Senate Official Hansard No

COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY DEBATES

Senate Official Hansard No. 3, 2004 THURSDAY, 9 DECEMBER 2004

FORTY-FIRST PARLIAMENT FIRST SESSION—FIRST PERIOD

BY AUTHORITY OF THE SENATE

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FORTY-FIRST PARLIAMENT FIRST SESSION—FIRST PERIOD

Governor-General

His Excellency Major-General Michael Jeffery, Companion in the Order of Australia, Com- mander of the Royal Victorian Order, Military Cross

Senate Officeholders

President—Senator the Hon. Paul Henry Calvert Deputy President and Chairman of Committees—Senator John Joseph Hogg Temporary Chairmen of Committees—Senators the Hon. Nick Bolkus, George Henry Bran- dis, Hedley Grant Pearson Chapman, John Clifford Cherry, Patricia Margaret Crossin, Alan Baird Ferguson, Stephen Patrick Hutchins, Linda Jean Kirk, Susan Christine Knowles, Philip Ross Lightfoot, John Alexander Lindsay (Sandy) Macdonald, Gavin Mark Marshall, Claire Mary Moore and John Odin Wentworth Watson Leader of the Government in the Senate—Senator the Hon. Robert Murray Hill Deputy Leader of the Government in the Senate—Senator the Hon. Nicholas Hugh Minchin Leader of the Opposition in the Senate—Senator Christopher Vaughan Evans Deputy Leader of the Opposition in the Senate—Senator Stephen Michael Conroy Manager of Government Business in the Senate—Senator the Hon. Christopher Mar- tin Ellison Manager of Opposition Business in the Senate—Senator Joseph William Ludwig

Senate Party Leaders

Leader of the Liberal Party of Australia—Senator the Hon. Robert Murray Hill Deputy Leader of the Liberal Party of Australia—Senator the Hon. Nicholas Hugh Minchin Leader of the National Party of Australia—Senator the Hon. Ronald Leslie Doyle Boswell Deputy Leader of the National Party of Australia—Senator John Alexander Lindsay (Sandy) Macdonald Leader of the Australian Labor Party—Senator Christopher Vaughan Evans Deputy Leader of the Australian Labor Party—Senator Stephen Michael Conroy Leader of the Australian Democrats—Senator Andrew John Julian Bartlett

Printed by authority of the Senate

Members of the Senate State or Terri- Senator tory Term expires Party Abetz, Hon. Eric Tas 30.6.2005 LP Allison, Lynette Fay Vic 30.6.2008 AD Barnett, Guy (5) Tas 30.6.2005 LP Bartlett, Andrew John Julian Qld 30.6.2008 AD Bishop, Thomas Mark WA 30.6.2008 ALP Bolkus, Hon. Nick SA 30.6.2005 ALP Boswell, Hon. Ronald Leslie Doyle Qld 30.6.2008 NATS Brandis, George Henry (2) Qld 30.6.2005 LP Brown, Robert James Tas 30.6.2008 AG Buckland, Geoffrey Frederick (4) SA 30.6.2005 ALP Calvert, Hon. Paul Henry Tas 30.6.2008 LP Campbell, George NSW 30.6.2008 ALP Campbell, Hon. Ian Gordon WA 30.6.2005 LP Carr, Kim John Vic 30.6.2005 ALP Chapman, Hedley Grant Pearson SA 30.6.2008 LP Cherry, John Clifford (3) Qld 30.6.2005 AD Colbeck, Richard Mansell Tas 30.6.2008 LP Collins, Jacinta Mary Ann Vic 30.6.2005 ALP Conroy, Stephen Michael Vic 30.6.2005 ALP Cook, Hon. Peter Francis Salmon WA 30.6.2005 ALP Coonan, Hon. Helen Lloyd NSW 30.6.2008 LP Crossin, Patricia Margaret (1) NT ALP Denman, Kay Janet Tas 30.6.2005 ALP Eggleston, Alan WA 30.6.2008 LP Ellison, Hon. Christopher Martin WA 30.6.2005 LP Evans, Christopher Vaughan WA 30.6.2005 ALP Faulkner, Hon. John Philip NSW 30.6.2005 ALP Ferguson, Alan Baird SA 30.6.2005 LP Ferris, Jeannie Margaret SA 30.6.2008 LP Fifield, Mitchell Peter(7) Vic 30.6.2008 LP Forshaw, Michael George NSW 30.6.2005 ALP Greig, Brian Andrew WA 30.6.2005 AD Harradine, Brian Tas 30.6.2005 Ind Harris, Leonard William QLD 30.6.2005 PHON Heffernan, Hon. William Daniel NSW 30.6.2005 LP Hill, Hon. Robert Murray SA 30.6.2008 LP Hogg, John Joseph QLD 30.6.2008 ALP Humphries, Gary John Joseph (1) ACT LP Hutchins, Stephen Patrick NSW 30.6.2005 ALP Johnston, David Albert Lloyd WA 30.6.2008 LP Kemp, Hon. Charles Roderick VIC 30.6.2008 LP Kirk, Linda Jean SA 30.6.2008 ALP Knowles, Susan Christine WA 30.6.2005 LP Lees, Meg Heather SA 30.6.2005 APA Lightfoot, Philip Ross WA 30.6.2008 LP Ludwig, Joseph William QLD 30.6.2005 ALP Lundy, Kate Alexandra (1) ACT ALP Macdonald, Hon. Ian Douglas QLD 30.6.2008 LP ii

State or Terri- Senator tory Term expires Party Macdonald, John Alexander Lindsay (Sandy) NSW 30.6.2008 NATS McGauran, Julian John James VIC 30.6.2005 NATS Mackay, Susan Mary TAS 30.6.2008 ALP McLucas, Jan Elizabeth QLD 30.6.2005 ALP Marshall, Gavin Mark VIC 30.6.2008 ALP Mason, Brett John QLD 30.6.2005 LP Minchin, Hon. Nicholas Hugh SA 30.6.2005 LP Moore, Claire Mary QLD 30.6.2008 ALP Murphy, Shayne Michael TAS 30.6.2005 Ind Murray, Andrew James Marshall WA 30.6.2008 AD Nettle, Kerry Michelle NSW 30.6.2008 AG O’Brien, Kerry Williams Kelso TAS 30.6.2005 ALP Patterson, Hon. Kay Christine Lesley VIC 30.6.2008 LP Payne, Marise Ann NSW 30.6.2008 LP Ray, Hon. Robert Francis VIC 30.6.2008 ALP Ridgeway, Aden Derek NSW 30.6.2005 AD Santoro, Santo (6) QLD 30.6.2008 LP Scullion, Nigel Gregory (1) NT CLP Sherry, Hon. Nicholas John TAS 30.6.2008 ALP Stephens, Ursula Mary NSW 30.6.2008 ALP Stott Despoja, Natasha Jessica SA 30.6.2008 AD Tchen, Tsebin VIC 30.6.2005 LP Tierney, John William NSW 30.6.2005 LP Troeth, Hon. Judith Mary VIC 30.6.2005 LP Vanstone, Hon. Amanda Eloise SA 30.6.2005 LP Watson, John Odin Wentworth TAS 30.6.2008 LP Webber, Ruth Stephanie WA 30.6.2008 ALP Wong, Penelope Ying Yen SA 30.6.2008 ALP (1) Term expires at close of day next preceding the polling day for the general election of members of the House of Representatives. (2) Chosen by the Parliament of Queensland to fill a casual vacancy vice Hon. Warwick Raymond Parer, resigned. (3) Chosen by the Parliament of Queensland to fill a casual vacancy vice John Woodley, resigned. (4) Chosen by the Parliament of South Australia to fill a casual vacancy vice John Andrew Quirke, resigned. (5) Appointed by the Governor of Tasmania to fill a casual vacancy vice Hon. Brian Francis Gibson AM, resigned. (6) Chosen by the Parliament of Queensland to fill a casual vacancy vice Hon. John Joseph Herron, resigned. (7) Chosen by the Parliament of Victoria to fill a casual vacancy vice Hon. Richard Kenneth Robert Alston, resigned. PARTY ABBREVIATIONS AD—Australian Democrats; AG—Australian Greens; ALP—Australian Labor Party; APA—Australian Progressive Alliance; CLP—Country Labor Party; Ind—Independent; LP—Liberal Party of Australia; NATS—The Nationals; PHON—Pauline Hanson’s One Nation Heads of Parliamentary Departments Clerk of the Senate—H. Evans Clerk of the House of Representatives—I.C. Harris Secretary, Department of Parliamentary Services—H.R. Penfold QC

iii

HOWARD MINISTRY

Prime Minister The Hon. John Winston Howard MP Minister for Transport and Regional Services and The Hon. John Duncan Anderson MP Deputy Prime Minister Treasurer The Hon. Peter Howard Costello MP Minister for Trade The Hon. Mark Anthony James Vaile MP Minister for Defence and Leader of the Govern- Senator the Hon. Robert Murray Hill ment in the Senate Minister for Foreign Affairs The Hon. Alexander John Gosse Downer MP Minister for Health and Ageing and Leader of the The Hon. Anthony John Abbott MP House Attorney-General The Hon. Philip Maxwell Ruddock MP Minister for Finance and Administration, Deputy Senator the Hon. Nicholas Hugh Minchin Leader of the Government in the Senate and Vice-President of the Executive Council Minister for Agriculture, Fisheries and Forestry The Hon. Warren Errol Truss MP Minister for Immigration and Multicultural and Senator the Hon. Amanda Eloise Vanstone Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs Minister for Education, Science and Training The Hon. Dr Brendan John Nelson MP Minister for Family and Community Services and Senator the Hon. Kay Christine Lesley Patterson Minister Assisting the Prime Minister for Women’s Issues Minister for Industry, Tourism and Resources The Hon. Ian Elgin Macfarlane MP Minister for Employment and Workplace Rela- The Hon. Kevin James Andrews MP tions and Minister Assisting the Prime Minister for the Public Service Minister for Communications, Information Tech- Senator the Hon. Helen Lloyd Coonan nology and the Arts Minister for the Environment and Heritage Senator the Hon. Ian Gordon Campbell

(The above ministers constitute the cabinet)

HOWARD MINISTRY—continued

Minister for Justice and Customs and Manager of Senator the Hon. Christopher Martin Ellison Government Busines in the Senate Minister for Fisheries, Forestry and Conservation Senator the Hon. Ian Douglas Macdonald Minister for the Arts and Sport Senator the Hon. Charles Roderick Kemp Minister for Human Services The Hon. Joseph Benedict Hockey MP Minister for Citizenship and Multicultural Affairs The Hon. Peter John McGauran MP and Deputy Leader of the House Minister for Revenue and Assistant Treasurer The Hon. Malcolm Thomas Brough MP Special Minister of State Senator the Hon. Eric Abetz Minister for Vocational and Technical Education The Hon. Gary Douglas Hardgrave MP and Minister Assisting the Prime Minister Minister for Ageing The Hon. Julie Isabel Bishop MP Minister for Small Business and Tourism The Hon. Frances Esther Bailey MP Minister for Local Government, Territories and The Hon. James Eric Lloyd MP Roads Minister for Veterans’ Affairs and Minister As- The Hon. De-Anne Margaret Kelly MP sisting the Minister for Defence Minister for Workforce Participation The Hon. Peter Craig Dutton MP Parliamentary Secretary to the Minister for Fi- The Hon. Dr Sharman Nancy Stone MP nance and Administration Parliamentary Secretary to the Minister for Indus- The Hon. Warren George Entsch MP try, Tourism and Resources Parliamentary Secretary to the Minister for Health The Hon. Christopher Maurice Pyne MP and Ageing Parliamentary Secretary to the Minister for De- The Hon. Teresa Gambaro MP fence Parliamentary Secretary (Foreign Affairs and The Hon. Bruce Fredrick Billson MP Trade) Parliamentary Secretary to the Prime Minister The Hon. Gary Roy Nairn MP Parliamentary Secretary to the Treasurer The Hon. Christopher John Pearce MP Parliamentary Secretary to the Minister for Trans- The Hon. John Kenneth Cobb MP port and Regional Services Parliamentary Secretary to the Minister for the The Hon. Gregory Andrew Hunt MP Environment and Heritage Parliamentary Secretary (Children and Youth Af- The Hon. Sussan Penelope Ley MP fairs) Parliamentary Secretary to the Minister for Educa- The Hon. Patrick Francis Farmer MP tion, Science and Training Parliamentary Secretary to the Minister for Agri- Senator the Hon. Richard Mansell Colbeck culture, Fisheries and Forestry

SHADOW MINISTRY

Leader of the Opposition Mark William Latham MP Deputy Leader of the Opposition and Shadow Jennifer Louise Macklin MP Minister for Education, Training, Science and Research Leader of the Opposition in the Senate and Senator Christopher Vaughan Evans Shadow Minister for Social Security Deputy Leader of the Opposition in the Senate and Senator Stephen Michael Conroy Shadow Minister for Communications and In- formation Technology Shadow Minister for Health and Manager of Op- Julia Eileen Gillard MP position Business in the House Shadow Treasurer Wayne Maxwell Swan MP Shadow Minister for Industry, Infrastructure and Stephen Francis Smith MP Industrial Relations Shadow Minister for Foreign Affairs and Interna- Kevin Michael Rudd MP tional Security Shadow Minister for Defence and Homeland Se- Robert Bruce McClelland MP curity Shadow Minister for Trade The Hon. Simon Findlay Crean MP Shadow Minister for Primary Industries, Re- Martin John Ferguson MP sources and Tourism Shadow Minister for Environment and Heritage Anthony Norman Albanese MP and Deputy Manager of Opposition Business in the House Shadow Minister for Public Administration and Senator Kim John Carr Open Government, Shadow Minister for Indige- nous Affairs and Reconciliation and Shadow Minister for the Arts Shadow Minister for Regional Development and Kelvin John Thomson MP Roads and Shadow Minister for Housing and Urban Development Shadow Minister for Finance and Superannuation Senator the Hon. Nicholas John Sherry Shadow Minister for Work, Family and Commu- Tanya Joan Plibersek MP nity, Shadow Minister for Youth and Early Childhood Education and Shadow Minister As- sisting the Leader on the Status of Women Shadow Minister for Employment and Workplace Senator Penelope Ying Yen Wong Participation and Shadow Minister for Corporate Governance and Responsibility

(The above are shadow cabinet ministers)

SHADOW MINISTRY—continued Shadow Minister for Immigration Laurence Donald Thomas Ferguson MP Shadow Minister for Agriculture and Fisheries Gavan Michael O’Connor MP Shadow Assistant Treasurer, Shadow Minister for Joel Andrew Fitzgibbon MP Revenue and Shadow Minister for Banking and Financial Services Shadow Attorney-General Nicola Louise Roxon MP Shadow Minister for Regional Services, Local Senator Kerry Williams Kelso O’Brien Government and Territories Shadow Minister for Manufacturing and Shadow Senator Kate Alexandra Lundy Minister for Consumer Affairs Shadow Minister for Defence Planning and Per- The Hon. Archibald Ronald Bevis MP sonnel and Shadow Minister Assisting the Shadow Minister for Industrial Relations Shadow Minister for Sport and Recreation Alan Peter Griffin MP Shadow Minister for Veterans’ Affairs Senator Thomas Mark Bishop Shadow Minister for Small Business Tony Burke MP Shadow Minister for Ageing and Disabilities Senator Jan Elizabeth McLucas Shadow Minister for Justice and Customs, Senator Joseph William Ludwig Shadow Minister for Citizenship and Multicul- tural Affairs and Manager of Opposition Busi- ness in the Senate Shadow Minister for Pacific Islands Robert Charles Grant Sercombe MP Shadow Parliamentary Secretary to the Leader of John Paul Murphy MP the Opposition Shadow Parliamentary Secretary for Defence The Hon. Graham John Edwards MP Shadow Parliamentary Secretary for Education Kirsten Fiona Livermore MP Shadow Parliamentary Secretary for Environment Jennie George MP and Heritage Shadow Parliamentary Secretary for Infrastructure Bernard Fernando Ripoll MP Shadow Parliamentary Secretary for Health Ann Kathleen Corcoran MP Shadow Parliamentary Secretary for Regional Catherine Fiona King MP Development (House) Shadow Parliamentary Secretary for Regional Senator Ursula Mary Stephens Development (Senate) Shadow Parliamentary Secretary for Northern The Hon. Warren Edward Snowdon MP Australia and Indigenous Affairs

vii CONTENTS

THURSDAY, 9 DECEMBER

Chamber Petitions— Military Detention: Australian Citizens...... 1 Immigration: Asylum Seekers ...... 1 Notices— Withdrawal ...... 1 Presentation ...... 2 Business— Rearrangement...... 3 Notices— Presentation ...... 3 Committees— Legal and Constitutional References Committee—Reference ...... 3 Senate Voters’ Choice (Preference Allocation) Bill 2004— First Reading ...... 4 Second Reading...... 4 Environment: Tarkine Wilderness...... 5 Human Cloning...... 5 Superannuation Industry (Supervision) Amendment Regulations 2004 (No. 2)— Motion for Disallowance...... 6 Committees— Employment, Workplace Relations and Education Legislation Committee—Reference.....6 International Human Rights Day ...... 6 Foreign Affairs: East Timor ...... 8 Forestry: Management ...... 9 Education: University Funding...... 9 Committees— Rural and Regional Affairs and Transport Legislation Committee—Meeting ...... 10 Foreign Affairs: West Papua ...... 10 Business— Consideration of Legislation ...... 11 Rearrangement...... 11 Committees— Publications Committee—Report...... 12 Budget— Consideration by Legislation Committees—Additional Information ...... 12 Consideration by Legislation Committees—Additional Information ...... 13 Committees— Scrafton Evidence Committee—Report ...... 13 Business— Consideration of Legislation ...... 24 Higher Education Legislation Amendment Bill (No. 3) 2004— First Reading ...... 25 Second Reading...... 25 Australian Passports Bill 2004, Australian Passports (Application Fees) Bill 2004, and Australian Passports (Transitionals and Consequentials) Bill 2004— First Reading ...... 26

CONTENTS—continued

Second Reading...... 26 Tax Laws Amendment (Long-term Non-reviewable Contracts) Bill 2004— First Reading ...... 28 Second Reading...... 28 A New Tax System (Goods and Services Tax Imposition (Recipients)—General) Bill 2004, A New Tax System (Goods and Services Tax Imposition (Recipients)—Excise) Bill 2004, and A New Tax System (Goods and Services Tax Imposition (Recipients)—Customs) Bill 2004— First Reading ...... 29 Second Reading...... 29 Bills Returned from the House of Representatives...... 30 Superannuation Industry (Supervision) Amendment Regulations 2004 (No. 2)— Motion for Disallowance...... 30 James Hardie (Investigations and Proceedings) Bill 2004— Second Reading...... 38 Third Reading...... 47 Tax Laws Amendment (Retirement Villages) Bill 2004— Consideration of House of Representatives Message...... 47 Business— Rearrangement...... 48 Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 2004— Second Reading...... 49 Third Reading...... 54 Higher Education Legislation Amendment Bill (No. 3) 2004— Second Reading...... 54 Third Reading...... 61 Business— Rearrangement...... 61 Governor-General’s Speech— Address-in-Reply...... 61 Ministerial Arrangements ...... 66 Questions Without Notice— James Hardie Group of Companies...... 66 Distinguished Visitors...... 68 Questions Without Notice— Indigenous Affairs: National Indigenous Council ...... 68 James Hardie Group of Companies...... 69 Howard Government: Economic Policy...... 71 Regional Services: Program Funding...... 72 Nuclear Energy: Waste Storage ...... 73 Natural Heritage Trust ...... 73 Nuclear Energy: Floating Power Stations...... 74 Telstra: Services ...... 74 Insurance: Public Liability ...... 75 Distinguished Visitors...... 77 Questions Without Notice— Telecommunications: Services ...... 77 Immigration: Asylum Seekers ...... 78 Bushfires...... 79 Immigration: Asylum Seekers ...... 80

CONTENTS—continued

Questions Without Notice: Additional Answers— Nuclear Energy: Waste Storage ...... 81 Regional Services: Program Funding...... 81 Natural Heritage Trust ...... 82 Questions Without Notice: Take Note of Answers— James Hardie Group of Companies...... 82 Immigration: Asylum Seekers ...... 88 Committees— Reports: Government Responses...... 89 Reports: Government Responses...... 95 Legal and Constitutional Legislation Committee—Documents...... 104 Economics References Committee—Reference...... 105 Membership...... 106 Documents— Department of Immigration and Multicultural and Indigenous Affairs...... 106 Consideration...... 107 Committees— Employment, Workplace Relations and Education References Committee—Interim Report ...... 108 Rural and Regional Affairs and Transport Legislation Committee—Interim Report...... 109 Legal and Constitutional References Committee—Report ...... 110 Consideration...... 114 Documents— Consideration...... 114 Leave of Absence...... 114 Notices— Presentation ...... 114 Adjournment— Australian Labor Party: Centenary House...... 114 Royal Commission of Inquiry into the Centenary House Lease ...... 117 Australian Labor Party: Centenary House...... 120 Australian Democrats ...... 120 Lyons, Dame Enid ...... 123 Valedictory ...... 124 Valedictory ...... 124 Valedictory ...... 125 Documents— Tabling...... 125 Questions on Notice Environment: Woodsreef Asbestos Mine—(Question No. 11)...... 127 National Electricity Code Admistrator—(Question No. 55) ...... 127 Health: National Women’s Health Program—(Question No. 88) ...... 128 Environment: Mine Sites—(Question No. 89) ...... 128

