: 1,600 East Timorese applicants and that they As at 27 May, 1,000 East Timorese have been should have been granted a special visa in before the Refugee Review Tribunal or are within order to bring some closure and give them the review application window. Some 590 have some security for the future. Senator Scullion received decisions affirming the primary decision. goes on—reluctantly, of course—to say: He went on to say: Mr Snowdon may not have sought a meeting with ... generally on behalf of some 379 people I have the Minister, but I certainly sought a meeting with stated a preparedness, subject to character and the Minister and had that meeting. Can I say that I health issues being resolved satisfactorily, to in- am still waiting on the outcome on some of that tervene. information that was provided to me at that meeting and a guarantee that some particular catego- He has not said that he will intervene, he has ries of those people would be looked at favoura- not said that that will definitely be the out- bly—that is, pensioners and children—and that come; he has simply stated a preparedness to numbers would be given to me as to how many do so. I might add that on that day in that pensioners and children are affected by this deci- answer to that question the minister also said sion, information I am still waiting for. that ‘the preponderance of representations David Tollner goes on to explain, quite in- have been by members of the opposition’. So correctly, the position in relation to the pro- he publicly acknowledged the work that posed amendment the Labor Party were

CHAMBER Wednesday, 18 June 2003 SENATE 11925 planning to the Migration Act—a bill which may take many more months—up till Octo- we have not seen here in the Senate. We said ber—to finish. The biggest issue is that while that we would seek to amend that bill when it all of this is going on—for all of the time the came into the Senate to include the granting minister is saying that he is prepared to look of a special visa for these people. The Labor at this rather than that he will look at it—we Party have not had a chance to do that in the know that 50 of the East Timorese people in Senate because that bill has not been tabled the Northern Territory have been stripped of in the Senate. Naturally, our amendment was their asylum seeker assistance support. This not carried in the House of Representatives. gives these people access to financial and Mr Tollner knows so little about this proc- medical assistance. ess that he would not understand that that is So, Senator McGauran, it is not all over; it the way legislation works in the federal par- has not been finalised. There are 50 East liament. Knowing full well that we were go- Timorese people in the Northern Territory ing to do that—publicly champing at the bit still jumping hurdles and relying on the that that was what we were going to do on goodwill of the community and on charities behalf of these people—not once did Mr to feed them, to ensure they have shelter and Tollner or Senator Scullion issue any sort of clothing and to provide for their medical as- press release or make any statement in a sistance. This has been a disgusting and out- house of this parliament saying that, despite rageous performance by this government in what their government did or did not do, they the way it has treated these 1,600 East would support our amendment. Never did Timorese people. The day they do get per- they utter one word publicly in support of manent residency, let us hope that this gov- any amendment that we had proposed to put ernment does not beat its chest and say, forward to grant these people a special hu- ‘Look at all we have done for these people,’ manitarian visa. Their silence on this—both because the way it has treated these people in in representing these people publicly at ral- the last couple of months, if not years, has lies, at forums and through the media, the NT been nothing less than shameful. newspapers and television—has been deaf- Let me turn to perhaps some positive ening. No wonder people are wondering ex- news on the flip side of this. There have been actly what stance these two people take to many people working day in, day out to ac- the plight of the East Timorese. tually ensure that the plight of these people is We know that at this point in time 56 of brought to the attention of the Australian the 84 applicants in the Northern Territory public. In the Northern Territory we have the have received letters from the minister. We Multicultural Council through Beryl Mulder. know that those letters are only an indication We have people like Anja Behlmer and Jona- that they still need to pass a further health than Kneebone who have worked incredibly and character check. This is not the final hur- hard to represent these people through Legal dle; this is one of many more hurdles that Aid. Kate Stockdale and all those people these people still have to undergo before they such as Markus Mannheim from Warren may—if the minister is prepared to—be Snowdon’s office and Alison Boardman from granted permanent residency. The minister my office have met week in, week out pursu- has said he is prepared to intervene, but there ing this cause. is a big difference between saying that you In Victoria, Carol Harris, associated with are prepared to do something and saying that St Brendan’s Church in Flemington, organ- you will do something. We know this process