Thursday, 9 December 2004 SENATE 1

Thursday, 9 December 2004 some cases in contravention of our national obli- ————— gations as a signatory of the UN Covenant on Civil and Political Rights.” The PRESIDENT (Senator the Hon. Paul Calvert) took the chair at 9.30 a.m. and We, therefore, the individual, undersigned atten- dees at All Saints Anglican Church, Nunawading read prayers. Vic 3071, petition the House of Representatives PETITIONS in support of the above mentioned Motion. The Clerk—Petitions have been lodged AND we, as in duty bound will ever pray. for presentation as follows: by Senator Fifield (from 33 citizens). Military Detention: Australian Citizens Petitions received. To the honourable the President and Members of NOTICES the Senate in Parliament assembled: Withdrawal The Petition of the undersigned shows: Senator TCHEN (Victoria) (9.31 a.m.)— As citizens of Australia and residents of the Fed- eral Seat of Lyne in New South Wales, we deplore I give notice that at the giving of notices on the lack of support and assistance offered to two the next day of sitting I shall withdraw busi- Australian Citizens David Hicks and Mamdouh ness of the Senate notices of motion Nos 3 Habib by the FEDERAL COALITION and 4 standing in my name for 11 sitting GOVERNMENT. days after today for the disallowance of the Hicks and Habib have been held in detention at following instruments. Guantanamo Bay, a U.S. Naval Base on the Is- National Health Amendment Regulations land of Cuba for over two years. They have been 2004 (No. 2), as contained in Statutory denied their basic HUMAN RIGHTS in direct Rules 2004 No. 186 and made under the contravention of the Geneva Convention on Pris- oners of War (Article 5). National Health Act 1953. Your Petitioners respectfully request the House National Health (Private Health Insurance take action immediately to assist the afore men- Levies) Regulations 2004, as contained in tioned detainees to gain their release and to be Statutory Rules 2004 No. 187 and made repatriated to Australia. under the National Health Act 1953. by Senator Faulkner (from 51 citizens). I seek leave to incorporate in Hansard the Immigration: Asylum Seekers committee’s correspondence concerning these regulations. To the Honourable the President and the Members of the Senate in Parliament assembled: Leave granted. Whereas the 1998 Synod of the Anglican Diocese The documents read as follows— of Melbourne carried without dissent the follow- National Health Amendment Regulations 2004 ing motion: (No.2) Statutory Rules 2004 No. 186 “That this Synod regrets the Government’s adop- National Health (Private Health Insurance tion of procedures for certain people seeking po- Levies) Regulations 2004 Statutory Rules 2004 litical asylum in Australia which exclude them No. 187 from all public income support while withholding permission to work, thereby creating a group of 5 August 2004 beggars dependent on the Churches and charities The Hon Tony Abbott MP for food and the necessities of life; Minister for Health and Ageing and calls upon the Federal government to review Parliament House such procedures immediately and remove all CANBERRA ACT 2600 practices which are manifestly inhumane and in

CHAMBER 2 SENATE Thursday, 9 December 2004

Dear Minister In response to your enquiries regarding the impo- I refer to the National Health Amendment Regu- sition of levies that have been collected prior to lations 2004 (No. 2), Statutory Rules 2004 No. 1 July 2004, I draw the Committee’s attention to 186 and the National Health (Private Health In- the following provisions: surance Levies) Regulations 2004, Statutory • Section 9 of the Private Health Insurance Rules 2004 No. 187. (Council Administration Levy) Act 2003 which The Committee notes that these regulations re- validates the imposition of the Private Health spond to concerns raised by the Australian Na- Insurance Administration Council administra- tional Audit Office about the Constitutional valid- tion levy before 1 July 2004; ity of certain levies imposed by the Private Health • Section 11 of the Private Health Insurance Insurance Administration Council. The Explana- (Collapsed Organization Levy) Act 2003, tory Statement indicates that legal advice has which validates the imposition of the collapsed been received about this matter. It is not clear, organization levy before 1 July 2004; however, whether any action is required to vali- • Section 9 of the Private Health Insurance date the imposition of levies that have been col- (ACAC Review Levy) Act 2003, which vali- lected prior to these amendments. The Committee dates the imposition of the Acute Care Advi- would therefore appreciate your advice on this sory Committee review levy before 1 July matter and seeks a copy of the legal advice re- 2004; and ferred to in the Explanatory Statement. • Section 9 of the Private Health Insurance (Re- The Committee would appreciate your advice as insurance Trust Fund Levy) Act 2003, which soon as possible, but before 3 September 2004, to validates the imposition of the Reinsurance enable it to finalise its consideration of these Trust Fund levy before 1 July 2004. regulations. Correspondence should be directed to the Chairman, Senate Standing Committee on The Committee should also have regard to the Regulations and Ordinances, Room SG49, Par- explanatory material which supplements this leg- liament House, Canberra. islation. Yours sincerely No further action is required to validate the imposition of these levies that have been collected Tsebin Tchen prior to these amendments. Chairman Yours sincerely ————— Tony Abbott 2 December 2004 Minister for Health and Ageing Senator Tsebin Tchen Presentation Chairman Senator Brown to move on the next day Senate Standing Committee on Regulations and of sitting: Ordinances That the Senate calls on the Government to in- Parliament House vestigate the potential for a World Heritage nomi- CANBERRA ACT 2600 nation for Tasmania’s Tarkine Wilderness. Dear Senator Tchen Senator Greig to move on the next day of Thank you for your letter of 5 August 2004 about sitting: the National Health Amendment Regulations That the proposed accreditation of the South- 2004 (No. 2), Statutory Rules 2004 No. 186 and ern Bluefin Tuna Fisheries Management Plan (as the National Health (Private Health Insurance amended), dated 10 November 2004 and made Levies) Regulations 2004, Statutory Rules 2004 under subsection 33(3) of the Environment Pro- No. 187. tection and Biodiversity Conservation Act 1999, be opposed.

CHAMBER Thursday, 9 December 2004 SENATE 3

BUSINESS COMMITTEES Rearrangement Legal and Constitutional References Senator ELLISON (Western Australia— Committee Manager of Government Business in the Reference Senate) (9.33 a.m.)—by leave—I move: Senator BARTLETT (Queensland— That on Thursday, 9 December 2004: Leader of the Australian Democrats) (9.35 (a) the hours of meeting shall be 9.30 am to a.m.)—At the request of Senator Stott De- adjournment; spoja, I move: (b) the routine of business from not later That the following matters be referred to the than 4.30 pm shall be: Legal and Constitutional References Committee (i) government business, for inquiry and report by 30 June 2005: (ii) consideration of orders of the day (a) the overall effectiveness and appropriate- relating to government docu- ness of the Privacy Act 1988 as a means ments, and by which to protect the privacy of Austra- lians, with particular reference to: (iii) consideration of committee reports, government responses and (i) international comparisons, Auditor-General’s reports; (ii) the capacity of the current legislative (c) divisions may take place after 4.30 pm; regime to respond to new and emerging and technologies which have implications for privacy, including: (d) the question for the adjournment of the Senate shall be proposed after the Sen- (A) ‘Smart Card’ technology and the ate has considered the business listed in potential for this to be used to estab- paragraph (b) above. lish a national identification regime, Question agreed to. (B) biometric imaging data, (C) genetic testing and the potential NOTICES disclosure and discriminatory use of Presentation such information, and Senator MURRAY (Western Australia) (D) microchips which can be implanted (9.34 a.m.)—by leave—I give notice that, on in human beings (for example, as the next day of sitting, I shall move: recently authorised by the United States Food and Drug Administra- That the terms of reference for the Legal and tion), and Constitutional References Committee inquiry into the effectiveness and appropriateness of the Pri- (iii) any legislative changes that may help vacy Act 1988, be amended as follows: to provide more comprehensive protection or improve the current regime in Paragraph (b), after “effectiveness”, insert any way; “including how privacy principles and processes should interact with the need for access (b) the effectiveness of the Privacy Amend- to records”. ment (Private Sector) Act 2000 in extend- ing the privacy scheme to the private sec- That will be taken up next February. I am tor, and any changes which may enhance saying that with the expectation that the mo- its effectiveness; and tion will be agreed to. (c) the resourcing of the Office of the Federal Privacy Commissioner and whether current levels of funding and the powers available to the Federal Privacy Commis-

CHAMBER 4 SENATE Thursday, 9 December 2004

sioner enable her to properly fulfil her Parties lodge their preference selection with the mandate. Australian Electoral Office two weeks before Question agreed to. election date. This selection numbers all candidates according to the party’s dictate. On polling SENATE VOTERS’ CHOICE day, above the line voters preferences are allo- (PREFERENCE ALLOCATION) BILL cated according to that dictate. 2004 Voters might expect that the party’s choice would First Reading be for the most like minded other party put to be Senator BROWN (Tasmania) (9.36 put second and the most unlike party to be put last. a.m.)—I move: The parties engage in negotiations, off the public That the following bill be introduced: record, to gain mutual preferences advantage. A Bill for an Act to amend the Commonwealth Policy matters can be swept aside to gain advan- Electoral Act 1918 to enable voters at Senate tage through preference arrangements with oth- elections to determine the order of their party erwise hostile parties. preferences in above the line voting, and for re- The perverse situation can arise where the party lated purposes. allocation of preferences is against the expecta- Question agreed to. tion of many or even most of its voters. Senator BROWN (Tasmania) (9.37 Election analyst Antony Green put it well when a.m.)—I move: speaking after the 2004 federal election “The That this bill may proceed without formalities deals that produced the Senate outcome have and be now read a first time. shown that the group ticket voting system used is starting to distort rather than reflect the will of the Question agreed to. electorate”. Bill read a first time. To overcome this problem, this bill creates pref- Second Reading erential voting above-the-line. Voters may number the parties above-the-line according to their Senator BROWN (Tasmania) (9.37 preference. a.m.)—I move: Of course, voters retain the more exacting option That this bill be now read a second time. of choosing candidates by below-the-line voting. I seek leave to have the second reading In NSW similar legislation to this was introduced speech incorporated in Hansard. after the infamous 1999 ‘table cloth’ ballot paper Leave granted. for the Legislative Council election (In that election a party on less than ½ of 1 percent was able The speech read as follows— to manipulate the process to win a seat in the up- SENATE VOTERS’ CHOICE (PREFERENCE per house. This was done with secret deals be- ALLOCATION) BILL 2004 tween a number of small parties with misleading Above the line voting for the Senate was intro- names). duced in 1984 to meet the problem of increasing The new NSW above the line preferential voting informal votes. With 50 to 100 Senate candidates system has worked well. It was used for the state in some states, many voters either made no at- election in 2003. It did not eliminate, as some had tempt or lost their way and so lost their vote. feared, the chance of small parties to being While above-the-line voting gave voters an easier elected. The Greens, Shooters Party and Fred Nile alternative, it also had a cost. It took the decision all won upper house seats. on preferences from the voter and gave it to the However this bill is not identical to the NSW party which the voter selected. scheme. In NSW there is optional preferential voting for both the lower and upper house. Voters

CHAMBER Thursday, 9 December 2004 SENATE 5 are not obliged to fill all the squares above the The Australian system for the regulation line and can limit their preferences to say 2 or 3 and oversight of human cloning and related parties. Under this legislation, the Senate voting issues was developed after broad consulta- scheme will remain compulsory preferential. Vot- tion with all the parties involved. Indeed, it ers will need to number all above the line boxes. was a great example of a bipartisan approach This is consistent with the House of Representa- tives compulsory preferential system. that involved both state and Commonwealth levels of government. The legislation that This amendment to the Electoral Act enhances implemented this approach was approved by democracy. It provides a simple and attractive option for voters to keep control of the destiny of the Council of Australian Governments and their vote and so the make-up of the Senate. an act was supported by all political parties after a series of votes on conscience. The Senator BROWN—I seek leave to continue my remarks later. system that is now in place and operational will be assessed by a review that is due to Leave granted; debate adjourned. begin this month and completed within the ENVIRONMENT: TARKINE next 12 months. It is therefore inappropriate WILDERNESS that the Howard government should discard Senator BROWN (Tasmania) (9.37 this considered and bipartisan approach a.m.)—by leave—I move the motion as without public notification of the United Na- amended: tions debate and future vote that has interna- That the Senate calls on the Government to tional ramifications. provide further protection of Tasmania’s Tarkine This is why Labor supports the call in this wilderness, including its temperate rainforest, motion for the Howard government to con- coastline and Aboriginal heritage, for World Heri- sult with the Council of Australian Govern- tage listing while ensuring no overall loss of jobs ments and with the stakeholders. We also call in the state’s forestry industry. on the government to be open and frank with Question agreed to. the Australian people about why it has ap- HUMAN CLONING parently dissented from Australia’s national Senator BARTLETT (Queensland— position on human cloning in an interna- Leader of the Australian Democrats) (9.38 tional forum. However, the subject of this a.m.)—At the request of Senator Stott De- motion is such that Labor is unable to accord spoja, I ask that general business notice of the motion formal support. motion No. 49 relating to human cloning be Senator HARRADINE (Tasmania) (9.40 taken as formal. a.m.)—by leave—This is an inappropriate The PRESIDENT—Is there any objec- method of dealing with probably one of the tion to this motion being taken as formal? most important issues that are going to come before us at some stage—that is, the question Senator GEORGE CAMPBELL (New of human cloning. There was widespread South Wales) (9.39 a.m.)—by leave— consultation. There was a painful and long Labor’s position on this motion is one of debate in the chamber on the Research In- broad support but on an issue such as human volving Human Embryos Bill 2002. By a cloning, which is always accorded a con- majority the bill was adopted. But the main science vote in the Labor Party, it is impor- supportive argument put forward—a falla- tant that our reasons for not giving formal cious argument, in my view—was that these support are outlined. human embryos are spare in the IVF program and therefore they may as well be used.

CHAMBER 6 SENATE Thursday, 9 December 2004

The cloning of human embryos to be delib- SUPERANNUATION INDUSTRY erately destroyed to harvest their stem cells (SUPERVISION) AMENDMENT is an entirely different matter. I think it is REGULATIONS 2004 (NO. 2) entirely inappropriate to try to put this mo- Motion for Disallowance tion through as a formal motion. I agree with Senator GEORGE CAMPBELL (New Senator George Campbell that there should South Wales) (9.43 a.m.)—At the request of be further discussion. In fact, the structure is Senator Sherry, I ask that business of the there to have that. Senate notice of motion No. 2 relating to the Senator BARTLETT (Queensland— disallowance of the new divisions 9.2A and Leader of the Australian Democrats) (9.42 9.2B in item [10] of schedule 1 to the Super- a.m.)—I understood that Senator George annuation Industry (Supervision) Amend- Campbell was saying they were denying ment Regulations 2004 (No. 2) be taken as a formality. I move: formal motion. That the Senate— The PRESIDENT—Is there any objec- (a) notes that: tion to this motion being taken as formal? (i) in the recent United Nations (UN) de- Senator Bartlett—Yes. I think we would bate on a ban on human cloning, the prefer to debate that under business of the Australian Government co-sponsored a Senate just so we could outline our reasons proposal from Costa Rica that it had previously stated it would oppose, for the position. (ii) the change in the Government’s posi- The PRESIDENT—It can be dealt with tion on this issue was made without later in the proceedings. consultation with the states or the bio- COMMITTEES technology industry, and Employment, Workplace Relations and (iii) a review of the Research Involving Education Legislation Committee Human Embryos Act 2002 and the Prohibition of Human Cloning Act Reference 2002 is due to commence shortly and Senator GEORGE CAMPBELL (New the independence of such an important South Wales) (9.44 a.m.)—At the request of review should not be compromised by Senator Marshall, I move: government commitments in the inter- That the provisions of the Workplace Relations national arena; Amendment (Small Business Employment Pro- (b) calls on the Government to consult with tection) Bill 2004 be referred to the Employment, the states and the biotechnology industry Workplace Relations and Education Legislation before stating its position on human clon- Committee for inquiry and report by 14 March ing at the UN in February 2005, when de- 2005. bate on this issue is due to recommence; Question agreed to. and (c) congratulates the Australian Stem Cell INTERNATIONAL HUMAN RIGHTS Centre, Australia’s only Biotechnology DAY Centre of Excellence, for holding its sec- Senator BROWN (Tasmania) (9.44 ond successful Annual Scientific Confer- a.m.)—I move: ence. That the Senate noting that 10 December is In- Question negatived. ternational Human Rights Day, congratulates Mr Brian Summerfield who is celebrating the day in Melbourne by completing a bike ride around Aus-

CHAMBER Thursday, 9 December 2004 SENATE 7 tralia during which he raised hundreds of dollars (i) condemn the ongoing abuse of human for Tibetan refugees and promoted the cause of a rights worldwide, free Tibet. (ii) recognise the need for concerted inter- Question put. national action to address human rights The Senate divided. [9.49 a.m.] abuses, and (iii) call for urgent efforts to address the (The President—Senator the Hon. Paul growing inequity between rich and Calvert) poor which impinge on rights to life, Ayes………… 8 liberty and freedom from oppression Noes………… 40 for so many millions around the globe; and Majority……… 32 (b) condemns the Government’s appalling AYES record in the field of human rights, and in particular the Government’s: Allison, L.F. * Bartlett, A.J.J. Brown, B.J. Greig, B. (i) failure to endorse the United Nations Lees, M.H. Murray, A.J.M. (UN) Optional Protocol to the Conven- Nettle, K. Ridgeway, A.D. tion against Torture and Other Cruel, NOES Inhuman or Degrading Treatment or Punishment, Barnett, G. Bishop, T.M. (ii) contravention of the UN Convention on Boswell, R.L.D. Buckland, G. Calvert, P.H. Campbell, G. the Rights of the Child in relation to Chapman, H.G.P. Colbeck, R. some asylum seeker detainees, Collins, J.M.A. Crossin, P.M. (iii) tacit support of United States of Amer- Denman, K.J. Ellison, C.M. ica tactics in the ongoing occupation of Evans, C.V. Faulkner, J.P. Iraq including the use of depleted ura- Ferguson, A.B. Ferris, J.M. * nium, napalm and cluster bombs, Fifield, M.P. Forshaw, M.G. (iv) unwillingness to act in defence of Mr Hogg, J.J. Humphries, G. David Hicks and Mr Mamdouh Habib Johnston, D. Kemp, C.R. illegally detained in Guantanamo Bay, Lightfoot, P.R. Ludwig, J.W. Cuba, Lundy, K.A. Mackay, S.M. McGauran, J.J.J. McLucas, J.E. (v) failure to pursue the recommendations Moore, C. O’Brien, K.W.K. of the Royal Commission into Aborigi- Payne, M.A. Santoro, S. nal Deaths in Custody, and Scullion, N.G. Sherry, N.J. (vi) failure to reach UN agreed targets for Stephens, U. Tchen, T. international aid for poverty alleviation Troeth, J.M. Watson, J.O.W. overseas. Webber, R. Wong, P. * denotes teller Question put. Question negatived. The Senate divided. [9.54 a.m.] Senator NETTLE (New South Wales) (The President—Senator the Hon. Paul (9.52 a.m.)—I move: Calvert) That the Senate— Ayes………… 8 (a) notes that 10 December is International Noes………… 41 Human Rights Day and joins with the Majority……… 33 many thousands around the world, who are participating in events on this day, to:

CHAMBER 8 SENATE Thursday, 9 December 2004

AYES last week that Australia’s reduced com- Allison, L.F. * Bartlett, A.J.J. pensation offer to Timor Leste Brown, B.J. Greig, B. ‘amounted to an unacceptable black- Lees, M.H. Murray, A.J.M. mail’, and Nettle, K. Ridgeway, A.D. (iv) the patronising and inaccurate com- NOES ments by the Minister for Foreign Af- fairs (Mr Downer) in response to East Barnett, G. Bishop, T.M. Timorese dissatisfaction with the Aus- Boswell, R.L.D. Brandis, G.H. tralian Government’s compensation of- Buckland, G. Calvert, P.H. fer when he said ‘East Timor wouldn’t Campbell, G. Chapman, H.G.P. Colbeck, R. Collins, J.M.A. be an independent country if it wasn’t Crossin, P.M. Denman, K.J. for Australia’; and Ellison, C.M. Evans, C.V. (b) calls on the Government to: Faulkner, J.P. Ferguson, A.B. (i) negotiate a fair and equitable maritime Ferris, J.M. * Fifield, M.P. boundary with Timor Leste according Forshaw, M.G. Hogg, J.J. to current international law and the Humphries, G. Johnston, D. provisions of the United Nations Con- Kemp, C.R. Lightfoot, P.R. vention on the Law of the Sea, Ludwig, J.W. Lundy, K.A. Mackay, S.M. McGauran, J.J.J. (ii) respond to the request by Timor Leste McLucas, J.E. Moore, C. for more regular meetings to settle the O’Brien, K.W.K. Payne, M.A. maritime boundary dispute between the Santoro, S. Scullion, N.G. two countries within a more reasonable Sherry, N.J. Stephens, U. timeframe, Tchen, T. Troeth, J.M. (iii) return Australia to the jurisdiction of Watson, J.O.W. Webber, R. the International Court of Justice and Wong, P. the United Nations Convention on the * denotes teller Law of the Sea for the adjudication of Question negatived. maritime boundaries, and FOREIGN AFFAIRS: EAST TIMOR (iv) commit to hold in trust revenues from disputed areas immediately outside the Senator NETTLE (New South Wales) Joint Petroleum Development Area of (9.57 a.m.)—I move: the 20 May 2002 Timor Sea Treaty for That the Senate— further apportionment between Austra- (a) notes: lia and Timor Leste after the maritime boundary dispute between the two (i) that the inaugural Dr Andrew countries has been settled. McNaughtan memorial lecture was delivered on 7 December 2004, which Senator GEORGE CAMPBELL (New also marks the 29th anniversary of the South Wales) (9.58 a.m.)—by leave—Labor Indonesian invasion of East Timor, cannot support the motion in its current (ii) Dr McNaughtan’s major contribution to form. Labor are happy to work with the mi- the struggle of the East Timorese peo- nor parties on notices of motion of this na- ple, including his work to achieve eco- ture, and in this instance we did work con- nomic justice in relation to the structively with the senator’s office. How- Timorese claim to oil and gas reserves ever, we were unable to agree in the final in the Timor Sea, analysis because the proposed counter (iii) the remarks of Timorese Foreign Min- amendments were contrary to existing Labor ister, Mr Jose Ramos Horta, who said policy.