CHAMBER 11926 SENATE Wednesday, 18 June 2003 ised a variety concert in support of the East pany, Gunns, would possibly be on the Timorese on 18 May 2002—a concert that I state’s agenda as a result of a meeting be- had the pleasure of attending. Steve Sabato tween Mr John Gay and Deputy Premier was the MC for that day and gave up his Lennon. This would be a fantastic prospect time. A whole lot of entertainers from a wide for my home state, especially as Gunns variety of areas, particularly from Opera chairman, Mr John Gay, is committed to the Australia, were prepared to give up their day non-chlorine process. There are two pro- and their time on that afternoon. Don Lucas, posed sites: the back of Hampshire on the a lawyer with Victoria Legal Aid, like Jona- north-west coast and Bell Bay on the banks than Kneebone, has worked hard for these of the Tamar River. I sincerely hope that, if people. So when these people are finally this is in the pipeline, the incentive gets the granted permanent residency—and let us necessary support from all levels of govern- hope they are—some of us in the community ment to see the project fulfilled. can rest assured knowing that we have done You may recall that, in 1989, a world- as much as we possibly could to ensure that scale bleached hardwood kraft mill was pro- these people have a long, secure and safe posed for Wesley Vale in the north west of future in this country. Tasmania. This proposed mill would have Tasmania: Pulp Milling been Australia’s first world-scale mill, with a Senator WATSON (Tasmania) (7.16 440,000 tonne per year capacity, and would p.m.)—Back in 1995 Mr David Salt pro- have utilised cleaner production techniques. duced an article entitled ‘Solving problems However, there was enormous community with pulp’. In that article, he said: concern about the environmental impact that such a mill would have and eventually the Australia earns around $370 million a year from exporting woodchips. That sounds like a lot, but project was suspended. Some people were of it’s insignificant next to the $1.3 billion we pay the opinion that Australia, and Tasmania in each year importing pulp, paper and paper prod- particular, had lost a golden opportunity. ucts, which are largely produced by woodchips. More recently, a Taiwanese company pro- The Australian Paper Industry Council re- posed a similar initiative, but that too was ports that domestic consumption of pulp and abandoned. Irrespective of what might de- paper products for the 2001-02 financial year velop in Tasmania or elsewhere, further in- was 3,639,000 tonnes. However, during that creases are highly desirable in our plantation same financial year, Australia imported establishment rate, especially for eucalypts. 315,000 tonnes of wood pulp, which is The aim of pulping is to separate the wood nearly 30 per cent of the amount of Austra- fibres into a form suitable for their reassem- lian virgin fibre pulp produced for the same bly in a structured way in the paper sheet. year. The question is: why are we not utilis- Much pulp is used in its unbleached form, ing our local industry and resources to pro- particularly for packaging, industrial papers, duce that 315,000 tonnes of pulp here in tissues and newsprint. A significant quantity Australia? of the pulp requires bleaching to meet these Hopefully, an article in Tasmania’s Mer- requirements. Bleaching is primarily under- cury newspaper this morning will answer taken for two reasons: to increase brightness that question. It was reported in the Mercury and to remove the residual lignin. Chemical today that a future pulp mill in Tasmania, pulping with chlorine bleaching is used when proposed by Australia’s largest forest com- a durable, high-brightness product with a more permanent application is required.