CHAMBER Thursday, 9 December 2004 SENATE 9

Labor strongly believe in negotiating in NOES good faith with the Timorese on the disputed Barnett, G. Bishop, T.M. maritime boundaries between our two coun- Boswell, R.L.D. Brandis, G.H. tries with a view to having an agreement ac- Buckland, G. Calvert, P.H. ceptable to both sides. Our policy is that the Campbell, G. Chapman, H.G.P. government should do all things reasonably Colbeck, R. Collins, J.M.A. Crossin, P.M. Denman, K.J. practicable to reach a negotiated settlement Eggleston, A. Faulkner, J.P. as rapidly as possible and based on the joint Ferguson, A.B. Ferris, J.M. * aspirations of both countries. We believe a Fifield, M.P. Hogg, J.J. negotiated settlement should be consistent Humphries, G. Johnston, D. with international law and the United Na- Kemp, C.R. Ludwig, J.W. tions Convention on the Law of the Sea. Lundy, K.A. Macdonald, J.A.L. Mackay, S.M. McGauran, J.J.J. During the election campaign we had no McLucas, J.E. Moore, C. objection to the maritime boundary negotia- Payne, M.A. Santoro, S. tions taking place, being mindful that a set- Scullion, N.G. Sherry, N.J. tlement before the end of the year is an im- Stephens, U. Tchen, T. portant requisite for the proponents of the Troeth, J.M. Watson, J.O.W. Webber, R. Wong, P. Greater Sunrise project to commit to move * denotes teller the project forward. The realisation of the Greater Sunrise project would unlock reve- Question negatived. nue for both East Timor and Australia. We FORESTRY: MANAGEMENT note with disappointment the apparent break- Senator BROWN (Tasmania) (10.04 down in relations between Australia and East a.m.)—I move: Timor since the negotiations, despite com- That the Senate calls on the Government to ments by both sides prior to the federal elec- provide further protection of identified Tasmanian tion that the negotiations were anticipated to high conservation value old-growth forests, rain- move rapidly to an amicable conclusion. forests, and other ecosystems while ensuring no Question put: overall loss of jobs in the state’s forestry industry through the implementation of a sustainable in- That the motion (Senator Nettle’s) be agreed dustry plan based on the use of plantation timber, to. selective use of native timber, value-adding, and The Senate divided. [10.01 a.m.] downstream processing. (The President—Senator the Hon. Paul Question agreed to. Calvert) EDUCATION: UNIVERSITY FUNDING Ayes………… 8 Senator BARTLETT (Queensland— Noes………… 38 Leader of the Australian Democrats) (10.05 Majority……… 30 a.m.)—At the request of Senator Stott De- spoja, I move: AYES That the Senate— Allison, L.F. * Bartlett, A.J.J. (a) notes that: Brown, B.J. Greig, B. Lees, M.H. Murray, A.J.M. (i) the review of the cost adjustment factor Nettle, K. Ridgeway, A.D. indexation mechanism for Common- wealth funding of universities provided for under the Higher Education Sup-

CHAMBER 10 SENATE Thursday, 9 December 2004

port Act 2003 will not be an independ- from 4 pm to 6 pm, in relation to its inquiry on ent review, the administration of Biosecurity Australia con- (ii) a review of such importance should not cerning the revised draft import risk analysis for be conducted within the confines of the apples from New Zealand. Department of Education, Science and Question agreed to. Training and the Government, FOREIGN AFFAIRS: WEST PAPUA (iii) the university sector has no confidence in the review of indexation delivering Senator BARTLETT (Queensland— an appropriate outcome, and Leader of the Australian Democrats) (10.06 a.m.)—At the request of Senator Stott De- (iv) without improved indexation, universities will have few alternatives to meet spoja, I move: funding shortfalls other than increases That the Senate— in student fees when they approach the (a) notes reports of violence within the Pun- end of the Government’s ‘Our Univer- cak Jaya district of West Papua, including sities: Backing Australia’s Future’ reports that: package in 2008; (i) between 5 000 and 20 000 Papuans (b) condemns the Government for under- have fled into the mountains after raids funding universities for the past 8 years, by the Indonesian military, whose offi- partly through inadequate indexation, to cers allegedly fired automatic weapons such an extent that universities are now at villagers from helicopters, turning to students to provide a short-term (ii) humanitarian access is being denied to increase in funding; and these displaced persons and many of (c) calls on the Government to: them are now starving, and (i) make all paperwork pertaining to the (iii) at least 18 people have died, including review public, in time for the sector to a number of children; and make informed comment before the re- (b) calls on the Government to express con- view is completed in February 2005, cern to the Indonesian Government re- and garding these reports and encourage the (ii) rule out any further higher education Indonesian Government to: contribution scheme increases. (i) immediately institute an investigation Question agreed to. into the allegations, COMMITTEES (ii) ensure the safe return of the displaced Rural and Regional Affairs and Transport Papuans to their homes, Legislation Committee (iii) enable humanitarian and human rights organisations, as well as journalists, to Meeting gain access to the affected area, Senator FERRIS (South Australia) (iv) work to bring an end to the violence (10.05 a.m.)—At the request of the Chair of within West Papua, and the Rural and Regional Affairs and Transport (v) bring the perpetrators of these crimes to Legislation Committee, Senator Heffernan, I justice. move: Question negatived. That the Rural and Regional Affairs and Transport Legislation Committee be authorised to Senator Brown—I ask that the Greens’ hold a private meeting otherwise than in accor- support for Senator Stott Despoja’s motion dance with standing order 33(1) during the sitting relating to West Papua be recorded. of the Senate on Wednesday, 9 February 2005,

CHAMBER Thursday, 9 December 2004 SENATE 11

BUSINESS bills will be considered and the government, Consideration of Legislation as usual, provided an essential bills list. We work cooperatively through that program in Senator GEORGE CAMPBELL (New dealing administratively with it. We obvi- South Wales) (10.07 a.m.)—At the request of ously have our positions in respect of the Senator Marshall, I move: bills: some we agree to, some we object to (1) That so much of standing orders be sus- and some we amend. They are usually dealt pended as would prevent this resolution with in seriatim and we alter them to suit. We having effect. do not usually add bills, even though there (2) That the Flags Amendment (Eureka Flag) may be room in the program. Bill 2004 be restored to the Notice Paper and that consideration of the bill be re- To be fair to the government—although I sumed at the stage reached in the last ses- do not really wish to be, because I think sion of the Parliament. sometimes they might be arrogant, but not in Question agreed to. this respect—there is usually a reserve where the government may wish to add an urgent or Rearrangement unforeseen bill to the list. We have already Senator LUDWIG (Queensland) (10.08 done that once and the government went a.m.)—by leave—I would like to outline the about it in what I would call ‘the right way’. process for today. If the President recalls, They ensured that everyone was advised. I earlier this morning a motion was passed was the opposite number for that bill, so I which indicated that effectively we would be shadowed for it—the Customs Amendment dealing with what was on the Order of Busi- Bill 2004. We then agreed that it was an ur- ness until we rise, including, in essence, the gent bill, the government demonstrated its James Hardie (Investigations and Proceed- bona fides and were able to provide a clear ings) Bill 2004, the Disability Discrimination indication that it was needed before we rose. Amendment (Education Standards) Bill In that instance the Greens and the Democ- 2004, the Classification (Publications, Films rats could see the sense in that and agreed to and Computer Games) Amendment Bill (No. the urgency and we were able to fit the bill in 2) 2004, the Higher Education Legislation the program. Amendment Bill (No. 3) 2004 and then the That does not seem to have occurred in address-in-reply. There seems to have been a this instance, and I do not hold the govern- slip in the process because that motion was ment to blame. They may be able to expand not provided to the opposition and I am not on this, but it seems to be just a process of sure whether it was provided to the minor getting excited about going home a bit earlier parties either. Usually this place works by today. Normally we would expect the gov- cooperation. Especially on what could be the ernment to consult with the minor parties and last day of sitting—I suspect it will be the the relevant shadow ministers in relation to last day—Christmas cheer usually descends additions to the Notice Paper to be dealt with and we work cooperatively to the conclusion before rising. They would consult to ensure of the program. that the bills could be dealt with and meet the I recognise that the program is, in this in- criteria for being urgent. stance, not onerous, although it has been I am sorry, Mr President, that this is taking quite a tiring period. We still had the rea- more time than I originally thought, but it is sonably good process of leaders and whips important we understand where we are on meeting earlier in the week to resolve which

CHAMBER 12 SENATE Thursday, 9 December 2004 the program if we are to get home at a rea- and the Higher Education Legislation sonable hour. That is entirely likely if we can Amendment Bill (No. 3) 2004 and we have a gain cooperation from everyone. If we do not message as well relating to the Tax Laws deal in a cooperative way and with full Amendment (Retirement Villages) Bill 2004 knowledge, legislation sometimes run off the which will have to be dealt with. On that rails. You could see that easily happening basis, we would exclude the Disability Dis- with something like the Disability Discrimi- crimination Amendment (Education Stan- nation Amendment (Education Standards) dards) Bill 2004 from the list. I understand Bill 2004 or the Higher Education Legisla- the Democrats were looking at some tion Amendment Bill (No. 3) 2004. If some- amendment to that bill—there is some issue body seeks to amend the legislation and it is with that. The government will not proceed agreed to, then the amendment has to go to with that bill on the list, but would want the the House and, if agreed to there, has to other bills I mentioned dealt with before the come back to the Senate. So the program can rising of the parliament. The approach Sena- sometimes ‘spin out’ longer than expected. tor Ludwig mentioned is reasonable. We are In this instance, the government should drafting a motion to reflect that. I thought the clearly say that they will come back with a previous motion had been circulated. I will motion that is agreed to by all parties in the ensure the amended motion is circulated to Senate in order to deal with the program in opposition, Democrat, Green and Independ- the hour set down. With the cooperation of ent senators and that we have a chance to everyone, I think they can find a suitable deal with it prior to moving it in the cham- time to cease. Normally we have a sessional ber. That is the government thinking in rela- order for no divisions and no quorums after tion to today’s itinerary. I think that should 4.30 p.m. and we then move to government be achievable. documents at 6 p.m. I am not going to sug- COMMITTEES gest a time, but it looks as though the pro- Publications Committee gram, with cooperation, could stay roughly Report within those bounds. As always, we can deal Senator EGGLESTON (Western Austra- with the address-in-reply—always an impor- lia) (10.15 a.m.)—At the request of the Chair tant matter to be dealt with by the Senate—to of the Standing Committee on Publications, completion as well. That sets down the issues Senator Watson, I present the first report of that I need the government to provide some the Publications Committee. assurance on, so that we can deal coopera- Ordered that the report be adopted. tively with today’s work. BUDGET Senator ELLISON (Western Australia— Manager of Government Business in the Consideration by Legislation Committees Senate) (10.13 a.m.)—by leave—The gov- Additional Information ernment is in the process of drafting a mo- Senator EGGLESTON (Western Austra- tion which I think will reflect much of what lia) (10.16 a.m.)—On behalf of the Chair of Senator Ludwig has said. The bills the gov- the Employment, Workplace Relations and ernment has for passing before the rising of Education Legislation Committee, Senator the Senate today are the James Hardie (In- Barnett, I present additional information re- vestigations and Proceedings) Bill 2004, the ceived by the committee relating to hearings Classification (Publications, Films and Com- on additional and budget estimates for puter Games) Amendment Bill (No. 2) 2004 2002-03 and 2003-04.

CHAMBER Thursday, 9 December 2004 SENATE 13

Consideration by Legislation Committees What is ... significant is that many trails lead di- Additional Information rectly to the Prime Minister’s Department, his Office and to the Prime Minister himself. Whilst Senator EGGLESTON (Western Austra- it has not been claimed, nor proven, that the lia) (10.16 a.m.)—On behalf of the Chair of Prime Minister knew the truth and lied, many the Legal and Constitutional Legislation reports question his claim that “I never received Committee, Senator Payne, I present addi- any written contradiction of that (children thrown tional information received by the committee overboard), nor did I receive any verbal contra- relating to hearings on the budget estimates diction of that” and, regarding his office, “No”. for 2003-04. This is what makes Mr Scrafton’s evidence COMMITTEES of his conversations with the Prime Minister Scrafton Evidence Committee on the night of 7 November 2001 so important. Mr Scrafton’s account of what he told Report the Prime Minister provides us with some of Senator JACINTA COLLINS (Victoria) the missing pieces of this jigsaw. (10.16 a.m.)—I present the report of the Se- The CMI committee knew that Mr Scraf- lect Committee on the Scrafton Evidence, ton had told the Prime Minister that the together with the Hansard record of proceed- video of the incident was ‘at best inconclu- ings. sive’ as to whether any children had been Ordered that the report be printed. thrown overboard. The new evidence that Mr Senator JACINTA COLLINS—I move: Scrafton has revealed publicly suggests that That the Senate take note of the report. he also gave the Prime Minister three other I am pleased to speak on this report, not only items of advice: firstly, that the photographs as the chair of the committee but also as a released in early October 2001 were defi- member of its predecessor, the Select Com- nitely of the sinking of the refugee boat on mittee on a Certain Maritime Incident, or the 8 October and not of any children being CMI committee as it became known. The thrown into the water the day before; sec- CMI committee made significant headway in ondly, that no-one in Defence that he dealt reconstructing what really happened during with still believed that children had been the so-called ‘children overboard’ affair. But thrown overboard; and, thirdly, that an ONA it was forced to leave some questions unan- report of 9 October 2001, which the Prime swered, primarily because of government Minister believed confirmed the ‘children obstruction in banning serving and former overboard’ incident, may have been based MOPS staffers and departmental liaison offi- solely on ministers’ media statements and not cers from appearing before that committee— intelligence. These points directly contradict a ban that remains in force. the Prime Minister’s media statements on this issue before the 2001 election and his The most critical question that the CMI statements to the parliament shortly thereaf- committee could not answer conclusively ter. was whether the Prime Minister had lied to the Australian public about whether he was The Prime Minister continues to deny that advised, before the 2001 federal election, he discussed anything with Mr Scrafton that the ‘children overboard’ incident did not other than the SIEV4 video. In support of occur. As I said in my additional comments this position, the government has made a to the CMI report: concerted effort to discredit Mr Scrafton, and the government senators’ report that I am

CHAMBER 14 SENATE Thursday, 9 December 2004 tabling now continues along this vein. accounts are not evidence of what Mr Scraf- Through this inquiry, the committee has ton told the Prime Minister, only of what he heard suggestions that Mr Scrafton is not to told others of those conversations. But the be believed simply because he has said he is Prime Minister has failed to explain why Mr not sure whether he had two or three conver- Scrafton would have fabricated his version sations with the Prime Minister on 7 No- of these conversations for the purpose of vember 2001. The Prime Minister has sug- telling a Defence colleague and an internal gested that Mr Scrafton cannot be believed military investigation. Any reasonable person because he did not give a full account of would think it much more likely that Mr these conversations to an inquiry conducted Scrafton would be frank and honest with his by the Department of the Prime Minister and colleagues in off-the-record conversations Cabinet in 2001. than that he would cook up a false story for The Prime Minister is asking us to believe inexplicable motives not knowing or having his account over Mr Scrafton’s. But as yet he any foresight about how these events would has produced no reasonable explanation as to subsequently pan out. The government sena- why it would have taken two phone calls for tors’ report tabled with this report also ig- Mr Scrafton to tell him a video was incon- nores this evidence—the corroboration from clusive. In September this year, he told jour- others. nalists that his second phone call to Mr Mr Scrafton’s failure to tell the Bryant in- Scrafton was to tell him to release the video. quiry about the content of his phone conver- But none of his staff recollect this or mention sations with the Prime Minister raises more it in their statements. And it begs the ques- questions about the nature of the Bryant in- tion why Tony O’Leary, who was with the quiry than it does about Mr Scrafton’s credi- Prime Minister on the Wednesday night, then bility. The inquiry’s terms of reference, as called Mr Scrafton on the Thursday morning interpreted by the public servants conducting to tell him the Prime Minister wanted to re- it, constrained it from inquiring into the in- lease the video. If the Prime Minister’s sec- ternal workings of ministerial offices. As the ond phone call was to instruct Mr Scrafton to CMI report found, it was in ministerial of- release the video, Mr O’Leary would have fices that important verbal advice failed to be heard this and would have known his phone passed on or acted on. Mr Scrafton’s evi- call to instruct Mr Scrafton to release the dence to this committee suggests that public video was redundant. servants giving evidence to the Bryant in- Mr Scrafton’s account of his conversa- quiry were afraid to tell the whole truth be- tions with the Prime Minister is supported by cause saying anything embarrassing to this evidence from a former senior Defence offi- government would have professional conse- cial and two military officers. Jenny quences. The implications of this are disturb- McKenry says Mr Scrafton told her on ing—and we reflect upon this—not just for 8 November 2001 that he had told the Prime the Bryant report but for the ability of any Minister there was no evidence to support internal inquiry investigating controversial the ‘children overboard’ story. Major General issues to get to the truth of the matter. Roger Powell and Commander Michael One of the great furphies in this inquiry Noonan both recall Mr Scrafton telling them has been the suggestion that Mr Scrafton’s in December 2001 that he had told the Prime uncertainty over the number of phone calls Minister children had not been thrown over- with the Prime Minister discredits his evi- board. The Prime Minister has said these dence entirely. Mr Scrafton was up front in

CHAMBER Thursday, 9 December 2004 SENATE 15 telling this committee that he was not sure committee finds Mr Scrafton’s claim that he whether there were two or three conversa- told the Prime Minister on 7 November 2001 tions. This uncertainty is understandable. that there was no evidence to substantiate the Half of the Prime Minister’s staff who made ‘children overboard’ story credible. The clear statements about the matter could not recall implication of his evidence is that the Prime how many conversations there were either. Minister misled the Australian public in the Under vigorous questioning, Mr Scrafton lead-up to the 2001 federal election. Unfor- remained certain about the key elements he tunately, the government senators’ report had communicated to the Prime Minister on following the committee’s report misrepre- the night of 7 November 2001. sents this finding. The committee does not At this point I should make a comment find Mr Scrafton overall to be credible; we about the alleged phone records that some simply find his claims supported by Powell, have suggested discredit Mr Scrafton’s evi- McKenry and Noonan to be credible. dence. During this committee’s public hear- As chair, I thank all those who supported ing, a government senator selectively quoted the work of this committee, including those from documents alleged to be phone records witnesses who gave their time to appear be- from all the mobile phones in the Lodge that fore it. In particular, I thank Mr Scrafton, night. He refused to table these documents as who, as former committee chair Senator Ray evidence so the committee could examine has said, faced this day of questioning with them and refused to identify their source. He grace and strength, knowing that by coming did not offer Mr Scrafton the chance to view forward he would be subjected to vigorous the documents for himself. This selective use scrutiny. I also thank the committee secre- of unsourced, unverified material in an effort tariat, Alistair Sands, Peta Leemen and Di to discredit a witness before a Senate com- Warhurst, for their work on this inquiry. mittee should be seen for what it is: a cheap Senator BRANDIS (Queensland) (10.27 stunt put on for the media that is unworthy of a.m.)—The poor old Australian Labor Party. the attention it received. Nothing that has For the last two months we have seen the been heard about those records has cast unseemly spectacle of the Australian Labor doubt on the core points of Mr Scrafton’s Party refighting the 2004 election. I am sure evidence. that all of us who are professional politicians The findings of this report are: the com- feel a little sympathy for a political party in mittee accepts the evidence of both Major such a devastating condition. But what we General Powell and Commander Noonan had never thought and what, I am sure, the that Mr Scrafton told them in December Australian people never expected was that 2001 that he had advised the Prime Minister today, on the last day of the parliamentary there was no substance to claims that chil- year, we would see the even more absurd and dren had been thrown overboard; the com- ludicrous spectacle of the Australian Labor mittee accepts Mr Scrafton’s evidence that Party not refighting the last election but re- he felt constrained by various factors in his fighting the election before last. submissions to the Bryant inquiry; the com- As anybody who took the care to sit mittee notes Mr Scrafton’s lack of certainty through the ‘children overboard’ inquiry and about the number and timing of his phone the Scrafton inquiry and study the evi- calls with the Prime Minister on 7 November dence—the Hansard and the documentary 2001 but his certainty about the key points evidence—with an objective, analytical, discussed during those conversations; the