CHAMBER Wednesday, 18 June 2003 SENATE 11927

The Wesley Vale mill in Tasmania would velopment of a world-scale mill in the past, have used the chlorine bleaching process, but such as at Wesley Vale in 1989, have now the community became increasingly con- been cleared. cerned about the discharge of man-made or- However, community groups have some ganochlorines into the environment and concerns about the use of Australia’s forest therefore the impact on the surroundings. resource. I think this can be overcome as a The government actually contributed $7.7 result of what is happening in the forestry million over a five-year period, on a dollar- industry. The New South Wales Premier, Bob for-dollar basis with the state governments, Carr, unfortunately continues to lock up to industry research into chlorine bleaching massive areas of forest from harvesting as a and its effects. Following the suspension of result of pressure from the environmental the Wesley Vale project, the federal govern- lobby. But the best protection for forests is to ment introduced environmental guidelines, harvest and encourage new growth in the based on an intensive study of mills in the remaining areas to avoid the increasing fuels Northern Hemisphere, for all future bleached for lethal fires. In young forests there is eucalypt kraft mills in Australia. These greater humidity and more moisture while guidelines were amongst the strictest in the the trees are still growing. Young forest world. growth can check and slow down wildfires. Fortunately, times have changed, and en- Studies of films by Bunnings in Western vironmental protection usually goes hand-in- Australia show a bushfire racing across hand with economic development. Greater grasslands and once inside the forest bound- environmental awareness has encouraged a ary the moist growth of the trees checking fundamental change in attitudes in the com- the rapid spread of the fire. munity, government and industry, which has Mr Jim Gould of the CSIRO tells of a led to new technologies being introduced study on plantations which demonstrated that with much cleaner production methods. a fire that raged through native vegetation Thanks to the Commonwealth government’s and grasslands in Western Australia on a day initiation of the National Pulp Mills Re- of severe risk in 2000 became much less in- search Program, which came to a close in tense when it entered a three-year-old blue 1995, we discovered that kraft pulping could gum plantation. As the CSIRO will testify, use eucalypt woodchip and produce high- the older a forest gets the more the fuel load quality pulp without harmful effluent effects. increases for a possible bushfire to ravage. In more recent exciting developments, Up to four years after planting, the fuel load CSIRO research has demonstrated that kraft of a forest equates to up to four tonnes per pulps from eucalypt wood can now be hectare; seven years or more after planting, bleached to a high level of brightness using the figure increases to eight tonnes per hec- ozone instead of chlorine gas or chlorine tare. dioxide. The results suggest that ozone If the mooted pulp mill in Tasmania be- bleaching, now utilised extensively in Scan- comes a tangible reality, it is vital that the dinavian pulp mills, may be an available op- Tasmanian community at all levels accepts tion in any new mills established in Austra- the golden opportunity that arrives before lia, such as the one that may be proposed for them. We need to ensure woodchip process- Tasmania in the near future. This is certainly ing occurs in Tasmania to help recover from good news for Tasmania. So I believe that the closure of the Burnie pulp mill and the the specific obstacles that prevented the de-

CHAMBER 11928 SENATE Wednesday, 18 June 2003 abandonment of the Wesley Vale project on should be freed or face trial, as is their right two separate occasions. Tasmania’s economy under both international and Australian law. would certainly be thankful for the growth, However, this government still refuses to act and the unemployment figure would also and instead stands back whilst it watches the appreciate the trimming. I urge all Tasmani- United States military hold our citizens in ans to support this new pulp mill initiative. indefinite detention. The Australian govern- With new environmentally friendly process- ment is content to see a fundamental right ing techniques and the utilisation of planta- afforded to all Australian citizens, the right to tion timbers to ensure sustainability, it is a the presumption of innocence until proven project that clears all the previous hurdles guilty, flouted. As I have argued in the Sen- and would be a wonderful addition to Tas- ate previously, it is not my intention to prove manian industry. the guilt, innocence or otherwise of the two Military Detention: Australian Citizens men. It is merely that I and all fair-minded Australians demand that the men be treated Senator MARSHALL (Victoria) (7.25 as human beings and be afforded the same p.m.)—I rise this evening to speak about an fundamental rights granted to all other Aus- issue I have raised previously in the Senate. tralians. In fact it was an issue central to the first adjournment speech I made in this chamber A United States district court ruled last back in September last year. It is certainly a year that no US court had the jurisdiction to concerning situation to me, and I am sure to hear an appeal against the detention of the many other Australians, that I need even detainees held in Guantanamo Bay. Judge raise this issue again in the Senate, 10 Colleen Kollar-Kotelly said in her ruling that months after I first did. The issue I have risen the Australian government could pursue the to speak about this evening concerns two rights Mr Hicks would have under interna- Australians, Mr David Hicks and Mr Mam- tional law if it chose to. As we know, the douh Habib, who both have been for some Australian government is far from willing to time, and remain, in detention in the US do this and, as such, the two men remain military base Camp Delta, in Guantanamo stripped of all rights and dignity and remain Bay, Cuba. The men, without charge or trial, held in their two-metre wide by just over have been held in arbitrary detention, for 19 two-metre long cages with no access to law- months in the case of Mr Hicks and for 13 yers, family or Australian consular officials, months in the case of Mr Habib. Still to this other than those conducting investigations date neither has been charged with any of- against them. fence under international, Australian or US It is a disgusting human rights situation law. and one that sets an awful precedent in what There have been numerous actions taken is an acceptable practice in holding prisoners by members of this house and the other place of war. The term ‘prisoner of war’ itself is over this issue, including numerous speeches one that is not even afforded to the detainees given, many questions placed on notice, peti- held in Guantanamo Bay, let alone the rights tions lodged and even a motion passed in this that go along with such a categorisation. house calling on the government, as a matter They have been classed as unlawful combat- of urgency, to take whatever steps are re- ants. Countless international humanitarian quired to return both Mr Hicks and Mr Habib organisations, including Amnesty Interna- to Australia to determine whether they tional, have argued that the US has violated many international laws by the way in which