CHAMBER 16 SENATE Thursday, 9 December 2004 clinical and forensic mind knows, just as the Club the next day, 8 November 2001, in the first children overboard inquiry was a stunt, last week of the 2001 election campaign. The an attempt by the Australian Labor Party to ‘children overboard’ issue had bubbled to the refight the 2001 election, so the Scrafton surface again late in the campaign and Mr inquiry, this cooked-up kangaroo court estab- Howard wanted to make sure that he was lished by this Senate on the first day of the fully informed of all the material facts and 2004 election campaign for a nakedly politi- circumstances. Mr Howard rang Mr Scrafton cal purpose, was yet another attempt by the on the evening of 7 November. We know that Australian Labor Party to use the processes because Mr Scrafton said so and the Prime of this place to score cheap political points. Minister said so. It is uncontroversial that Anybody who thinks that either the ‘children there was at least one fairly lengthy tele- overboard’ inquiry or the Scrafton inquiry phone call. was some attempt at an objective, neutral, At the Scrafton inquiry I produced the forensic canvassing of evidence is deluding telephone records of every telephone that themselves. was at the Lodge that night, both for the As for Senator Collins, from whom we landlines and the mobile phones of the Prime just heard a speech that misrepresented the Minister, Mrs Howard and the four senior position of the government senators in an advisers. egregious way, Senator Collins was not even Senator Jacinta Collins interjecting— on the Scrafton inquiry, Senator Collins was Senator BRANDIS—There is nothing not even there on the day that Mr Scrafton strange about these telephone records, Sena- was examined by this Senate committee. She tor Collins. I offered to show them to Senator was substituted after Senator Ray resigned as Ray and Senator Faulkner, but they did not chairman. The matters of which Senator want to look at them because they did not Collins speaks are matters of which she has want to see the truth. They wanted to avert no personal knowledge at all. their eyes from the truth. There is no sugges- Mr Acting Deputy President, let me tell tion that these were other than perfectly or- you what the facts are—they are in a very dinary, commonplace telephone records that simple compass. Mr Scrafton, a man who recorded the calls made. I have seen them, had been a senior adviser to the former Min- Senator Collins. Don’t call me a liar. I have ister for Defence, Mr Reith, was asked to seen the telephone records, and I can tell you view a video of the so-called ‘children over- they are completely ordinary, commonplace board’ event, which took place on 7 October telephone records. They show that the Prime 2001. He reviewed that video on 7 Novem- Minister initiated, from his mobile telephone ber 2001. He was asked to do that by Mr on the evening of 7 November 2001, two Reith. He was also asked by Mr Reith to telephone calls to Mr Scrafton. The first one speak to the Prime Minister on the tele- was a longish telephone call at 8.41 p.m. that phone—it is uncontroversial that the Prime lasted some 9½ minutes, and the second one Minister rang him—to tell him what was on was a very brief telephone call that lasted for the video. That was Mr Scrafton’s only rele- 51 seconds some time after 10 p.m. Mr vant involvement in these events. The Prime Scrafton was at a restaurant in Sydney at the Minister, who was in Canberra at the Lodge time he received those calls. on the evening of 7 November 2001 with The number of telephone calls becomes four of his senior advisers and Mrs Howard, important only if you have a mind that can was preparing to speak to the National Press

CHAMBER Thursday, 9 December 2004 SENATE 17 grasp the sequence of events and a mind that McClintock; the Prime Minister’s Principal can understand evidence which obviously Private Secretary, Mr Nutt; his Chief of Staff, Senator Collins, with respect, you do not Mr Sinodinos; and his Press Secretary, Mr have. One thing is common to all witnesses: O’Leary—have all given statements, which to Mr Scrafton, to the Prime Minister and to are appendix 4 to the report, saying the same the four senior advisers who were with the thing. They said that all the Prime Minister Prime Minister at the Lodge on that evening talked about in that 9½-minute telephone at the time that he placed the first telephone conversation with Mr Scrafton was the call to Mr Scrafton, and that is that they only video. So we are all in agreement about that. talked about the contents of the video. That Senator Ludwig—Were you there? is why Mr Howard was ringing Mr Scrafton, Senator BRANDIS—No, but everybody because Mr Scrafton was the man who had who was there, Senator Ludwig, said the been given the job to look at the video. That same thing, and that is what Mr Scrafton was the only involvement relevant to these said. After the Labor Party lost the election events that Mr Scrafton had. It was the only before last, the Prime Minister initiated the reason why the Prime Minister would have Bryant inquiry. On 14 December, 37 days been ringing him. So he rang him. They had after these events, when they were still fresh a conversation that lasted about 9½ minutes in his mind and when he had no motive to in which Mr Scrafton described to the Prime lie, Mr Scrafton appeared before the Bryant Minister what he had seen, having viewed inquiry. His statement to the Bryant inquiry the video earlier that day in Sydney. stated: ‘Mr Scrafton stated that he continued How do we know that the only topic in the to be marginally involved in events around first telephone conversation was the video? the incident’—that is, the ‘children over- Because everybody says so. And Mr Scrafton board’ incident—‘until the week before the himself said that the Prime Minister, when election and never had a sense that the origi- they were having the telephone conversation, nal advice was incorrect.’ That is what Mr adopted the practice of repeating aloud so Scrafton said 37 days later. Then, out of the that the four senior advisers who were with blue, three years later at a time when another him in his study at the Lodge could hear election was about to be called, Mr Scrafton what Mr Scrafton was telling him. So we changed his story in a material way and said, have Mr Scrafton saying, ‘I only told the ‘Well, I actually talked about three other sub- Prime Minister about the video in that first stantial matters—the still photographs, the telephone conversation and, as I was relating ONA report, and I told them the original re- this information to him, he repeated it aloud port about children overboard was wrong.’ so that others could hear him.’ Mr Scrafton Senator Jacinta Collins interjecting— was aware the Prime Minister was in the company of other people. Mr Scrafton never Senator BRANDIS—That is the evi- suggested that the Prime Minister’s reitera- dence, Senator Collins. The evidence is Mr tion of what he, Scrafton, was telling the Scrafton’s own words, 37 days after the Prime Minister was other than thorough and event, when he had no motive to lie and his accurate. sudden recollection of all these other topics, which he could not possibly have discussed The Prime Minister said the same thing: in a brief, subsequent 51-second telephone ‘All Scrafton told me about was the video.’ conversation—the only other telephone con- The four people in the room with the Prime versation that took place between those two Minister—the Secretary to the Cabinet, Mr

CHAMBER 18 SENATE Thursday, 9 December 2004 men on that evening. The conclusion of the They know that it did not happen and, after committee is absurd and against the weight three years, there has never been the faintest of the evidence. (Time expired) attempt at apologising to that group of peo- Senator BARTLETT (Queensland— ple and those people have never had a Leader of the Australian Democrats) (10.37 chance to put their case on the public record. a.m.)—I was a member of the Select Com- Over two inquiries we have had day after mittee on the Scrafton Evidence and also of day after day of hearings and evidence from the original Select Committee on a Certain all sorts of other people, but the people who Maritime Incident inquiry, known more col- were actually at the centre of the allegation loquially as the ‘children overboard inquiry’. have never had a chance to put their view on This, I guess, is ‘children overboard part 2’. I the public record. The disgrace is that, three would like to thank the committee secretary years later, not only do those people not have and staff for enduring this experience, for apologies but 14 of them, as I understand it, doing so with professionalism and politeness are still locked up on Nauru as we speak— and for producing a capable report at the end three years later, despite never having com- of it. This affair has been called a lot of mitted a crime. That is the outrage here. things: ‘children overboard’, ‘truth over- Everybody would have their view about board’, ‘sanity overboard’. We have seen a whether or not the Prime Minister misin- couple of examples of ‘perspective over- formed the Australian people or deliberately board’ just in the last couple of contributions. did not correct the record. There is now suf- The thing that is frustrating me more and ficient evidence out there for people to form more is that the real, forgotten group of peo- their own opinion on that, but the full story is ple in this issue are the refugees who were on not out there because the government con- that boat who were slandered by this gov- tinued to prevent people from appearing. But ernment, by the Prime Minister, by a range the fact is that there is sufficient evidence for of other ministers, with a grossly false alle- people to form a reasonably informed opin- gation and who have never received any ion, and people’s opinions will differ. Mine apology, despite the fact that the facts is that there is no doubt that Minister Reith show— was aware that the public were being misled Senator Brandis—Why don’t you talk and did nothing to correct the record. Fol- about the facts, Senator Bartlett? lowing the extra evidence from Mr Scrafton, I think it stretches the very edges of credibil- Senator Ferguson interjecting— ity to suggest that the Prime Minister was not Senator Brandis interjecting— aware, at least by the stage of his Press Club Senator BARTLETT—And you try to address, before the election. even talk about it and all you cop is a volley That is my opinion. The fact is that I of abuse from the government senators, who found Mr Scrafton to be quite a credible wit- say, ‘Talk about the facts.’ The central, No. 1, ness. We saw a very skilfully performed undeniable fact that not even the government typical barrister’s trick from Senator Brandis, members would dispute is that those refu- trying to look for any tiny discrepancy in Mr gees on that boat did not throw any children Scrafton’s evidence and then blowing it up overboard. They were slandered by this into some huge irrelevant saga to draw atten- Prime Minister saying, ‘We do not want peo- tion away from the basic consistency of Mr ple like that in this country’; they were slan- Scrafton’s evidence and the basic corrobora- dered by the other government ministers. tion that Mr Scrafton received from people

CHAMBER Thursday, 9 December 2004 SENATE 19 he said he told it to three years ago when he The other thing that clearly came out in this had no reason to make that up at the time. inquiry—and I have drawn attention to this People corroborated what he said. This is a in my additional comments—is that, if the person who had nothing to gain by making committee originally had pressed the matter these statements now. He was well aware and subpoenaed Mr Scrafton and others— that, in putting his head up, he was going to Senator Brandis—Don’t blame us! It was get it kicked—and he got it kicked and he the Labor senators who voted against your will continue to get it kicked by this gov- motion, Andrew; we didn’t. ernment and have his reputation slurred and Senator BARTLETT—I think I will slandered. make that point in a moment—thank you. He Senator Ferguson—He might have had a had specifically said—and I have drawn at- political motive, Andrew. tention to it—that, if he had been subpoe- Senator Brandis—Do you think he might naed originally under the ‘children over- have had a political motive? board’ inquiry back in 2002, he would have Senator BARTLETT—We will get the appeared. Indeed, his advice, provided to me sort of barrage of abuse and yelling that we by the Defence Legal Service at the time, get even in this sort of situation when you try was that he would have had no alternative to simply present an opinion. All you cop is other than to appear before the Senate if he yelling and abuse. Mr Scrafton knew that had been subpoenaed. I would suggest that that was what he would get, and he will to that would probably mean that certain other some extent go down with that continually people, if they had been subpoenaed, would being put against his name. To that extent, I have given similar advice, and we would think he should be congratulated on having have also heard it from them. I think things the courage to put his hand up. would have been very different if we had heard from Mr Scrafton then, and people There is a legacy here. The legacy and the would have been required at the time to re- value of this situation is not whether or not spond to whatever Mr Scrafton put forward. the Senate had made a finding that somebody The extra information coming out in the con- lied or somebody did not. I do not really text of that inquiry back in 2002 would, I think that is the value of this. But the real think, have clearly led to further information value of this process of the two inquiries is coming out, and it would have been much that I think it will be much more difficult in more difficult for other people to resist ap- the future for governments to get away with pearing before the inquiry. Mr Reith is a spe- the sorts of things that this government did in cial case—I would not have been surprised if 2001 in deliberately not correcting the record he had fought it all the way to the High on a significant issue when they knew that it Court. I am not necessarily suggesting that was false, hiding behind ministerial staff, the Senate should do that, but I think it was a conscripting the Public Service or significant grave mistake on the part of the original sections of a department in that aim and put- committee not to subpoena Mr Scrafton and ting all of them in an impossible position. the other ministerial staffers to appear. That will be far more difficult in the future. Senator Brandis—Whose fault was that, I hope that in the future Senate commit- Andrew? tees will also be more willing to push the envelope in getting important witnesses to Senator BARTLETT—As Senator Bran- appear in areas of sufficient public interest. dis encourages me to remind the Senate, that

CHAMBER 20 SENATE Thursday, 9 December 2004 was because of the Labor members of the backwards and forwards about the politics, committee not supporting my motion within but I think there has been a clear step for- the committee to move for subpoenas to be ward. Indeed, another Senate committee— issued. I have said that the government mem- the Senate Finance and Public Administra- bers stood back, vacated and allowed the tion Committee—has also done an inquiry Labor members to decide whether or not— and made some recommendations into this Senator Brandis interjecting— area. So those people, particularly Mr Scraf- ton on showing his courage, should be con- Senator BARTLETT—Yes, you stood gratulated. back, you abstained and you allowed the La- bor members to decide whether or not to step The bottom line is that the refugees have up to the plate. Labor members did not step never had their side of the story told. Many up to the plate, so I was left at the plate on of them are now in Australia on temporary my own and the subpoenas did not happen. protection visas and they still have uncer- The real tragedy is that that did not happen, tainty because they do not know whether or because—as we have seen from Mr Scrafton not they will end up being forced back to himself—he would have appeared. It would Iraq in the future. There are still, three years have been far better, I think, for all sides in later, 14 people imprisoned on Nauru. That is this debate—and for Mr Scrafton himself, in a disgrace. Whatever you might think about hindsight—if that had happened and if he the Prime Minister’s honesty, the fact that he had appeared and made his statements at that is willing to allow people who sought free- time and answered flow-on questions that dom by escaping from Nauru— would undoubtedly have arisen. That did not Senator Ferguson—There are no refu- happen and I hope it will be a lesson to fugees! ture Senate committees. I am not saying we Senator BARTLETT—Probably some of should subpoena everybody and anybody, by them are refugees, because the Minister for any means, but when it is sufficiently seri- Immigration and Multicultural and Indige- ous—as I believe this was—and when there nous Affairs just last week reassessed some is sufficient deliberate obstruction by the of them and found a bunch of Iraqis—27 of government then it should be pursued. So I them—are indeed refugees, and they will hope one legacy of this is that Senate com- come here. Why have they been locked up mittees in future will be willing to push the for three years on Nauru before they finally envelope a bit further in trying to uncover get to come here? That is the real outrage, government obstructionism and trying to and that is the peak issue. (Time expired) uncover the truth from all sides. Senator FERGUSON (South Australia) I think another legacy of this, part of (10.47 a.m.)—Having listened to Senator which Mr Scrafton has to be given credit for, Bartlett’s contribution to this debate, I rise to is that future governments will find it harder support the comments that were made by to hide behind a smokescreen of ministerial Senator Brandis earlier, where he explained staff and the Public Service. I do not say they in detail why we could not possibly agree will not keep trying to do it—I am sure they with the findings that were made by the ma- will find ways to do it—but they will find it jority of the members of the committee, in- harder to do a direct repeat of this sort of cluding Senator Bartlett. instance. So that is a real and positive out- Senator Brandis—Findings based on no come from these inquiries. People can argue evidence!

CHAMBER Thursday, 9 December 2004 SENATE 21

Senator FERGUSON—Correct. There is the events that took place when, as Senator just one thing that I really want to stress at Brandis said, just 37 days after the supposed the outset here, and that is that one thing that event he had a very clear recollection of was never questioned, and never questioned events that took place and he told a totally by the committee, was the timing of Mr different story to Ms Jennifer Bryant in the Scrafton’s announcement and the timing of conducting of the Bryant inquiry? That is the his letter to the Australian. Senator Bartlett key. If he had a clear recollection 37 days and others have said Mr Scrafton had no mo- after the event, which Miss Bryant took tivation for doing this, except to put himself down in conducting her inquiry, how on in the hot seat. earth can we expect to believe that some Senator Brandis—If you believe that three years later, when he revises his state- you’d believe anything! ment, revises his views, he has no clear recollection of how many phone calls he made, Senator FERGUSON—I agree. If you although he did insist to Mark Colvin that he believe that, you would believe anything, had made three— Senator Brandis. Obviously, Mr Scrafton had plenty of motivation for writing this letter to Senator Brandis—He had a perfectly the Australian. This is a man who, once we clear recollection that he had made three and had got to the stage of having an inquiry, another perfectly clear recollection that he admitted lying in giving evidence. Yet we made two. have a situation where the majority of the Senator FERGUSON—He absolutely in- committee found Mr Scrafton’s evidence sisted he made three, and then later on he credible. says, ‘Perhaps I was wrong.’ He says, ‘I have Senator Jacinta Collins—No, we didn’t a clear recollection I made three,’ and then find that! later on he says, ‘Well, I was wrong.’ The majority report talks about his lack of cer- Senator FERGUSON—I will read what tainty. I think that is about the most kind you said in your finding. You found his claim thing that anybody could ever say about his that he ‘told the Prime Minister that there evidence. Lack of certainty: that is the most was no evidence’ very credible. Can I say charitable definition you could put on any of that, by the end of the one day of hearing that the evidence that he gave to us, because in we had with Mr Scrafton and other wit- fact, right from the start, even when he was nesses, I could not find anything credible questioned in the morning and later in the about Mr Scrafton at all. When he was day, his story changed as he went along. pressed at the end of the day— There is only one thing that is quite clear Senator Brandis—It’s hard to find some- from this report—that is, every public state- thing credible about somebody who starts off ment made by the Prime Minister has been by saying he’s a liar. found to be true. The Prime Minister said, ‘I Senator FERGUSON—When he was clearly recollect there were only two phone summing up at the end of the day on all of calls.’ Mr Scrafton said he could not remem- the things that had been put to him during the ber how many phone calls there were at all. day, eventually he had to admit, ‘Yes, what I He thought there were three, he insisted there did say was untrue.’ Those were his own were three and now he says, ‘I’m not sure; it words: ‘What I said was untrue.’ Why on could have been several.’ We have clear rec- earth should Mr Scrafton, after three years, ollections. The Prime Minister’s public change the story and change his version of

CHAMBER 22 SENATE Thursday, 9 December 2004 statements have all been corroborated by aware that we would put so much effort into other people. At no stage anywhere has any finding out the detail, which we were able to statement made by Mr Scrafton been cor- question him on that day. When confronted roborated by any other person—not one. So with the final evidence that there were only we have Mr Scrafton’s word—whether it be two phone calls—not three—he became his first version, his second version or his more and more reticent about committing third version. He said, ‘I didn’t tell the truth,’ himself to anything. and yet the majority of the committee is ask- It is important for all those who read this ing us to believe that this man has given us a report to spend some time reading the report credible story when, on every occasion, of the government senators, which draws every public statement that the Prime Minis- together all of the facts—not just some of ter has made has been proved to be accurate them—and sets out the transcript so that and correct. people can read for themselves exactly what So when you come to decide for your- Mr Scrafton said when he was giving evi- selves about who is telling the truth and who dence before this committee. His own evi- is not, you can only come to one conclusion: dence belies any credibility that might be that the Prime Minister told the truth exactly placed on any of the things he said over the as it was related to him. Mr Scrafton started three years. Certainly Senator Brandis and I, off with one story and has been changing it in listening to everything, have been able to ever since. He waited three years after mak- establish that, when a person admits to a ing his original statement to the Bryant in- committee he is lying, for anybody then to quiry before he made a public statement in say that they find his evidence credible is the pre-election environment, when, our col- beyond belief. I want to read into the Han- leagues opposite might suggest, he had no sard record the final part of our government motivation. senators’ report. A journalist asked the Prime I refuse to believe that Mr Scrafton had no Minister: motivation. I think he had plenty of motiva- You said you had two conversations with Mr tion to make this statement, which was be- Mike Scrafton. cause it was the pre-election period, when The Prime Minister said: other so-called ‘eminent’ Australians did so. Yes, that is my recollection. I say ‘so-called’ because I do not know how The journalist said: you got on that list; I think if you happened to sign on to a letter it meant you became an What was the second one that day? Why did you eminent Australian. Mr Scrafton saw this and feel you needed to ring him back? decided: ‘This is a time when I can have my The Prime Minister said: little dig, too. I can make my contribution Why did I feel ... well, look, Alex. I had two con- towards trying to defeat the incumbent gov- versations with him and to my recollection— ernment.’ I am sure that is the only motiva- and you’re asking me—I mean, my recollection tion Mr Scrafton had. is, I had a reasonably lengthy one and then I had a I do not think Mr Scrafton realised that, in very short one. As for the second one, it was probably to tell him to put the video out. making his statement, there were people who would question as intensely—which my col- And that was the extent of the 51-second league Senator Brandis did that day—the conversation. That explanation is corrobo- change in his story. I do not think he was rated not only by the telephone records that were produced but also by Mr Scrafton’s