CHAMBER Wednesday, 18 June 2003 SENATE 11929 it has treated these people captured during they die. These questions need to be ad- the war in Afghanistan. dressed as a matter of important principle. While international organisations around It is worth noting the conditions Mr Habib the world have raised significant concerns, and Mr Hicks have been subject to for the Australia’s Minister for Foreign Affairs, Mr past 13 and 19 months respectively, and con- Downer, has demonstrated a total lack of tinue to be subject to whilst detained in responsibility in undertaking to provide the Guantanamo Bay among the other more than two Australian citizens incarcerated overseas 650 confirmed men and boys being held adequate diplomatic assistance and he has there by the US military. In response to the shown a total lack of regard as to their fate. question on notice I asked Senator Hill, rep- As I have previously noted in the Senate, the resenting the Minister for Foreign Affairs, minister stated: about specifically under what conditions Mr ... people who muck about with organisations like Hicks and Mr Habib are being imprisoned, al-Qaeda are bound to get themselves into a great the minister provided the following answer: deal of trouble. The Government is satisfied that both Mr Hicks Trouble or not, Minister, their arbitrary de- and Mr Habib are being held in safe and humane tention is one of the most defined and out- conditions, and are being treated appropriately by lawed practices under international law. If US authorities. They are detained in an individ- Mr Hicks and Mr Habib are so known by the ual, air-conditioned cell with clean and appropriate bedding and washing facilities. They have minister for having committed terrorist access to medical examinations and treatment, crimes, then why will he not bring them back culturally appropriate meals, and are permitted to to Australia and have them face charges and observe religious practices. They are given fresh possible jail here and now? In fact, a recent towels and uniforms on request and permitted article in the New York Times reported that exercise and reading material. They are able to Australian officials were approached by the send and receive mail through the International Bush administration and asked to take cus- Committee of the Red Cross (ICRC). There is an tody of Mr Hicks and prosecute him. Why, if ICRC representative at the military base who has this is the case, has this not been done? access to the facility and the detainees, to independently assess their condition. Mr Hicks and Mr Habib are both Austra- ABC reporter Jill Colgan filed a story from lian citizens and should both face charges and about Guantanamo Bay for the ABC’s under Australian law or be released, as is Foreign Correspondent program which was their right. Any fair-minded Australian would aired on 13 May this year. It was a very in- agree with this point. This being said, it teresting piece. Colgan gained access, albeit seems highly unlikely that the federal gov- very limited access, to the confines of Camp ernment will commit to bringing these men Delta and she reported on what she actually home. The question then is: how long is it saw there and what she had been advised suspected the men will be held in detention about the facility by the military personnel for? Will it be until the war on terror is de- employed there. clared over? If so, when is that likely to be? There has been no talk of its end so far, so it She reported that inmates, as I mentioned is possible that these two Australian men before, are contained in wire cells—hardly could remain in detention, having never been airconditioned, as the minister suggested, charged with or tried for any offence, until except for the open airflow inevitable where there are no walls between cells. She reported that inmates are allowed 20 minutes

CHAMBER 11930 SENATE Wednesday, 18 June 2003 of exercise twice a week and that floodlights I again remind the government of the mo- are used throughout the facility on a 24- tion passed in the Senate on 6 March this hours-a-day basis. Colgan reported that 17 year regarding this issue and I urge it to act people are confirmed to have attempted sui- as demanded by the Senate. Mr Hicks and cide during their detention in Camp Delta Mr Habib ought to be brought home, charged and that some of these people had attempted with an offence if there is evidence to do so, to do so on more than one occasion. She and they must be tried in front of a court of noted that when this occurs the families of law, as is their right. those concerned are not advised of this hap- Senate adjourned at 7.34 p.m. pening. DOCUMENTS As I have just mentioned, the minister in Tabling his answer to my question on notice stated that the International Committee of the Red The following government documents Cross is the agency used to administer mail were tabled: in and out of the facility. In an interview Australian National University—Report conducted by Colgan with Mr Hicks’s par- for 2002. ents back in Australia, it was noted that no Australian Radiation Protection and mail had reached Mr Hicks since December Nuclear Safety Agency—Quarterly report last year, as all of the mail that his family had for the period 1 October to 31 December sent was returned to them unopened. Mail is 2002. the only means of contact Mr Hicks has with Australian River Co. Limited—Report for his parents. Colgan reported that, in a deal 1 December 2001 to 30 November 2002. struck with the Red Cross guaranteeing it Gene Technology Regulator—Quarterly ongoing access to prisoners around the report for the period 1 October to world, it would agree to report only what it 31 December 2002. finds to the authorities running the facility. Tabling Colgan argues the Red Cross is ‘effectively The following documents were tabled by gagged’. the Clerk: If the assertions made by the report on Australian Bureau of Statistics Act— Foreign Correspondent are true, then they Proposals Nos 8 and 9 of 2003. raise some serious questions that need to be Environment Protection and Biodiversity addressed by the minister and the Australian Conservation Act—Instrument amending government, among others. The Australian list of threatened species under section government has a responsibility to Austra- 178, dated 28 May 2003. lians overseas. For a government that argues Social Security Act—Social Security so strongly about following the rule of law (Declaration of Visa in a class of Visas— when it comes to domestic issues such as Qualifying Residence Exemption) workplace relations, it is a disgrace that it Determination 2003. shirks its obligation to do so on the international stage and in its diplomatic responsibilities to fellow Australians.

CHAMBER Wednesday, 18 June 2003 SENATE 11931

QUESTIONS ON NOTICE The following answers to questions were circulated: Taxation: Goods and Services (Question No. 829) Senator Sherry asked the Minister for Revenue and Assistant Treasurer, upon notice, on 30 October 2002: (1) Can the Minister confirm that electricity is classified as a good or service for the purposes of the goods and services tax. (2) Can the Minister also confirm that, for the purposes of determining liability for damage to a consumer’s electrical goods due to load shedding by an electricity supplier’s power, there is a dispute over whether the supply of electricity is a good or service (see Electricity Supply Association of Australia Ltd v ACCC [2001] FCA1296, 12 September 2001) and that this dispute has hitherto allowed suppliers to avoid liability for damage. (3) Can the Minister explain how these two positions are consistent; if not, what step is the Govern- ment taking to address this apparent inconsistency. Senator Coonan—The answer to the honourable senator’s question is as follows: (1) The A New Tax System (Goods and Services Tax) Act 1999 has a very broad definition of supply. Section 9-10 of the Act states that ‘a supply is any form of supply whatsoever’. Accordingly, it is not necessary to classify the supply of electricity as a supply of a good or service, for the purposes of the GST. (2) Section 4 of the Trade Practices Act 1974 defines ‘goods’ to include ‘gas and electricity’ for the Act’s purposes ‘unless contrary intention appears’. Part V of the Act in effect provides for consumers to seek compensation if a ‘good’ is not of ‘merchantable quality’ and ‘fit for purpose’. Whether a person is liable for damage to electrical equipment can only be determined on the facts of each specific case. (3) There is no apparent inconsistency between the two positions. Defence: Fisheries Management (Question No. 1237) Senator O’Brien asked the Minister for Defence, upon notice, on 27 February 2003: Can details of the department’s expenditure on fisheries management and/or enforcement be provided, for each of the following financial years: (a) 2000-01; (b) 2001-02; and (c) 2002-03 to date. Senator Hill—The answer to the honourable senator’s question is as follows: Routine fisheries management is not accounted for separately within the Civil Surveillance Program. In addition to routine Australian Defence Force (ADF) support to the Civil Surveillance Program, specific operations were undertaken during financial years 2000-01 and 2001-02 in response to particular inci- dents. The net additional costs of those operations are shown below: (a) $417,553. (b) $1,226,430 (c) Nil. (Previous responses to Senate Questions on Notice No. 491 and No. 732 stated that activities conducted to date had been accommodated within the ADF’s overall programmed rate of effort and so expenditure was not recorded separately. However, subsequent investigations have identified the net additional costs for these operations which were absorbed within the Defence budget without supplementation).