CHAMBER Thursday, 9 December 2004 SENATE 23 original versions of the event. If people read their knowledge of these events involving the evidence carefully, they can only come to the Prime Minister and his staff both during the conclusion which government senators and after the 2001 election. We saw again came to—and that is that Mr Scrafton was during the deliberations of the Scrafton not a reliable witness. The evidence that he committee how the government works. gave before the committee was not credible. When Mr Scrafton blew the whistle on the He admitted to lying. Yet the majority of Prime Minister and the government, he was committee members suggest that Mr Scraf- subjected to personal attack. That is standard ton is a credible witness and that, for some operating procedure for the government. The reason or other, the Prime Minister was not main approach of the government was to telling the truth. Nothing could be further attack the credibility and the motives of Mr from the truth. Mr Scrafton’s own evidence Scrafton. It seemed to me—and I think it is enough for us to come to the finding that would have done to any reasonable person— he is not a credible witness and that his that Mr Scrafton had no reason to make up statements should not be believed. We do not his story; the only possible benefit he might know which one of his various statements he have got from making these matters public now believes to be the truth. was in some way to clear his conscience. Senator FAULKNER (New South Wales But, before the Scrafton committee sat, (10.56 a.m.)—I welcome the opportunity to phone records of the government somehow speak on the report of the Select Committee happened to find their way into the hands of on the Scrafton Evidence. Senators would be Senator Brandis. That is another way that the aware that the ‘children overboard’ issue has Howard government does business. We do been a festering sore for the Howard gov- not know who provided those phone records. ernment. It typifies the way the Howard gov- We do not know anything about their accu- ernment does business. I am pleased that the racy. The person or persons who provided Scrafton committee has been able to fit some those phone records could not be called to more of the pieces about the ‘children over- give evidence to the committee because board’ issue into place. We now have more Senator Brandis refused to identify who they knowledge about what the Prime Minister, were, so we could not test the evidence with Mr Howard, former Defence Minister Mr them. We could not have the evidence in re- Reith and members of their staff at the time lation to those alleged phone records tested. knew about the ‘children overboard’ inci- But that did not seem to be of any concern at dent. We now know more about the govern- all to Senator Brandis. I have to admit that I ment’s deceit during the 2001 election cam- like Senator Brandis. paign. We now know conclusively that the Senator Jacinta Collins—No! Prime Minister knew that the ‘children over- Senator FAULKNER—I do. I admire board’ claims were false when he misled the Senator Brandis for turning up to the com- Australian people at the National Press Club, mittee. In fact, I would award him a gold just two days before the 2001 poll. We know medal for hide and effrontery for turning up more, as a result of the Senate Select Com- to the Senate Select Committee on the Scraf- mittee on the Scrafton Evidence, about the ton Evidence to question Mr Scrafton’s mo- mendacity and deceit of the Howard gov- tives and challenge Mr Scrafton’s credibility. ernment. We know more about the intimida- I would award Senator Brandis a gold medal tion of public servants—public servants for hide. I would award Senator Brandis that afraid to tell even internal inquiries about

CHAMBER 24 SENATE Thursday, 9 December 2004 medal because of what he said about the Senator FAULKNER—The cage had a Prime Minister, who was the other key perspex or glass front. The other rodent in it player in this matter. It takes a special was in a wheel. I do not know whether or not amount of barefaced hypocrisy to turn up at you call these things ‘rat wheels’. It was run- a committee hearing and accuse Mr Scrafton ning around and around in ever-decreasing of being a liar. Senator Brandis did this at a circles, and it reminded me of Senator Bran- time when the national newspapers in this dis’s parliamentary career after what oc- country were full of ‘rodentgate’. We heard curred with the Scrafton committee and his Senator Brandis’s defence of ‘rodentgate’. comments about the Prime Minister. I He said, ‘I didn’t call the Prime Minister a thought it was a metaphor for the work of the lying rodent.’ Do you know what his defence Scrafton committee and Senator Brandis. was? He said he just called him ‘the rodent’. Anyway, I do not know whether it was just That was his defence: ‘I didn’t call him a word association, but even on the weekends I lying rodent. I just called him the rodent.’ cannot get away from Senator Brandis and The use of the definite article was apparently the work of the Scrafton committee. The very significant. clear message here is that a witness of credi- A couple of weekends ago I went into a bility has exposed the Australian Prime Min- pet shop, as I sometimes do. Our cat Bill has ister, Mr Howard, for what he is. (Time ex- just celebrated his 105th birthday. In this pet pired) shop I saw a sign marked ‘rodents’ and fea- Question agreed to. turing an arrow. It must have been some BUSINESS word association thing, but my mind imme- Consideration of Legislation diately went—for some reason or other, on the weekend—to Senator Brandis. For some Senator KEMP (Victoria—Minister for reason or other, I followed the sign. There in the Arts and Sport) (11.07 a.m.)—by leave— this pet shop was a cage. In the cage were I move: two rodents. They were actually rats, but That the provisions of paragraphs (5) and (8) they were in the rodents section. There was of standing order 111 not apply to the Higher one rodent on the bottom of the cage. You Education Legislation Amendment Bill (No. 3) could say it was as still as a mouse—excuse 2004, allowing it to be considered during this period of sittings. the pun. It was quite still. I thought to myself, ‘Aha, a lying rodent.’ Question agreed to. Senator Kemp—Madam Acting Deputy Senator KEMP—I table a statement of President, I raise a point of order. We are reasons justifying the need for this bill to be well used to the contributions of someone considered during these sittings and seek whose own colleagues refer to him as ‘Dr leave to have the statement incorporated in Frankenstein’, but the use of quotations to Hansard. impugn the reputation of a parliamentarian is Leave granted. not acceptable. Senator John Faulkner should The statement read as follows— be brought to order. Purpose of the Bill The ACTING DEPUTY PRESIDENT The Bill will make amendments to the Higher (Senator Crossin)—There is no point of Education Support Act 2003 and the Higher Edu- order, Senator Kemp. cation Support (Transitional Provisions and Con- sequential Amendments) Act 2003 to enable the

CHAMBER Thursday, 9 December 2004 SENATE 25 provision of OS-HELP assistance, cross- Royal Melbourne Institute of Technology as institutional study, the repayment of advances and Commonwealth supported students, under an special purpose grants, and other technical ad- agreement with the Department of Health and justments to enhance the implementation of the Ageing. higher education reforms; amend funding cap It is also important that the Australian National amounts in Part 7 of the Australian Research University Act 1991 be amended to give the Min- Council Act 2001 to update forward estimates; ister the flexibility to consider appointments to and make minor amendments to the Australian the ANU Council in a timely and appropriate National University Act 1991. manner. Reasons for Urgency (Circulated by authority of the Minister for Edu- It is important that the proposed amendments to cation, Science and Training) the Higher Education Support Act 2003 and the HIGHER EDUCATION LEGISLATION Higher Education Support (Transitional Provi- AMENDMENT BILL (No. 3) 2004 sions and Consequential Amendments) Act 2003 are passed in the 2004 Spring sittings given that First Reading higher education providers are implementing Bill received from the House of Represen- several complex reforms and new programmes tatives. towards the end of 2004 and require certainty in the legislative framework before the beginning of Senator KEMP (Victoria—Minister for the 2005 calendar year. Also, students who will be the Arts and Sport) (11.07 a.m.)—I move: seeking Commonwealth assistance in 2005 re- That this bill may proceed without formalities quire accurate information to be provided to them and be now read a first time. before the beginning of the 2005 calendar year. Question agreed to. Delay in passage of this Bill until the Autumn Bill read a first time. sittings of 2005 will have a significantly negative impact on higher education providers and stu- Second Reading dents. Several of the issues involving student Senator KEMP (Victoria—Minister for support may become politically sensitive if the Arts and Sport) (11.08 a.m.)—I move: amendments are not passed by the beginning of 2005, as thousands of students may be disadvan- That this bill be now read a second time. taged. In particular, the cross-institutional study I seek leave to have the second reading provisions are highly sensitive, as students al- speech incorporated in Hansard. ready enrolled in this manner may inadvertently cease to become Commonwealth supported in Leave granted. 2005 if the amendments are not made. Similarly, The speech read as follows— the OS-HELP provisions are necessary to enable HIGHER EDUCATION LEGISLATION students to access OS-HELP loans in 2005. AMENDMENT BILL (No. 3) 2004 There may also be financial implications to the I am pleased to be able to announce to honourable Commonwealth through the non-repayment of Senators the final set of higher education legisla- advances and special purpose grants. tion amendments for 2004. It is important that the proposed amendments to This Bill makes two important funding adjust- the Australian Research Council Act 2001 (ARC ments. It will amend the maximum funding Act) in the Bill are passed in the 2004 Spring amounts under the Commonwealth Grant Scheme sittings to enable the ARC to be funded at the for 2005 and 2006 to continue to provide places correct levels for 2005. It is also important that for Commonwealth supported students in the area the annual appropriation amounts for the Com- of radiation oncology at the University of New- monwealth Grant Scheme be amended to provide castle and the Royal Melbourne Institute of Tech- funding for radiation oncology places beginning nology. This funding was previously made avail- in 2005 at the University of Newcastle and the

CHAMBER 26 SENATE Thursday, 9 December 2004 able by the Department of Health and Ageing and Ordered that the resumption of the debate will now be provided by my portfolio. be made an order of the day for a later hour. The Bill also updates the annual appropriation AUSTRALIAN PASSPORTS BILL 2004 under the Australian Research Council Act 2001, to reflect revised forward estimates. AUSTRALIAN PASSPORTS (APPLICATION FEES) BILL 2004 As part of the implementation and consultation process for the new higher education reforms this AUSTRALIAN PASSPORTS Bill is a final opportunity to make some technical (TRANSITIONALS AND enhancements to the primary legislation and re- CONSEQUENTIALS) BILL 2004 spond appropriately to issues raised by the sector First Reading before the end of 2004. As part of the Australian Government’s ongoing Bills received from the House of Repre- consultation with the higher education sector, this sentatives. bill will allow Higher Education Providers to Senator KEMP (Victoria—Minister for continue to operate their summer schools as they the Arts and Sport) (11.09 a.m.)—I move: do now. This is an important measure which al- That these bills may proceed without formali- lows students to fast-track their course or make ties, may be taken together and be now read a up for a failed unit of study. first time. The Bill also makes amendments to the Higher Question agreed to. Education Support Act 2003 to enhance the implementation of some of the higher education Bills read a first time. reforms. A number of these amendments are of Second Reading particular benefit to students. Senator KEMP (Victoria—Minister for The Bill will extend access to assistance under the the Arts and Sport) (11.09 a.m.)—I move: OS-HELP scheme. OS-HELP is an important new programme that will offer students loans of up to That these bills be now read a second time. $5,000 per six month study period to finance I seek leave to have the second reading overseas study. The Bill will extend eligibility for speeches incorporated in Hansard. this programme to include study undertaken by students at an overseas campus of an Australian Leave granted. higher education provider. This will assist stu- The speeches read as follows— dents undertake overseas study while also main- AUSTRALIAN PASSPORTS BILL 2004 taining the continuity of their studies at their chosen institution. The Bill will also extend access to The package of Australian passports legislation the programme to eligible Commonwealth sup- will provide a modern legal structure to underpin ported students at all Australian higher education our world-class passports system. It will replace providers. the Passports Act 1938. The Bill will also allow students more time to This package was passed by the House of Repre- submit their requests for Commonwealth assis- sentatives on 4 August but was not debated in the tance by providing that such requests are not re- Senate and lapsed when Parliament was pro- quired until the census date. rogued. The bills re-introduced today are the same as the lapsed bills with the exception of a Full details of the measures in the Bill are con- few amendments to the Australian Passports Bill, tained in the explanatory memorandum circulated which I will highlight. to Senators. In summary, and most importantly, the legislation I commend the Bill to the Senate. will ensure Australia and Australian travellers are Debate (on motion by Senator Buckland) protected by tougher laws. adjourned.

CHAMBER Thursday, 9 December 2004 SENATE 27

The Australian Passports Bill will do this in a - in the case of the biometric, the photograph number of ways. which is already collected with the standard application It will increase penalties for passport fraud up to A$110,000 or a 10 year jail term from $5,000 or 2 • the purpose for which it may be used years jail in the current Act. - in the case of a photograph, to assist in identify- The bill will introduce an improved mechanism ing fraudulent passport applications and detect- for the refusal or cancellation of passports of an ing fraudulent use of a passport. Australian in cases involving specified serious This amendment is based on constructive discus- crimes. sions with the Opposition during the last Parlia- ment. These crimes will include child sex tourism, child abduction, child pornography, sexual slavery, The Government has consistently emphasised the drug trafficking, people smuggling and terrorism. need to introduce these technologies in a manner which maintains community confidence in the This improved mechanism can operate: protection of their privacy. This change under- • when a person is suspected of being likely to lines that philosophy. engage in a serious crime; Another important element in the passports sys- • when a person has been charged with a seri- tem is children’s passports. ous crime; In some circumstances, where there is a dispute • or when a person has been sentenced for a between parents about whether their child can serious crime. travel internationally, officers of the Department As the bill makes clear, in these circumstances it of Foreign Affairs and Trade are required under is the responsibility of competent authorities, the current Act to make decisions to resolve the such as law enforcement agencies, to assess that a dispute. person should be prevented from travelling. The The bill proposes that, in such cases, a declaration person’s passport would then be refused or can- may be made that the matter should be dealt with celled to complement the law enforcement objec- by a court. tives. I should also like to note, for the record, that the The bill contains a package of measures aimed at Government has made some other minor techni- minimising the problems caused by lost and sto- cal amendments to the text of the bill which len passports. These measures will complement passed the House on 4 August, in addition to the the arrangements I announced during the recent important change I have already detailed. APEC Joint Ministerial Meeting on trialling a The re-introduced bill clarifies that a passport Regional Movement Alert system. The trial will may be cancelled ‘administratively’ when a re- enable United States and Australian border offi- placement is applied for, as well as when the re- cials to make immediate checks of passenger placement is issued. records and lost and stolen passport information. Two other changes cover privacy provisions. Finally, the bill will enable us to combat identity fraud through the use of emerging technologies The first clarifies arrangements for requesting such as facial biometrics for ePassports. I should information from private sector organisations. like to draw attention to an amendment made to The second removes the specific reference to the text of the bill since the House of Representa- disclosure of passport information for national tives which passed the bill on 4 August. security purposes. This ground is specifically covered under the Privacy Act. The provisions of the re-introduced bill now require that the minister’s determination for the use A final change more closely aligns the legislation of technologies such as facial biometrics must with administrative law principles. The lapsed bill specify: set out a detailed regime for notice of decisions, repeating the provisions in the 1938 Act. These • the nature of the personal information to be provisions have been removed as they overlapped collected

CHAMBER 28 SENATE Thursday, 9 December 2004 with provisions in the Administrative Appeals Second Reading Tribunal Act 1975. Senator KEMP (Victoria—Minister for ————— the Arts and Sport) (11.10 a.m.)—I move: AUSTRALIAN PASSPORTS (APPLICATION That this bill be now read a second time. FEES) BILL 2004 I seek leave to have the second reading Each year the Australian passports system pro- speech incorporated in Hansard. vides 1 million Australians with passports. It is important that this substantial operation be put on Leave granted. a sound legal footing. The Australian Passports The speech read as follows— (Application Fees) Bill will establish a simpler structure to deal with changes in costs and valid- TAX LAWS AMENDMENT (LONG-TERM ity of passports. The text of this Bill is exactly the NON-REVIEWABLE CONTRACTS) BILL 2004 same as the bill which passed the House on This Bill amends the A New Tax System (Goods 4 August. and Services Tax Transition) Act 1999. ————— It provides for the treatment, for GST purposes, of long-term non-reviewable contracts after the AUSTRALIAN PASSPORTS (TRANSITIONALS AND CONSEQUENTIALS) GST-free transition period ends on 1 July 2005. BILL 2004 Pre-existing contracts that have not had a review opportunity before 1 July 2005 will become sub- The text of the Australian Passports (Transitionals and Consequentials) Bill is exactly the same as ject to GST from that date. The amendments put in place a mechanism to negotiate a pricing ad- the bill which passed the House on 4 August. On a practical note, I should make clear that pass- justment with the recipient of the supplies to take into account the impact of the New Tax System ports issued under the 1938 Act will remain valid. changes. Ordered that further consideration of the As a result of the negotiation, the parties may second reading of these bills be adjourned to adjust the price, if necessary through arbitration. the first day of the next period of sittings, in Alternatively, the recipient of the supply may accordance with standing order 111. elect to pay the GST or may become liable for it TAX LAWS AMENDMENT (LONG- if he or she does not accept the result of the arbi- TERM NON-REVIEWABLE tration. CONTRACTS) BILL 2004 Three Imposition Bills are also being introduced as part of this package to allow the imposition of First Reading GST on recipients in certain circumstances. Bill received from the House of Represen- Full details of the measures in this Bill are con- tatives. tained in the explanatory memorandum. Senator KEMP (Victoria—Minister for I commend this Bill. the Arts and Sport) (11.10 a.m.)—I move: Ordered that further consideration of the That this bill may proceed without formalities second reading of these bills be adjourned to and be now read a first time. the first day of the next period of sittings, in Question agreed to. accordance with standing order 111. Bill read a first time.

CHAMBER Thursday, 9 December 2004 SENATE 29

A NEW TAX SYSTEM (GOODS AND imposition bills in the package and will have the SERVICES TAX IMPOSITION effect of imposing the tax on recipients of taxable (RECIPIENTS)—GENERAL) BILL 2004 supplies to the extent that it is neither a duty of customs nor a duty of excise within the meaning A NEW TAX SYSTEM (GOODS AND of section 55 of the Constitution. SERVICES TAX IMPOSITION Separate imposition bills are necessary because of (RECIPIENTS)—EXCISE) BILL 2004 the requirement under the Constitution that a law A NEW TAX SYSTEM (GOODS AND imposing taxation shall deal only with one subject SERVICES TAX IMPOSITION of taxation and laws imposing customs duty and (RECIPIENTS)—CUSTOMS) BILL 2004 laws imposing excise duty deal only with those duties. First Reading Full details of the measures in the bill are con- Bills received from the House of Repre- tained in the explanatory memorandum to the Tax sentatives. Laws Amendment (2004 Measures No. 7) Bill Senator KEMP (Victoria—Minister for 2004 circulated to honourable members. the Arts and Sport) (11.11 a.m.)—I move: I commend the bill to the Senate. That these bills may proceed without formali- ————— ties, may be taken together and be now read a A NEW TAX SYSTEM (GOODS AND first time. SERVICES TAX IMPOSITION Question agreed to. (RECIPIENTS)—EXCISE) BILL 2004 Bills read a first time. This bill is part of a package of four bills, with the Tax Laws Amendment (Long-Term Non- Second Reading Reviewable Contracts) Bill 2004 and two other Senator KEMP (Victoria—Minister for bills. the Arts and Sport) (11.11 a.m.)—I move: Tax Laws Amendment (Long-Term Non- That these bills be now read a second time. Reviewable Contracts) Bill 2004 amends the I seek leave to have the second reading goods and services tax law to revise the way that the law will apply in the case of long-term non- speeches incorporated in Hansard. reviewable contracts when the GST-free transition Leave granted. period ends on 1 July 2005. The speeches read as follows— In some situations, the goods and services tax A NEW TAX SYSTEM (GOODS AND may be imposed on recipients of supplies made SERVICES TAX IMPOSITION under these contracts. This bill is one of three (RECIPIENTS)—GENERAL) BILL 2004 imposition bills in the package and will have the effect of imposing the tax on recipients of taxable This bill is part of a package of four bills, with the supplies to the extent that it is an excise duty. Tax Laws Amendment (Long-Term Non- Reviewable Contracts) Bill 2004 and two other Separate imposition bills are necessary because of bills. the requirement under the Constitution that a law imposing taxation shall deal only with one subject Tax Laws Amendment (Long-Term Non- of taxation and laws imposing customs duty and Reviewable Contracts) Bill 2004 amends the laws imposing excise duty deal only with those goods and services tax law to revise the way that duties. the law will apply in the case of long-term non- reviewable contracts when the GST-free transition Full details of the measures in the bill are con- period ends on 1 July 2005. tained in the explanatory memorandum to the Tax Laws Amendment (Long-Term Non-Reviewable In some situations, the goods and services tax Contracts) Bill 2004 circulated to honourable may be imposed on recipients of supplies made members. under these contracts. This bill is one of three

CHAMBER 30 SENATE Thursday, 9 December 2004

I commend the bill to the Senate. Surveillance Devices Bill 2004 ————— Aviation Security Amendment Bill 2004 A NEW TAX SYSTEM (GOODS AND Message received from the House of Rep- SERVICES TAX IMPOSITION resentatives agreeing to the amendment (RECIPIENTS)—CUSTOMS) BILL 2004 made by the Senate to the following bill: This bill is part of a package of four bills, with the National Water Commission Bill 2004 Tax Laws Amendment (Long-Term Non- Reviewable Contracts) Bill 2004 and two other SUPERANNUATION INDUSTRY bills. (SUPERVISION) AMENDMENT Tax Laws Amendment (Long-Term Non- REGULATIONS 2004 (NO. 2) Reviewable Contracts) Bill 2004 amends the Motion for Disallowance goods and services tax law to revise the way that Senator SHERRY (Tasmania) (11.13 the law will apply in the case of long-term non- a.m.)—I move: reviewable contracts when the GST-free transition period ends on 1 July 2005. That new Divisions 9.2A and 9.2B in item [10] of Schedule 1 to the Superannuation Industry In some situations, the goods and services tax (Supervision) Amendment Regulations 2004 (No. may be imposed on recipients of supplies made 2), as contained in Statutory Rules 2004 No. 84 under these contracts. This bill is one of three and made under the Superannuation Industry imposition bills in the package and will have the (Supervision) Act 1993, be disallowed. effect of imposing the tax on recipients of taxable supplies to the extent that it is a duty of customs. On behalf of the Labor Party, as their superannuation shadow minister, I am moving the Separate imposition bills are necessary because of the requirement under the Constitution that a law disallowance of a set of superannuation regu- imposing taxation shall deal only with one subject lations. It is Labor’s view that the implemen- of taxation and laws imposing customs duty and tation of divisions 9.2A and 9.2B of the regu- laws imposing excise duty deal only with those lations, which we are seeking to disallow and duties. which together prohibit a superannuation Full details of the measures in the bill are con- fund with fewer than 50 members from pro- tained in the explanatory memorandum to the Tax viding a defined benefit lifetime pension, is Laws Amendment (Long-Term Non-Reviewable not the appropriate manner in which to deal Contracts) Bill 2004 circulated to honourable with the tax, estate planning and other abuses members. that are possible under the current law. We I commend the bill to the Senate. are dealing with an issue on the last day of Ordered that further consideration of the the sitting of parliament. The debate is occur- second reading of these bills be adjourned to ring at a time later than I would have other- the first day of the next period of sittings, in wise preferred. We have had the election pe- accordance with standing order 111. riod intervening, which has consequently meant we are dealing with this matter later BILLS RETURNED FROM THE than I would have hoped. HOUSE OF REPRESENTATIVES The Labor Party is willing to support the Messages received from the House of first part of the regulations as set out in Representatives returning the following bills schedule 1 which provides that contributions without amendment: to accumulation funds must be allocated to a Telecommunications (Interception) Amend- member of a fund and that benefits in an ac- ment (Stored Communications) Bill 2004 cumulation fund be fully vested in a given

CHAMBER Thursday, 9 December 2004 SENATE 31 member. The relevant regulations deal with more targeted manner to achieve the same the avoidance they seek to regulate in an ap- end. propriate and directed manner with no effect An additional reason for prohibiting the on those small funds that do not engage in payment of defined benefit pensions in small the targeted abuse. funds—doubts whether small funds are able The original stated rationale for introduc- to guarantee a lifetime income stream—was ing divisions 9.2A and 9.2B was, firstly, to raised at the hearing by both IFSA and the prevent tax minimisation through what is Department of the Treasury. After consider- known as RBL compression—reasonable ing this argument, Labor takes the view that benefit limit compression—and, secondly, the personal nature of small self-managed the use of defined benefit pensions for estate funds—that is, the fact that the members and planning purposes. RBL compression is a the trustees are one and the same and control technique which enables some individuals to the investments of the funds—makes the exceed the pension retirement benefit limit— situation different from that of a large super- currently, just over $1.176 million; not an annuation fund where the trustee manages insignificant amount of money. That is the the fund’s investments on behalf of mem- maximum amount that can attract conces- bers. In these circumstances, it is reasonable sional tax treatment and, consequently, gain to take the view that if members of small a substantial tax advantage. We have an RBL funds are prepared to take this risk—and in order to ensure that there is a reasonable nothing is risk free—effectively with their cap on the taxation concessions available own money, they should be permitted to do through superannuation in this country. That so. is not an unreasonable approach. Treasury raised a secondary concern aris- Admittedly, the law as it exists provides ing from the possible inadequacy of funds to some opportunity for both tax minimisation pay a lifetime income stream and then a and estate planning purposes, but it is of flow-on consequence of a drain on the social concern that neither Treasury nor the tax of- security system because of the need to pay fice could produce any figures to indicate the the age pension to small fund members level of occurrence of these activities and of whose funds had failed through bad invest- the purported loss to revenue. I assume that ment. Evidence suggests that the number of Senator Murray is dealing with this matter on members of small funds who might find behalf of the Democrats, and I will get to the themselves in this position is very small— committee hearings shortly. In addition, there minuscule—that it would have an insignifi- is no evidence that the tax office has consid- cant impact on revenue, and that alternative ered using part IVA of the Income Tax As- term income streams may also result in a sessment Act to attack the practice. It is a recipient having insufficient funds at the end concern that, with the exception of IFSA and of the term and be forced onto a part age Treasury, all other witnesses who attended pension anyway. the Senate committee hearings on this provi- Another argument that has been raised, sion believe that regulations 9.2A and 9.2B again by IFSA and Treasury, is that of the were poorly drafted and went beyond what level playing field. The view taken by these was necessary to prevent the abuse that they bodies is that because the members of large were aimed at preventing. It was agreed at funds have to purchase a lifetime income the Senate committee hearing that the regula- stream, ensuring the members of small funds tions could be easily redrafted in a fairer and

CHAMBER 32 SENATE Thursday, 9 December 2004 must do so creates a level playing field by tion funds. Immediately, there were exten- putting them in the same position as mem- sive complaints from persons who could be bers of large funds. Labor identifies two affected by these new regulations. problems with this argument. Firstly, it will We had the May budget announcement not create a level playing field as there re- and then on 1 June 2004 the former minister, main many fund members in large defined Senator Coonan, in media release CO47/04, benefit funds who do not have to purchase an admitted that the government had got the income stream from a financial institution. regulations wrong because it had failed to Secondly, small fund members will find realise that a new pension product it was themselves burdened with two sets of fees: hoping to encourage people to enter into the cost of running their small fund plus the would not be available until four months cost that will be payable to another financial after the announced changes had taken ef- institution from which they must buy a life- fect. The government, in its haste in the time income stream. budget announcement, suddenly realised that According to witnesses at the hearings, its attempt to redirect people to a new pen- only four organisations at that time provided sion product could not work because the new a lifetime pension. It is not a competitive pension product would not be available for market. They are not easy products to find, four months. and it can be anticipated that the costs of But the story gets worse. The then minis- commercial lifetime income streams will be ter, Senator Coonan, on 23 June in media subject to a raft of fees, charges and commis- release CO54/04 then had to announce a sec- sions in addition to the existing fees and ond backdown and revision—what she called charges that already exist within small super- a ‘clarification’—of the government’s posi- annuation funds. There was also concern tion. The press release announced, firstly, about the uncertainty for small superannua- that the regulations would take effect from tion fund members if regulations 9.2A and 30 June 2005, not 11 May 2004, and, sec- 9.2B stand. They are faced with the uncer- ondly, because of the outcry that had oc- tainty as to what in fact the rules for lifetime curred, that a review would be held to exam- pensions will be, not only in the immediate ine whether or not a DIY, do-it-yourself, su- future but also in the long term. perannuation fund could continue to operate I will deal with the process. This measure a defined benefit pension. It was conven- that Labor is seeking to disallow highlights iently announced that this review would be the lack of due process—in fact, it highlights concluded by April 2005, obviously well the sheer incompetence—of the government after the election. There may or may not be in its attempt to introduce and change regula- some further changes to the regulations in tory practice in this way. The story goes back this area some time after April 2005. to the May budget this year when the former We had two major backdowns by the min- minister, Senator Coonan, in those budget ister on behalf of the Liberal government. measures, announced a raft of regulatory This highlights the incompetence, the lack of changes in respect of DIY funds to tackle due process and the lack of thought given to what was claimed to be a level of abuse. We the consequences of the regulations that were are yet to see what the identified specific announced in the May budget. This is an area savings are, but this was the claim made in where you have to be very careful, because the budget and there was a series of regula- you are changing the regulations for the tions enacted in the area of DIY superannua-

CHAMBER Thursday, 9 December 2004 SENATE 33 structure of superannuation products. Unfor- regulations relating to self-managed superannua- tunately, this is a government that certainly tion funds’ ability to pay lifetime and life expec- at times does not give due thought to the im- tancy pensions, but for what it is worth, here is pact on people’s lives and the necessary my two penneth worth. long-term planning that is required and that About three years ago my wife and I on advice set people entered into in order to purchase a up a SMSF as part of a review and subsequent post-retirement income product—in this change in strategy direction for some super investments we had. It was always our expectation case, a defined benefit pension. This is a when I finally retired—my wife isn’t working— government that talks the talk about the regu- that we would simply divide the amount of latory impact on small business in particu- money we had invested by our life expectancy at lar—and there are significant numbers of that time and supplement my other retirement small business people who have DIY super- incomes. The bulk of my retirement income annuation funds—but does not walk the would come from a combination of a DFRDB— walk. The government itself has admitted it that is, a defence forces benefit— did not give significant thought as to the and a PSS pension, both indexed. So the benefit consequences—it had to back down not once from our SMSF, while not critical, is important. I but twice—by announcing a review which is am disappointed, if not angry, that the govern- to report in 2005. ment has chosen to attempt to prevent us from What we have here effectively puts the setting up a lifetime or life expectancy pension, cart before the horse. We have regulatory despite this being written into our fund trust deed. I am 55 years of age next April and retirement changes made that impact on people looking would most likely still be three to four years be- forward to, and attempting to plan for, re- yond that, so taking advantage of the limited win- tirement then being subject to a review but dow of opportunity to retire before July? next there being no withdrawal of the regulations year is not really an option. until the review is completed. The govern- Thank you for listening. ment should have withdrawn the regulations What this highlights, regardless of what the until the review was completed. As I have individual concerned does finally determine said, this is putting the cart before the to do, is the lack of certainty. Here is an in- horse—admitting that the regulations are dividual approaching retirement and attempt- wrong but maintaining the regulations until ing to do some long-term planning for re- the review is completed. I predict that the tirement. Whatever the individual decides government will change the regulations ultimately to do, the rules have been funda- again after the review. That is what will hap- mentally changed by the regulations we are pen. This is putting people in an extraordi- seeking to disallow—and the rules may narily uncertain position. change again next year after the April review I have received numerous letters and is concluded. Labor is attempting to restore emails on this issue. I am going to read to the the status quo until the review is completed. Senate an email I received this morning from Then, if the government wishes to bring in a an Australian attempting to plan for their fresh set of regulations, by all means bring retirement. I do not have their permission to them in and we will deal with the regulations give the Senate their name. It is addressed to presented on their merits. But at least we me. It reads: would have had a thorough review of this I am not sure if this is the most appropriate forum issue. in which to lend my support to your objection to the government’s recent proposed changes to

CHAMBER 34 SENATE Thursday, 9 December 2004

There certainly is a level of abuse taking viduals into believing that they can put their place in small superannuation funds, but it money into a small superannuation fund and could not be identified by the Treasury al- invest in their own home, art collections and though they gave us some anecdotal exam- Swiss chalets. These are all legitimate con- ples. Senator Murray was not at that hear- cerns about small superannuation funds, but ing—which is not a criticism of him; I un- they are not the issue we are dealing with derstand the workload that we have to here today. It seems to me extraordinary that carry— the government would attempt to tackle a Senator Murray—It’s not my portfolio relatively confined issue in the manner in either. which it has. I urge the Australian Democrats to join with Labor to ensure the disallowance Senator SHERRY—It is not your portfo- of divisions 9.2A and 9.2B, to restore the lio, but you are still here to consider the mer- status quo and to reconsider this issue after its of Labor’s arguments. At the public hear- the completion of the review in April next ing in Melbourne on Monday, 23 July, it year. struck me that the ATO and the Treasury— and this is not a personal criticism of the of- Senator MURRAY (Western Australia) ficers involved—simply could not sustain the (11.33 a.m.)—In this debate on the disallow- argument that they were presenting. We ance of the Superannuation Industry (Super- asked for a quite detailed analysis of the vision) Amendment Regulations 2004 (No. sums of money and the level of risk involved 2) I am standing in for the Democrats’ port- and we could not obtain that information. If folio holder, Senator John Cherry. Although I the Liberal government is going to act in this suppose I have an intelligent interest in this capricious way—admit that it probably has it matter, I certainly cannot reach the levels of wrong and announce the review—the status expertise in superannuation which he carries quo should be maintained until such time as and which have contributed to great jousting the review is completed. with Senator Sherry before. I am certainly aware of other abuses in re- Senator Sherry—Don’t be modest. spect of small superannuation funds, which I Senator MURRAY—I should for the re- have to say are of a much more significant cord acknowledge that in my opinion Sena- nature. Barely a week goes by when I do not tor Sherry, as well as Senator Cherry, is one pick up a copy of the Financial Review and of those in the parliament who have a very see advertisements—false advertisements, I deep understanding of these matters. It is think—purporting that people can access incumbent on me to disclose that I do have their money through a small superannuation an interest in a self-managed superannuation fund. Clearly these ads are misleading, and I fund. That is on the record, but I will put it think ASIC is finally doing something about on the record again. I compliment the Labor it. Party on bringing on this disallowance mo- There is a level of fee abuse in respect of tion. Although they could have held it over small superannuation funds. Many small su- for a further 13 days, I think it is far better to perannuation funds contain balances that are get the certainty of this matter established very, very small—in the tens of thousands of and resolved. So that is a good thing, despite dollars—that incur very significant levels of it being a somewhat pressured day, as it is fees. These are significant issues. I am aware the last sitting day of the calendar year. that some people have been misleading indi-

CHAMBER Thursday, 9 December 2004 SENATE 35

The Australian Democrats are concerned for a small self-managed fund, partly be- that the integrity of the superannuation sys- cause they do not involve the annual actuar- tem is being and has been abused by the ial compliance costs associated with lifetime promoters of aggressive tax planning involv- pensions. The changes that have applied ing the use of small self-managed superan- since 20 September 2004 do increase the nuation funds. The Senate Economics Legis- options available to members of self- lation Committee’s inquiry did not quantify managed superannuation funds. We are also the extent of the abuse—I doubt that it concerned by the heavy selling of self- could—but did confirm to the Senate that managed superannuation by certain elements this abuse is occurring. The Democrats are of the financial sector, often to people whose generally supportive of any measures to balances are so low that the high manage- close tax abuse loopholes and we support ment fees are not justified. There is a clear regulations 5.04(2), 5.08 and divisions 7.1 need to educate investors with smaller super- and 7.2 which apply specifically to forfeiture annuation balances about the high costs and arrangements and allocation of contributions risks associated with self-managed funds. to reserves within accumulation funds. The In our opinion, the government’s budget application of divisions 9.2A and 9.2B in the night announcement of its intention to im- regulations, which apply to the provision of prove the integrity of the superannuation defined benefit pensions, has been more con- system by addressing a range of tax avoid- troversial. ance strategies was admirable. However, we The Democrats acknowledge that it is are concerned that simply removing the abil- more appropriate for lifetime pensions to be ity of small self-managed funds to pay life- paid from large superannuation funds that are time pensions unfairly reduces the options better equipped to deal with the inherent available to legitimate members of self- mortality, investment and liquidity risks. managed funds. Our preference would be to Having said that, we do not believe that life- correct the perceived tax avoidance opportu- time pensions should be necessarily pur- nities that have driven the marketing of life- chased from just the large life offices. We time pensions from self-managed superannu- obviously support a competitive market. In ation funds. Disallowance of the regulations our opinion, the integrity of the taxation sys- would allow this tax avoidance and abuse to tem has to be addressed. Strategies such as continue for another year, which is concern- RBL compression, even if they are not ing. A preferable approach might be to seek widely being used at present, should be to amend the regulations to address the con- nipped in the bud—to use the Treasury’s ex- cerns outlined by the opposition and by us. pression. We expect the announced Treasury We have come to the conclusion that, if review of the defined benefit pensions, due the regulations are disallowed, wealthier to be finalised by April 2005, will include a Australians will continue to abuse the tax broader review of the taxation treatment of system through self-managed superannuation superannuation pensions and might well oc- funds. Overall, we believe that the greater casion an adjustment of these regulations. I mischief that the regulations address is more presume the Treasury will be informed by important than the lesser mischief that the some of the views expressed today by all regulations are seen to cause. Accordingly, parties in the Senate. we will not be supporting the motion to dis- We believe that allocated pensions and allow. market linked pensions are more appropriate

CHAMBER 36 SENATE Thursday, 9 December 2004

Senator KEMP (Victoria—Minister for Of course the government is aware that the Arts and Sport) (11.38 a.m.)—The gov- the action created some transitional issues ernment does not support Senator Sherry’s for those who wish to retire and take a com- motion to disallow these superannuation plying pension from their self-managed su- regulations. As Senator Sherry will know, perannuation fund. To address these con- these regulations were introduced to target cerns, the government put in place a three- arrangements that sought to provide tax and pronged approach to attend to the unintended retirement income benefits far beyond what consequences that arose out of the budget was intended by the parliament. In particular, measures. Firstly, the government released the regulations address arrangements details of the new complying market-linked whereby individuals in non-arms-length su- income stream now advertised as the term perannuation funds could manipulate the allocated pension. This new product com- design of a defined benefit pension to avoid bines the flexibility of an allocated pension reasonable benefit limits, as well as create with tax and social security benefits of a inappropriate estate planning opportunities. complying pension. The assets supporting Also the regulations, by requiring the mini- the pension are eligible for the higher rea- mum of 50 members, ensure that a fund pro- sonable benefit limit, while only 50 per cent viding a defined benefit pension operates on of the assets will be included in the social an arms-length basis and is in a satisfactory security assets test. It also provides for a position to pool the investment and mortality more flexible term, offers the potential for risks associated with paying a defined bene- higher investment returns over time and is fit pension. Without the government’s quick expected to be less expensive to establish and decisive action, a defined benefit pen- and administer as it does not require the in- sion arrangement had the potential to be- volvement of an actuary. All superannuation come a serious risk to revenue as there was funds, including small funds, can provide clear evidence that schemes were growing this pension. Secondly, the government in- rapidly. troduced transitional arrangements to assist At the Senate Economics Legislation those people who genuinely are inadvertently Committee hearings that Senator Sherry at- caught up by the change of rules. Members tended, the Australian Taxation Office of funds with fewer than 50 members who clearly identified that the number of indi- wish to retire have the ability to commence a viduals commencing do-it-yourself pensions complying lifetime or life expectancy pen- has grown from tens in the late 1990s to sion. This transitional arrangement will con- thousands from the year 2000 onwards. The tinue until at least 30 June 2005. ATO also identified that in 2003 well in ex- Thirdly, the government announced a re- cess of $1 billion of superannuation moneys view of the feasibility of small funds provid- flowed to do-it-yourself pensions, yet a little ing a defined benefit pension without the over 40 per cent of these moneys were being prudential and tax avoidance risks. In par- reported for reasonable benefit limit pur- ticular, the review will examine options for poses. The government had to act to limit the small superannuation funds to provide pen- abuse of the tax system. Our intention has sions to their members, including considera- always been to return the tax treatment of tion of the design features of prospective pensions to the level playing field originally pensions that address the government’s con- anticipated by parliament. cern and could attract complying status for taxation and social security purposes, the

CHAMBER Thursday, 9 December 2004 SENATE 37 management of investment liquidity and Senator Sherry, I have to say. But nothing mortality risks and the likely future demand that the Labor Party does will ultimately sur- for pensions with defined benefit characteris- prise us. tics. The review process is well under way. Let us be clear about what the Labor Party Initial submissions provided to Treasury is proposing: by disallowing the regulations have assisted in the development of a discus- the previous superannuation rules will apply. sion paper, which will be released shortly, This will allow small funds to provide de- outlining the key issues as well as canvassing fined benefit pensions as well as allow new a broad range of options for the community defined benefit funds to be created on an to comment on. The government will take improper basis. Significantly, many funds into account the outcome of these consulta- could amend their governing rules to permit tions when considering the report on the re- inappropriate arrangements in anticipation view due in April 2005. Every sensible per- that they would be grandfathered by any sub- son believes that this clearly provides an ap- sequent regulation. Undoubtedly, Senator propriate framework and a balanced process Sherry, as you and I know, there would be to consider options to allow members of aggressive marketing of these schemes. The small funds to gain access to suitable pension Labor Party’s disallowance of the regulations products. In the meantime, the original regu- would allow open slather to unacceptable lations ensure that existing loopholes are not tax-planning arrangements. exploited while the transitional rules allow Senator Sherry—What rubbish! those approaching retirement to continue to access a full range of pension options. Senator KEMP—Senator Sherry is obviously sensitive about this issue. It is not the What does the Labor Party intend to do? first time that the Labor Party has taken a What does the Labor Party want? The Labor very soft approach on tax avoidance. When I Party wants to reject the regulations. The was Assistant Treasurer, the Labor Party was Labor Party wants to open the floodgates to notorious for taking a soft approach on tax continued abuse of the do-it-yourself pension avoidance measures. So it comes as no sur- arrangements by the very wealthy at a sig- prise to me to hear Senator Sherry’s com- nificant cost to the taxpayer. ments in this chamber today. Senator Sherry Senator Sherry—There is no evidence to has indicated in the past that he supports the that effect. government’s review into the final pension Senator KEMP—The Senate Economics options—it should be available to small Legislation Committee, in its report, clearly funds. But Senator Sherry needs to under- recognised tax and estate planning opportu- stand that this is just one aspect of a balanced nities that were possible in the defined bene- approach to address this important issue. fit pensions and were previously allowed to Until the final outcome of the review is de- be paid from small superannuation funds, cided, the government believes the regula- Senator Sherry. You were there; you would tions are required to protect the integrity of have heard that comment. You asked for the the retirement income system. Senator evidence. Those are the matters which were Murray, we welcome the support of your tendered to that committee. Senator Sherry— party for the government’s position. Let me for reasons best known to him—and the La- make this clear: while the government is bor Party want to ignore that evidence. It is firmly committed to providing incentives and really an astonishing performance from flexibility in the retirement income system,

CHAMBER 38 SENATE Thursday, 9 December 2004 this must be on the basis that it is both neu- PAIRS tral and fiscally sustainable. It is on this basis Carr, K.J. Cherry, J.C. that the government does not support the Conroy, S.M. Hill, R.M. opposition’s motion. Cook, P.F.S. Campbell, I.G. Question put: Evans, C.V. Vanstone, A.E. Hutchins, S.P. Macdonald, I. That the motion (Senator Sherry’s) be agreed Kirk, L. Tierney, J.W. to. Marshall, G. Stott Despoja, N. The Senate divided. [11.51 a.m.] * denotes teller (The President—Senator the Hon. Paul Question negatived. Calvert) JAMES HARDIE (INVESTIGATIONS Ayes………… 24 AND PROCEEDINGS) BILL 2004 Noes………… 36 Second Reading Majority……… 12 Debate resumed from 8 December, on motion by Senator Ellison: AYES That this bill be now read a second time. Bishop, T.M. Bolkus, N. upon which Senator Murray had moved by Brown, B.J. Buckland, G. Campbell, G. Collins, J.M.A. way of an amendment: Crossin, P.M. Denman, K.J. At the end of the motion, add “but the Senate: Faulkner, J.P. Forshaw, M.G. (a) notes and strongly condemns the conduct Harradine, B. Hogg, J.J. of the James Hardie Group as identified in Ludwig, J.W. Lundy, K.A. the Jackson Inquiry; Mackay, S.M. McLucas, J.E. Moore, C. Nettle, K. (b) also notes that over the past 50 years to- O’Brien, K.W.K. Ray, R.F. bacco companies have knowingly sup- Sherry, N.J. Stephens, U. plied and promoted a deadly product that Webber, R. * Wong, P. kills over 15 000 Australians a year; and NOES (c) calls on the Government to consider abrogating legal professional privilege for to- Abetz, E. Allison, L.F. Barnett, G. Bartlett, A.J.J. bacco companies in respect of civil dis- Boswell, R.L.D. Brandis, G.H. putes”. Calvert, P.H. Chapman, H.G.P. Senator NETTLE (New South Wales) Colbeck, R. Coonan, H.L. (11.54 a.m.)—Last week was the 20th anni- Eggleston, A. Ellison, C.M. versary of the Bhopal disaster and it is often Ferguson, A.B. Ferris, J.M. described as the worst industrial accident in Fifield, M.P. Greig, B. Heffernan, W. Humphries, G. history. It was a corporate crime of enormous Johnston, D. Kemp, C.R. magnitude, and a crime that continues with Knowles, S.C. Lees, M.H. Union Carbide and its parent company, Dow Lightfoot, P.R. Macdonald, J.A.L. Chemicals, attempting to avoid their liability Mason, B.J. McGauran, J.J.J. * for the victims of Bhopal. Minchin, N.H. Murray, A.J.M. Patterson, K.C. Payne, M.A. The James Hardie (Investigations and Ridgeway, A.D. Santoro, S. Proceedings) Bill 2004 seeks to address an- Scullion, N.G. Tchen, T. other terrible corporate crime that has af- Troeth, J.M. Watson, J.O.W. fected thousands of Australians and will continue to affect many more into the future.