QUESTIONS ON NOTICE 11932 SENATE Wednesday, 18 June 2003

Education: School Bus Services (Question No. 1413) Senator Allison asked the Minister representing the Prime Minister, upon notice, on 28 April 2003: With reference to families living in Picola, Victoria, who wish to send their children to school in Echuca but who, because the most direct bus route to Echuca traverses New South Wales, are not entitled to the discounted fares available to students in Victoria through the Victorian State Government’s school bus services: (1) Has the Government considered making provision for the Country Areas Program funding to be used by schools to replace subsidies not paid to families to help them transport their children to school because of state border issues like the case of families living in Picola. (2) Has this matter, or any matter like this, been referred to the Cross Borders Anomalies Committee: if so, what transpired; if not, why not. Senator Hill—The Prime Minister has provided the following answer to the honourable senator’s question: (1) The Commonwealth contributes significant support for educational achievements, opportunities and choice available to students disadvantaged by geographic isolation so that their learning outcomes match those of other students. I am advised that in 2001-04, the Commonwealth’s Country Areas Programme (CAP) will provide an additional $21.08 million annually to government and non-government education authorities. These funds will assist schools to provide quality education to students in rural and geographically isolated areas and fund activities that support and enrich the curriculum and learning experiences. For example, CAP funds are used to supplement the cost of travel in relation to school excursions or to enable students go to career shows or participate in vocational education work placements. I am also advised that State and Northern Territory education authorities decide the priority areas and how CAP funds are allocated in their jurisdictions in accordance with the Commonwealth CAP Guidelines. CAP funds are paid to schools not individuals and cannot be used to pay for ongoing bus travel costs for individual students to attend school on a daily basis. (2) I am advised that the Commonwealth has not referred this matter, or any matter like this, to the New South Wales – Victorian Cross Borders Anomalies Committee. The Committee is, however, aware of this issue following receipt of correspondence from the honourable senator dated 5 February 2003. I understand that the Picola families involved have chosen to attend Echuca Secondary College instead of their nearest high school at Nathalia and therefore do not qualify for the free school bus travel through the Victorian State Government’s School Bus Services. Defence: USAF Global Hawk Program (Question No. 1432) Senator Chris Evans asked the Minister for Defence, upon notice, on 7 May 2003: In relation to the United States of America (US) Air Force Global Hawk Program, the US Department of Defense Selected Acquisition Report for the December 2002 quarter notes that the cost of the program has decreased by $US1,031.7 million (-15.1%) from $US6,846.6 million to $US5,814.9 million: Given that the cost of the US Global Hawk Program has decreased by such a significant amount, why did the answer to parts 10 and 11 of question on notice no. 1183 make the following claim, ‘The “cost blowouts” referred to in the article in the Australian relate to cost increases associated with the United States Air Force Global Hawk Program’.

QUESTIONS ON NOTICE Wednesday, 18 June 2003 SENATE 11933

Senator Hill—The answer to the honourable senator’s question is as follows: At the time the question was answered, the information available indicated that the USAF Global Hawk program costs had increased. The Selected Acquisition Report from the previous year (December 2001 quarter) indicates that the Global Hawk program costs had increased to $US6,846.6 million due to additional requirements being approved and an extension to the development program. Additionally, the report indicates that the USAF Acquisition Program had reduced the 2001 cost increase by a reduction in the planned number of aircraft to be purchased from 63 to 51. Since this time considerable work has been undertaken by the US to reduce costs. This has included both a reduction in the specified capability sought as well as a greater understanding within the US of the costs involved. Since this report, Defence has been working with both Northrop Grumman and the US to clarify the anticipated costs to Australia of this program. This work is not complete, and we are still determining the affordability of Global Hawk and its relative priority as part of the existing Defence Capability review. ComLand: Properties (Question No. 1434) Senator Chris Evans asked the Special Minister of State, upon notice, on 13 May 2003: (1) What former Defence property, including ex-ADI sites, does ComLand currently own; can a list be provided indicating the location (town/suburb, state/territory, postcode), size of the property, and nature of the property (vacant land, facilities). (2) Is it intended that any of these properties will be sold; if so: (a) which properties are to be sold; and (b) on what dates are the sales expected to occur. Senator Abetz—The answer to the honourable senator’s question is as follows: (1) ComLand currently owns two properties, both of which are former ADI sites: (a) a 95 hectare site (known as Edgewater) at Maribyrnong in Melbourne, Victoria (postcode 3032); and (b) a 1,545 hectare site at St Marys in western Sydney, New South Wales (postcode 2760). (2) Yes. Both sites are the subject of joint venture development agreements with Lend Lease Devel- opment Pty Limited. ComLand will dispose of the properties progressively as the developments are completed. Development of Edgewater is well advanced and sales of land from the first stages of the project have commenced. Edgewater is expected to be completed by 2006. The St Marys site has received overall planning approval. However, development has not yet commenced as the individual stages of the project are yet to be designed and/or approved. The project is expected to be completed by 2019. Consistent with Commonwealth undertakings to protect heritage values at the St Marys site, approximately 950 hectares will be preserved as parkland. Most of this land has been placed on the Register of the National Estate and will be transferred to the NSW National Parks and Wildlife Service for management as a Regional Park.

QUESTIONS ON NOTICE