CHAMBER Thursday, 9 December 2004 SENATE 39

Unlike the Bhopal disaster, James Hardie’s non-malignant asbestos related disease. By negligence did not happen in one day. It is a 2020 about 18,000 Australians are expected creeping, silent crime that has affected work- to die as a result of mesothelioma. There is ers and their families across the country. It is no cure. It is a slow and horrible death. With a crime that has continued over decades. The asbestos related lung cancer estimated to Greens support this bill because it will allow occur at a ratio of two to one to meso- ASIC and the DPP access to materials ob- thelioma, the number of asbestos related tained by the New South Wales commission cancers can be expected to be in the order of of inquiry that would otherwise be subject to 30,000 to 40,000 Australians by the year legal professional privilege, and then to use 2020. those documents to investigate whether Asbestos is the cause of this death and James Hardie breached the Corporations Act. misery, and James Hardie was Australia’s Any action that can be taken to ensure that largest manufacturer of products containing James Hardie is brought to justice will be asbestos. Australia had the highest per capita supported by the Greens. The fact that this use of asbestos in the world between the legislation is necessary reflects the extraor- 1950s and the 1970s. About every third dinary actions that James Hardie and its ex- home constructed in Australia before 1982 is ecutive and directors have gone to to avoid thought to contain asbestos, usually in the liability for the death and suffering that the form of asbestos cement sheeting, commonly company has caused. known as fibro. Asbestos was used in fibro Australia has the highest per capita inci- until about the mid-1980s. Products contain- dence of mesothelioma in the world. Accord- ing asbestos were manufactured by Hardie ing to Australia’s leading asbestos disease throughout the 20th century until the mid- experts, there were 7,515 reported incidents 1980s—things such as insulation products, of mesothelioma in Australia to June 2003. fibro, pipes and friction materials, particu- In my home state of New South Wales alone, larly brakes and clutch linings. Hardie domi- the number of reported cases in 2001 was nated the market, particularly in fibro, 2,365—37.2 per cent of all reported cases at throughout this period. In South Australia that time. That is expected to grow to 6,696 and Western Australia, Hardie was effec- cases of mesothelioma just in New South tively the only commercial supplier of fibro. Wales by 2020. The first case of meso- There is evidence that James Hardie knew thelioma was reported in Australia in 1962, the dangers of asbestos from at least the and the incidence of mesothelioma has been 1930s. James Hardie employees brought increasing since that time. It is now con- concerns to the company about the dangers tracted by more than 500 Australians per of asbestos both to employees and product year. The incidence is not expected to peak users from at least the 1950s. No warnings or until 2010, reflecting the widespread use of directions were placed on Hardie’s fibro until asbestos in the early 1970s. The incidence of 1978. No general warning regarding the dan- mesothelioma is then expected to continue ger of asbestos has ever been given by the until at least 2020. company to the community. Asbestos was The time from first exposure to the onset finally banned in Australian workplaces in of mesothelioma averages about 37 years. just January of this year. Figures suggest that for each diagnosed case It is clear from evidence and the conclu- of mesothelioma there are two additional sions of the New South Wales special com- cases of asbestos related lung cancer and mission of inquiry into James Hardie that the

CHAMBER 40 SENATE Thursday, 9 December 2004 company systematically set out to avoid li- any claims arising from or connected with ability for the claims by victims affected by past asbestos liabilities. asbestos related diseases. From about 1995 Despite the assurances given to the New James Hardie began a process of separating South Wales Supreme Court in 2001, Hardie the main assets of the company from the as- did not alert the court, the New South Wales bestos-producing subsidiaries as part of a government or the Australian Stock Ex- strategy to avoid its liabilities. In February change to the fact that Australian James Har- 2001 James Hardie established the Medical die entities would no longer be able to call Research and Compensation Fund, with on the $1.9 billion from James Hardie Indus- $293 million in assets, including the remain- tries NV to meet asbestos claims. As a result ing assets of James Hardie asbestos- of that, the funds available to the Medical producing subsidiaries. Immediately prior to Research and Compensation Fund to com- their separation from the Hardie Group, these pensate James Hardie asbestos victims will subsidiaries indemnified their former parent last for only a further three to four years. company for any asbestos liabilities and This will leave a significant shortfall, given agreed not to sue in relation to the asset that claims are expected for at least the next stripping that had previously taken place. 15 years and that compensation owing to In October 2001 James Hardie gained Australian asbestos victims of James Hardie New South Wales Supreme Court approval has been estimated to reach almost $2 bil- for a scheme of arrangement which estab- lion. lished a new Netherlands based parent com- The actions of James Hardie in this matter, pany, James Hardie Industries NV. An if successful, will have the effect of prevent- amount of $1.9 billion was transferred from ing Australian victims of its asbestos prod- the Australia based James Hardie companies ucts from successfully prosecuting claims into this new entity. James Hardie’s solicitors against the assets of the company responsible assured the Supreme Court that Australian for their illness. The company has sought to asbestos victims would suffer no prejudice as avoid responsibility by its corporate legal a result of these arrangements as the James manoeuvres and money shifting. Hopefully, Hardie entities that remained in Australia justice is catching up with James Hardie and, would be able to call on up to $1.9 billion hopefully, this legislation will help deliver from the Netherlands based James Hardie that justice to the victims. That is why the Industries NV to meet the claims of future Greens are supporting it. creditors, including asbestos victims. The It is important, however, to remember how Netherlands is a country with which Austra- we got to this point and why the government lia does not have a treaty to enforce a civil has decided finally to act to introduce this judgment obtained in Australia. legislation. The victims of James Hardie In March 2003 the lifeline for asbestos have been campaigning for justice— victims was cut when the Netherlands based supported by the trade union movement and James Hardie Industries NV unilaterally can- community activists, including the Greens— celled the partly paid shares worth $1.9 bil- for many years. It is only this unflagging lion. The Australian based James Hardie en- campaign that has created the pressure on the tities with liability for asbestos claims also government to take some action and to intro- indemnified the Netherlands parent com- duce this bill, which will go some way to pany, James Hardie Industries NV, against holding James Hardie accountable.

CHAMBER Thursday, 9 December 2004 SENATE 41

By allowing the corporate veil on James their corporate friends, even when they are Hardie’s activities to be lifted and examined responsible for corporate crimes. They are, by ASIC and the DPP, one part of the action however, happy to receive donations from that needs to be taken against James Hardie the big end of town. will be made easier. But let us be clear: the Let us not forget that the Liberal Party, the government could and should be doing much National Party, Labor and the Democrats, more to assist the victims of James Hardie. until very recently, continued to receive cor- For a start the government should be negoti- porate political donations from James Har- ating a treaty with the Netherlands, which die. According to AEC figures over the last would facilitate access to the bulk of James five years, James Hardie have given as much Hardie’s assets, by allowing Australian civil as $750,000 in political donations to Austra- judgments to be enforced in the Netherlands. lian political parties. Since James Hardie When the government were questioned by shielded their assets in the Netherlands, they the Greens on this matter, they claimed that have given the Liberal Party $71,000, the the Dutch government was unwilling to ne- Labor Party $75,000, the National Party gotiate such a treaty. But, when asked by the $15,000 and the Democrats $15,000—a total victims of James Hardie in meetings with of $176,000. officials in Amsterdam, the Dutch govern- Senator Stephens—We sent ours back! ment said they had never been approached by the Australian government. Senator NETTLE—I shall go on. Earlier this year I moved a motion in the Senate call- The government at the very least should ing on all political parties which had re- seek to reach a special arrangement with the ceived donations from James Hardie to trans- Dutch government to ensure that the assets fer that cash into a trust fund for the victims of the company are available to the victims and their families. It was only because of the of James Hardie’s asbestos. Or the govern- campaign in support of victims’ groups that ment could move an amendment to relevant the Labor Party decided to put $78,000 that it Commonwealth legislation, retrospectively had received into a trust fund. The Prime in the case of James Hardie, to ensure that Minister and the Democrats said that they holding companies are liable to the victims would await the outcome of the New South of their subsidiaries in the case of injury or Wales commission of inquiry before handing death and that a corporate group can be over the money. treated as a single entity for the purpose of enforcing a judgment. This is what victims of The Greens have been active all year in James Hardie have called for and it is sup- support of the victims of James Hardie. Both ported by the ACTU. I hope that the Senate I and the former member for Cunningham, will support such legislation. The Greens Greens MP Michael Organ, moved motions certainly will. urging the Howard government to boycott James Hardie products and services until We welcome recent indications that public victims were compensated. The motion was pressure leading to negotiations between the passed by the Senate. Michael Organ also ACTU and the company are achieving pro- met the Dutch ambassador and presented gress. However, there are no absolute guar- him with a letter, signed by 90 antees from that process. The government Dutch-Australian members of the Greens, can and should be doing more than imple- demanding justice for the victims. The menting this legislation. The government are Greens have worked with the Dutch Socialist always extremely slow to take action against

CHAMBER 42 SENATE Thursday, 9 December 2004

Party towards an Australia-Netherlands Senator GEORGE CAMPBELL (New treaty on court compensation orders that South Wales) (12.08 p.m.)—It would be re- would help to make James Hardie pay. miss of me to allow a bill of this nature to go Greens MLCs in the New South Wales through the chamber without making some parliament have called for the state govern- comment on it, given my background in in- ment to boycott James Hardie products and dustry over many years and given the fact they have moved a motion condemning the that I have had to deal, over those years, with inadequate statutory compensation scheme many of the victims of James Hardie and proposed by James Hardie. Greens council- James Hardie’s products. The James Hardie lors across New South Wales have secured (Investigations and Proceedings) Bill 2004 is boycotts of James Hardie products by their this government’s legislative response to local councils. The Greens have supported what can only be described as a terrible hu- and participated in actions, meetings and man tragedy and a corporate crime of the protests across the country organised by the worst kind. We should not mince words: the labour movement and the victims of James actions of this company, both current and in Hardie. the past, have already cost thousands of Aus- tralian lives—and, I am sad to say, look set So, while we welcome this legislation, it to claim thousands more. But it is also worth is the very least that the government could making the point that there are many thou- do—and it has only come about as a result of sands who have died of these diseases who the actions of the community and trade un- have been undiagnosed and who have re- ions supporting James Hardie’s victims. ceived no compensation as a consequence of However, we should not be fooled into be- their exposure. And there are many, many lieving that, because of this legislation or thousands of people in our community—like because of any other stunt that the govern- me—who have worked in industry, who have ment chooses to pull, this Prime Minister is worked with asbestos, who have been ex- committed to supporting Australian workers. posed to it and who constantly live with the The opposite is true. The government’s in- dread of waking up one day and finding that dustrial relations agenda is undermining un- they have got mesothelioma or some other ions and collective organising in the work- related asbestos disease. No-one can put a place. Unions and collective organising are figure on what that number is likely to be in the single best protection for the health and the future, because it is not only people who safety of workers. Without unions and col- were exposed to these products in the work- lective organising we will have more cases place but also many thousands of Australians like James Hardie. We will have more com- who lived in those typical fibro shacks that panies endangering the lives of workers were built in the fifties who have been ex- while they continue to operate unsafe indus- posed to asbestos over that period of time tries and improve their profit margins along and live with the potential of suffering the the way. James Hardie is hiding in the Neth- consequences of that exposure sometime in erlands while Australian asbestos victims the future. wait for justice. The Greens will back the passage of this bill, but we call on the gov- Labor strongly supports this bill, which ernment to do much more. We call on the will enhance the ability of the Australian government to take serious action that will Securities and Investments Commission, as deliver the victims of James Hardie the jus- well as the Director of Public Prosecutions, tice that they deserve. to undertake investigations and take proceed-

CHAMBER Thursday, 9 December 2004 SENATE 43 ings against corporate bodies of the James the victims and it lied to the community and Hardie group as well as individual officers, to the government. We now know that the employees and advisers of that group. If ever foundation is facing a funding shortfall of in there were a group of corporate shysters who excess of $1.5 billion and has had no choice deserve to spend time behind bars, it is this but to call in administrators ahead of liquida- lot. This bill will ensure that the Common- tion. This is not a case of James Hardie mak- wealth has access to the widest possible ing an honest mistake, of underestimating the range of documents without obstruction. amount of money needed to meet its respon- James Hardie should not and will not be able sibilities; this was a deliberate strategy to in to hide behind claims of legal professional fact avoid those responsibilities. One only privilege to deny investigators access to the has to recall the recent performances on the materials they need to conduct their investi- 7.30 Report of the chairman of the board of gation. James Hardie, Meredith Hellicar, which were It is sad that this legislation is needed at characterised by evasion and obfuscation— all, sad that James Hardie would attempt to which clearly demonstrated this company hide behind legal privilege in order to avoid was still continuing to find ways and means its responsibilities. But, while it is sad, it is of avoiding its liability with respect to the not unexpected when you consider the outra- people who had suffered as a consequence of geously immoral way this company has con- its actions. It is a wilful attempt by the com- ducted itself on this issue over many shame- pany to rob victims of their compensation. ful years. You cannot escape the fact that But, what is more, it was aided and abet- James Hardie knew for many decades that its ted by others, some of whom I am sad to say products were extremely harmful—and in- had associations with the Labor Party, and deed deadly—before it alerted the public. one of whom sat in this chamber as a repre- Once the compensation process began, its sentative of the Labor Party: former Senator behaviour did not improve. First, there was Stephen Loosley. They were also part of the the corporate restructure that separated sub- process of trying to pull the wool over the sidiary companies and transferred assets off- public’s eyes with respect to the actions of shore to a Dutch registered legal entity—all this company and what the company was all designed, essentially, to put James Hardie’s about. They should hang their heads in assets out of harm’s way should the victims shame for their actions as part of this proc- come seeking compensation. ess. Second, there was the cruel subterfuge This year alone, James Hardie is predict- undertaken by James Hardie in relation to the ing a profit of just under $169 million. It is Medical Research and Compensation Foun- also planning to pay former CEO Peter Mac- dation. This foundation was ostensibly set up donald a payout in the millions as well as by the company to ensure that the claims of awarding him a cushy consultancy deal over victims of asbestos related diseases would be the forthcoming months. I am sure he is go- met. But the foundation was also set up as a ing to have a merry Christmas this year—and mechanism for James Hardie to substantially probably many more in years to come— avoid its liability to the victims of the prod- when many of the victims of his activities ucts it had produced. The company claimed and his company’s activities may not even that the foundation was sufficiently funded to last long enough to see this Christmas out. It meet all claims. The reality is that it lied. It certainly will not be a merry Christmas for lied to the victims, it lied to the families of those suffering from lung cancer, asbestosis

CHAMBER 44 SENATE Thursday, 9 December 2004 or the deadly mesothelioma, which has al- relevancy and is unnecessary in today’s eco- ready taken the lives of 7,000 Australians. It nomic and social climate. But, if there was has taken the life of a very close friend of ever a set of circumstances that demonstrates mine, a former president of my union, who the relevance and necessity of having trade died at the all too early age of 50 as a result unions, it is the way in which James Hardie of this disease. No-one is immune. No-one is sought to deal with this issue. It was the immune from the impact that asbestosis has ACTU and individual unions such as the had across our community. CFMEU and AMWU that kept up the fight But, of course, James Hardie just could and worked hard with the community to en- not care less. It continues to refuse to do the sure that James Hardie could not get away honourable thing and provide the foundation from its responsibilities. The union move- with the funding it needs to meet both cur- ment will continue to stand behind the James rent and future claims. A recent injection of Hardie victims until real justice in these cir- $88 million to the foundation is nothing cumstances is done and significant moral, more than a stopgap measure. Come January, financial and other support is provided to the foundation will still be staring into a fi- those victims. nancial abyss. For this disgusting betrayal The labour movement has also been active alone, both the board of James Hardie and in this struggle. In my home state of New former CEO Peter Macdonald deserve to South Wales, the Carr government has put celebrate their Christmas from behind bars, great pressure on James Hardie to do the just as the victims of this callous indifference right thing, including establishing a special are imprisoned by James Hardie’s history of commission of inquiry into the company. neglect. Through its actions, James Hardie This inquiry, conducted by David Jackson has cast a stain on corporate responsibility. It QC, made a range of adverse findings has chosen to honour its bottom line over the against a number of James Hardie directors. lives of suffering Australians. Subsequently, the Australian Securities and But if there has been any ray of hope in Investments Commission announced it this sorry saga it has been the response of the would fully investigate the issues this inquiry community. Australians from all walks of life has raised. The New South Wales govern- have voiced their outrage at the actions of ment has also announced legislation which this company. As a proud trade unionist, I am seeks to enable asbestosis victims to take happy to say that both the trade union move- action against related corporations, including ment and Labor state governments have been the Dutch registered entity. at the forefront of this struggle. The ACTU Whilst this bill is a welcome offering from and its secretary, Greg Combet, have been the federal government, it must be backed up tireless advocates for the victims of James with further vigorous action. While the gov- Hardie. As well as rallying support in the ernment has indicated its support for the wider community, the ACTU has taken on New South Wales government’s proposed many of the negotiations that will hopefully legislation, there remains a lack of clarity ensure that James Hardie provides the addi- about the enforcement of any judgments tional funds the foundation requires to meet against the Dutch based Hardie entity under fully its responsibilities to its victims. this legislation. This is because no treaty ex- This government delights in claiming that ists between Australia and the Netherlands. the trade union movement is dead, lacks The legislation proposed by the New South Wales government and endorsed by the

CHAMBER Thursday, 9 December 2004 SENATE 45

Commonwealth is specifically aimed at Har- Investments Commission, ASIC, of matters die and is retrospective. Thus, for it to be arising out of the James Hardie Special effective, a treaty would appear necessary. Commission of Inquiry in New South Wales. The Attorney-General, however, has not It will also enable proceedings that may arise gone out of his way to provide any certainty from these investigations to be brought by on this matter. While he has commented in either ASIC or the Commonwealth Director favour of the legislation, he has also claimed of Public Prosecutions, the DPP. It is ex- that Dutch authorities had advised that no pected that many crucial documents will be treaty would be necessary. Prior to this, how- subject to claims of privilege by James Har- ever, he had indicated that the government die. would consider pursuing a treaty. No details Honourable senators, in their contribu- of that advice have been provided. One won- tions during the second reading debate, have ders: why the equivocation? Why would the gone through the detailed provisions of the government not take out the insurance of bill, some of the High Court history—the seeking a treaty in addition to pursuing decisions that have been made—and the rea- through normal channels the implementation sons behind this bill, so I will not canvass of its legislation against the Dutch company? those issues. Senator Wong and Senator The government must, of necessity, clear Murray raised a number of queries and I will up this situation and provide certainty for the deal with those now. Senator Wong queried victims of James Hardie and for the New whether this bill should also apply to the South Wales government. The government ACCC. In this regard, I emphasise the gov- must also ensure that ASIC has the necessary ernment is very conscious of the fact that resources to pursue James Hardie. The legal professional privilege is an important Chairman of ASIC, Jeffrey Lucy, has indi- common-law right that should only be abro- cated that additional funds will be required gated if there is a clear public interest in do- by ASIC. If these funds are not provided by ing so. ASIC is the lead regulator in the in- the government, this legislation we are de- vestigation of matters raised by the James bating today becomes little more than empty Hardie Special Commission of Inquiry. ASIC rhetoric. The government owes it to the vic- will work closely with the ACCC where this tims of James Hardie and their families to do is appropriate. While it is important that no all it can to ensure that they receive appro- areas of potential action be overlooked, we priate justice. This legislation is a positive should avoid a duplication of investigations. step, and I hope that in future the govern- Such duplication would waste resources and, ment will work with the ACTU, with state more importantly, could impede a quick governments and with the many committed resolution of the issues raised. community groups who have been active on ASIC has broad powers to recover civil this issue to bring this disgraceful chapter of damages. For example, section 50 of the Australian corporate history to an honourable ASIC Act allows ASIC to begin a civil pro- end. ceeding on behalf of a third party for the re- Senator ABETZ (Tasmania—Special covery of damages for fraud, negligence, Minister of State) (12.23 p.m.)—The James default, breach of duty or other misconduct Hardie (Investigations and Proceedings) Bill in the public interest. I understand that New 2004 will facilitate a thorough and effective South Wales yesterday passed legislation investigation by the Australian Securities and enabling the ACCC to use the documents from the Special Commission of Inquiry into

CHAMBER 46 SENATE Thursday, 9 December 2004

James Hardie. If it had chosen to, New South requirements in the context of the budget Wales could have removed legal professional processes and make any announcements in privilege in respect of those documents. For due course. some reason, it chose not to do so. Whilst the Another relevant issue Senator Wong Commonwealth believes that a full range of raised was the enforcement of judgments remedies is available to ASIC, it will con- overseas. The Australian government has sider advice from ASIC on whether other been advised by Dutch and US authorities agencies have a role to play or require addi- that, in general, Australian court judgments tional power to play such a role. In the mean- can form the basis of legal action in their time, it is important that ASIC, as the lead respective jurisdictions. As such, it is the regulator, be allowed to get on with its inves- government’s position that treaties are not tigation. required. The government has been involved Another issue raised by Senator Wong was in communications with Dutch and US au- whether the bill abrogates legal professional thorities regarding procedures for the en- privilege in relation to claims of privilege by forcement of Australian judgments in those James Hardie officers. The answer to that countries. question is yes. Subclause 4(1) of the bill Senator Murray raised an issue in relation abrogates all legal professional privilege in to the James Hardie letter. Senator Murray relation to James Hardie material for the noted concerns raised by James Hardie in purposes of a James Hardie investigation or a correspondence dated 8 December 2004. prosecution. Legal professional privilege is This correspondence was tabled in the Sen- abrogated regardless of who is making the ate on the same day, which was yesterday. claim. This will ensure that ASIC has access The key question this letter raises is whether to the information that is required for a com- the existing bill goes too far in abrogating prehensive investigation of the James Hardie legal professional privilege. The government group, its directors and officers and its advis- does not agree that the bill goes too far. The ers. Subclauses 4(2), 4(3) and 4(4) have been bill is appropriately targeted by limiting the included to avoid any doubt that legal pro- abrogation to material for the purposes of, or fessional privilege in relation to James Har- in connection with, a James Hardie investi- die material does not prevent ASIC or the gation or related proceeding. James Hardie DPP exercising their powers to obtain mate- investigations are tightly defined in the legis- rial or admitting it as evidence for a James lation, covering those matters that were iden- Hardie investigation or proceeding. tified by the special commission of inquiry The issue of ASIC’s funding and its ade- as involving possible misconduct by the quacy was also raised by Senator Wong. The James Hardie group. Restricting the current government is committed to ensuring that the definition could exclude important material. corporations regulator is sufficiently funded It is also important to note that the bill to discharge all of its responsibilities. It has does not expand ASIC’s investigation powers an annual budget of about $200 million and under part 3 of the ASIC Act. Rather, it al- spends about a third of that on enforcement lows ASIC to examine material that would matters. ASIC’s current funding level is the otherwise be subject to legal professional highest it has ever been, with funding in- privilege. This is not unprecedented. Indeed, creased by more than $60 million across four it confirms a longstanding interpretation of years in the 2004-05 budget. The govern- ASIC’s powers dating back to the 1991 deci- ment will consider any additional funding

CHAMBER Thursday, 9 December 2004 SENATE 47 sion of the High Court in the Yuill case, Question negatived. which was only called into question recently. The ACTING DEPUTY PRESIDENT— Finally, I would like to address the second The question is that paragraph (c) of the reading amendment moved by Senator amendment moved by Senator Murray be Murray on behalf of the Democrats. The agreed to. government will not support paragraphs (b) Question negatived. and (c) of Senator Murray’s amendment. The Original question, as amended, agreed to. abrogation of legal professional privilege is very serious, and any consideration of abro- Bill read a second time. gating this important common law right in Third Reading other circumstances should be carefully con- Bill passed through its remaining stages sidered. Today we are here to abrogate legal without amendment or debate. professional privilege to allow ASIC to con- TAX LAWS AMENDMENT duct a comprehensive investigation into the (RETIREMENT VILLAGES) BILL 2004 James Hardie group, its directors and officers and its advisers. Consideration of House of Representatives Message In conclusion, I would emphasise that the government places great store in ethical be- Message received from the House of Rep- haviour by corporations. It does not condone resentatives returning the Tax Laws Amend- or support companies that restructure their ment (Retirement Villages) Bill 2004, in- affairs to avoid their legal liabilities to the forming the Senate that the House has dis- victims of their products. That sort of behav- agreed to the amendments made by the Sen- iour is unconscionable and should be prose- ate and desiring the reconsideration of the cuted to the full extent of the law. The gov- amendments. ernment remains of the view that James Har- Ordered that the message be considered in die should honour its obligation to compen- Committee of the Whole immediately. sate those victims who have a legitimate Senator ABETZ (Tasmania—Special claim against the company for asbestos re- Minister of State) (12.34 p.m.)—I move: lated diseases. I thank honourable senators That the committee does not insist on its for their contributions to this debate. amendments to which the House of Representa- Senator Wong—Is it possible for para- tives has disagreed. graphs (a), (b) and (c) of the second reading Senator McLUCAS (Queensland) (12.34 amendment to be put in seriatim? p.m.)—The Tax Laws Amendment (Retire- The ACTING DEPUTY PRESIDENT ment Villages) Bill 2004 is an important (Senator Moore)—There being no objec- piece of legislation, as was discussed yester- tion, that is possible. The question is that day. It is the result of four years of urging by paragraph (a) of the amendment moved by the retirement village sector and the Labor Senator Murray be agreed to. Party for the government to deal with the Question agreed to. question of the application of the GST to services provided in retirement villages. The The ACTING DEPUTY PRESIDENT— Labor Party were concerned about some The question is that paragraph (b) of the elements of this legislation and therefore amendment moved by Senator Murray be yesterday moved—successfully—a series of agreed to. amendments. As we have just heard, they

CHAMBER 48 SENATE Thursday, 9 December 2004 were not agreed to by the House of Repre- So we were not delaying the legislation. sentatives. That is unfortunate for people We were trying in good faith to tidy it up to who live in retirement villages and it is un- make it very clear how it will be applied. fortunate for people who operate retirement That has not delayed the passage of this bill villages. However, the substance of the bill at all. I urge lobbyists and people working on does deliver what the industry has been call- behalf of various sectors to take advice on ing for for a very long period of time—that procedural matters from this government is, clarification and simplification of the ap- with a grain of salt and to not be bullied into plication of the GST. The bill ensures that making decisions based on that. The Labor operators can be clear on whether or not ser- Party will be supporting the motion moved vices are GST applicable. It is a victory for by the minister. I thank the sector for their the sector and a victory for the Labor Party hard work over the last four years. that finally the government has clarified the Senator MURRAY (Western Australia) application of GST to services provided by (12.38 p.m.)—The Democrats supported retirement villages. Labor’s amendments yesterday because we We cannot forget that when the govern- thought they did deliver a little more cer- ment brought in the GST it was going to be tainty to a situation where people were, as simple. Four years later we are still tidying it we described it, often anxious. We were most up. Four years later we have just finalised the interested, of course, in their first amend- application of the GST to this area, and I am ment, which we thought was particularly sure there are plenty more areas to cover. We helpful. However, this bill is an important will be watching the application of this legis- one. It does retrospectively deliver benefits lation in the sector. We will be seeking to worth many millions to people who have make sure that it provides clarity and surety paid GST for these services and we think its to the people providing services in retirement intention is consistent with the original inten- villages. But, because of the need for this tions of the government and the Democrats legislation, Labor will not be insisting on the when they agreed the GST package— amendments we made yesterday. namely, to ensure that health services are During the debate yesterday and during GST free. This very much falls within that. discussions with the government, there was a So we certainly will not be insisting on these view put that if we did move amendments amendments. We support the bill fully. yesterday it would delay this bill to the point The CHAIRMAN—The question is that where we would not be able to deal with it in the committee does not insist on the amend- this sitting. The fact that we are dealing with ments disagreed to by the House of Repre- this bill now, with plenty of time between sentatives. now and close, puts a lie to that allegation. Question agreed to. The government was in fact almost suggest- Resolution reported; report adopted. ing to the sector that if the amendments were moved, the opportunity to have the matter BUSINESS dealt with would be delayed until next year. Rearrangement The sector can make up their own mind Senator ABETZ (Tasmania—Special about whether or not that was good advice Minister of State) (12.40 p.m.)—I seek leave but the simple fact that we have dealt with to move a motion to vary the order of the this bill today says very clearly that that was Senate agreed to earlier today relating to the very false advice.

CHAMBER Thursday, 9 December 2004 SENATE 49 hours of meeting and routine of business for the day no. 3, Classification (Publications, Films today. and Computer Games) Amendment Bill (No. 2) 2004. Senator NETTLE (New South Wales) (12.40 p.m.)—Before giving leave, I want to Question agreed to. check that we are just dealing with the four CLASSIFICATION (PUBLICATIONS, bills as circulated in the draft copy of this FILMS AND COMPUTER GAMES) motion to our offices—that is, the James AMENDMENT BILL (No. 2) 2004 Hardie, higher education, classification and Second Reading tax bills. Are the bills that Minister Ellison Debate resumed from 2 December, on mo- mentioned before the four we are dealing tion by Senator Ellison: with? That this bill be now read a second time. Senator ABETZ (Tasmania—Special Minister of State) (12.41 p.m.)—We have Senator LUDWIG (Queensland) (12.43 already dealt with the first two bills on that p.m.)—Labor clearly supports the Classifica- list. Therefore, there are now only two: the tion (Publications, Films and Computer classification amendment bill and the Higher Games) Amendment Bill (No. 2) 2004, Education Legislation Amendment Bill. We which will make minor amendments to the have already worked through the first two on Classification (Publications, Films and Com- the list that Senator Ellison provided earlier puter Games) Act 1995. Under the national today. classification scheme, the Classification Board is responsible for the classification, on Leave granted. application, of films, computer games and Senator ABETZ (Tasmania—Special certain publications. The Classification Re- Minister of State) (12.41 p.m.)—I move: view Board makes fresh classification deci- Omit paragraph (b), substitute: sions in response to an application for review (b) the routine of business from not later of a decision of the board. The national clas- than 4.30 pm shall be: sification scheme plays an important role in (i) government business as follows: providing guidance for consumers of film, computer games and literature but it also has Classification (Publications, Films and Computer Games) Amendment a very important role to play in classifying Bill (No. 2) 2004 material provided to it by Commonwealth, Higher Education Legislation state and territory law enforcement agencies Amendment Bill (No. 3) 2004, who are seeking information upon which to base prosecutions, particularly for the sale, (ii) consideration of orders of the day relating to government documents, distribution and use of pornographic material and and child pornography. (iii) consideration of committee reports, These amendments will remove any doubt government responses and Auditor- about the validity of decisions made by the General’s reports. Classification Board and the Classification Question agreed to. Review Board where there have been minor technical deficiencies in the application Senator ABETZ (Tasmania—Special Minister of State) (12.43 p.m.)—I move: process. The changes do not go to the substantive decisions of the board and, it is im- That intervening business be postponed till af- portant to note, only apply to applications for ter consideration of government business order of classification made by law enforcement au-

CHAMBER 50 SENATE Thursday, 9 December 2004 thorities. Applications are made by police for forcement agencies in their continuing effort unclassified material to be classified by the to fight against the production, transfer and board with the classification then being used possession of child pornographic material. as part of any prosecution process. This includes removing even the most minor The amendments will have the effect on or technical legal uncertainty wherever it applications by law enforcement agencies may exist. made both before and after commencement Under these circumstances Labor will of this bill. The provisions do not operate to support the bill because we believe that all validate classification decisions that might be governments must be clear and unequivocal defective for reasons other than minor tech- in their intent to prosecute serious child por- nical deficiencies related to the application, nography offences and take action to ensure nor do they prevent any challenges to a their laws and procedures are appropriate board or review board decision based on and permit this. The production, trade and some defect in the decision-making process. possession of child pornography is abhor- Remember also that these changes have no rent. There can be no qualification on our impact on applications made by industry for condemnation of this. This parliament would classification and any defects that might be be derelict in its duty if it did not take every found in their applications. The classification available step to ensure that the trade does decision-making process will remain rigor- not continue. ous, and interested parties under the act will The recent arrests of those found in pos- continue to have the right to appeal. session of child pornography by state and We understand that the government is of territory law enforcement agencies is a vital the view that all decisions made by the Clas- part in a worldwide effort to stamp out pro- sification Board and the Classification Re- duction, distribution and use of child pornog- view Board remain valid, even where there raphy. This parliament must do all it can to has been a procedural error in the application ensure that this heinous practice is stopped process. Nevertheless, Labor agree with the and that those involved are fully prosecuted. government that it is important that the par- Labor is happy to add its support to the liament make this abundantly clear in this measures in this bill that ensure a rigorous bill. While there is an element of retrospec- classification regime and a strong system of tivity in the operation of these amendments, prosecution based on it. Labor consider the government’s argu- Also, given that the classification bill is ments—that is, that the changes are appro- before us, it is a relevant time to mention that priate and will not result in any substantive when adults make decisions about presents injustice—to be sound. for children they should take the opportunity Labor have been briefed and, whilst it is to read classification labels to ensure that the not appropriate to discuss details of law en- films they might send their children to are forcement applications publicly, we are satis- appropriate for the age of the children. fied that the government amendments are Adults should also take the opportunity, appropriate. It is important to note that no act when purchasing games for children, to read which was legal prior to the introduction of classification labels and ensure they are ap- this bill will become illegal following its propriate for the age of the children whom commencement This parliament has an un- the games target. deniable obligation to support our law en-

CHAMBER Thursday, 9 December 2004 SENATE 51

Senator GREIG (Western Australia) somewhere along the line. When it is pro- (12.48 p.m.)—This bill makes some brief, spective, it gives them the opportunity to do although not entirely non-controversial, so with little consequence. Despite these amendments to the classification act. Spe- concerns, the Democrats have decided that cifically, the bill provides that, if the board we will support this legislation because, in makes a decision on the basis of an applica- weighing the competing interests of legislation that did not satisfy the requirements of tive compliance by the police on the one the act, the board’s decision will nevertheless hand and the need to prosecute those who be valid. This also applies to subsequent de- commit child pornography offences on the cisions and actions made on the basis of the other hand, we have determined that the lat- original decision. Moreover, it applies to ter must win out. decisions by the board on an application for In speaking to this bill, I want to take the a review of a decision if that application did opportunity to make a number of observa- not satisfy the requirements of the act. Nota- tions about Australia’s supposedly uniform bly, the bill will apply retrospectively. The and cooperative censorship system. While new provisions apply to decisions of the the government has cleverly pushed the point board, whether made before or after the en- that prosecutions for child pornography of- actment of this legislation. fences may be put in jeopardy if the bill is As I understand it, the need for this legis- not passed, which, as I have said, is the rea- lation arises from the fact that, over the past son for our support, it is also important to few years, the police have made a number of note that the bill will also be used to allow applications on the incorrect form. As a con- police to prosecute those who sell non- sequence, if this legislation does not pass violent erotica—that is, X-rated 18-plus ma- there may be some prosecutions which are terials—in those jurisdictions where selling jeopardised, including prosecutions for child such material is still illegal. This is some- pornography offences. Obviously, this pre- thing which has been confirmed by the At- sents a concern but it is not the only concern torney-General’s office. Specifically, advice which the Democrats have in relation to this from his office stated: bill. Let us not forget the significant public The Bill validates decisions made in response interest in ensuring that our law enforcement to deficient or defective applications for classifi- agencies comply with their obligations under cation from law enforcement authorities. legislation. Law enforcement agencies can make applica- What legislation like this does is take tions involving material that is submitted for the away a strong incentive for the police to en- purpose of investigations or prosecutions related sure that their work complies with legislative to child pornography and other offences, including illegal sale of X or RC— requirements. If there are no serious consequences and no risk of jeopardising a prose- refused classification— cution, there is not a whole lot to prevent material. sloppy work. For these reasons, we Democ- In effect, the government’s bill will excuse rats do not see this bill as being purely non- police officers in the states which make tardy controversial in the way that the government classification applications to prosecute peo- has attempted to portray it. Legislation such ple for selling federally classified material. as this is not desirable—most particularly That is a quite ridiculous outcome. Instead of when it is retrospective—and it is a good passing a law that allows state police officers indication that the police have mucked up

CHAMBER 52 SENATE Thursday, 9 December 2004 to make mistakes in prosecuting people for Why wouldn’t their acceptance of an X selling a product that has passed all the re- category for Australians negate their small- quirements of the government’s own agency, minded and politically motivated bans in the Office of Film and Literature Classifica- their own states? Why is the federal Attor- tion, the federal government should insist ney-General not asking them to explain their that the states truly adopt the ‘uniform and acceptance of the national classification code cooperative’ classification scheme that we at one level but their nonacceptance of it at are supposed to be living under. another? They cannot have it both ways. Ei- All state censorship ministers accept the ther they should have refused to ratify the classification code when they sit to discuss guidelines for X-rated 18-plus materials or censorship issues as a group but, when they they should have regulated their own state go back to their states, they enact laws which based trade in line with the guidelines. I put are at odds with the national code. It is a joke it to senators that the discrepancies between to call this a national scheme, and the state which classifications are allowed to be sold attorneys-general may even be acting uncon- at the federal and state levels have a direct stitutionally in perpetrating this mythology impact on DVD and video black market op- on the Australian people. How can you argue erations in Australia and may also be fuelling for one set of standards—one set of moral- the trade in child pornography that, ironi- ity—for Australians in Victoria and another cally, is the core subject of the bill we are for Australians living in Queensland? The trying to deal with today. notion that Western Australians are more In all states, but not the territories, there offended by a certain style of video or DVD exists a thriving black market in adult video than, say, Northern Territorians or South and DVD material. Like the sale of alcohol Australians or that South Australians are in the US during the prohibition era, this is more sensitive to certain types of publica- because the product is popular, easy to pro- tions is complete nonsense. duce and, when used responsibly, not so- A Commonwealth must surely embody cially harmful. The problem is that the state the notion of a common set of standards, but police no longer prosecute the crime of pur- the present national classification scheme chasing federally classified X-rated 18-plus sets up an inconsistent patchwork of moral materials for a number of reasons; the main standards based on little more than location. one being that, because these products are In 2002, the Standing Committee of Censor- federally classified, they are therefore legal ship Ministers unanimously signed off on the to possess and legal to purchase. The only guidelines for X-rated 18-plus videos and area that misguided state based morality can DVD materials. Ostensibly, what they were have an effect on here is the sale of such doing was agreeing with each other, on be- products, and that is what is criminalised. No half of the citizens in their jurisdiction, that other product in Australia is legal to purchase the guidelines for this material were accept- and legal to possess but illegal to sell. Many able for Australians. But then they went back police officers in the states quite legally pur- to their respective states to preside over bans chase X-rated 18-plus materials from their on the sale of the very same material. What local adult shop. When they are directed to sort of message does that double standard arrest that same person for the selling part of send to the people of Australia? the operation, there is an extreme reluctance to do so—and understandably so.

CHAMBER Thursday, 9 December 2004 SENATE 53

The problem with the bind that the police day. I take this opportunity to urge the Attor- find themselves in has meant that illegal op- ney-General to initiate a plan to ensure that erators, and even organised crime syndicates, the states adhere to the national classification have started to expand the sale of these code as it stands today. products into family areas like video librar- In closing, I restate the Democrats’ view ies, convenience stores, service stations and that it is disappointing that legislation such even open air markets. A recent survey car- as this is required. We appreciate that it is ried out by industry operatives found a dozen limited to minor technical flaws in the appli- family outlets selling adult video and DVD cation process rather than any substantial materials or their published equivalent in the flaw. Nevertheless, we do believe it is impor- Victorian premier’s own electorate. tant that there be strong incentives for the With no controls in these areas, like age police to comply with their legislative obli- checks and the normal industry scrutiny, pi- gations. By contrast, this bill gives them a rated videos and DVDs and unclassified and legislative pardon for tardiness. The govern- refused classification material are also start- ment argues in the context of a prosecution ing to appear—and more frequently. The for the illegal sale of an X-rated film that: potential for child pornography to appear ... it remains the responsibility of the prosecution alongside this other contraband material in to prove beyond reasonable doubt that the defen- these family areas is all too real. If the states dant is guilty of an offence. Any concerns regard- were made to adopt the national classifica- ing the police investigation and prosecution could tion code that they pay lip-service to at meet- be raised in that context. ings of the censorship ministers, these prob- The point that I am trying to make is that, lems could be overcome very quickly. Illegal while we are concerned by irregularities in DVD and video material is almost impossi- police investigations, our concerns run much ble to find in the two jurisdictions that ad- deeper than that. From our perspective, we here to and enforce the national classification need to take a step back and consider code—that is, the two territories, the ACT whether these offences should even remain and the Northern Territory. This is entirely a on the statute books. However, the Democ- problem created and maintained by state La- rats are conscious of the fact that this bill bor attorneys, who prefer to avoid dealing also covers child pornography offences, and with these issues for fear of upsetting the we will support the bill on the sole basis that moral minority rather than be courageous we are not prepared to put at risk the prose- and address the bad legislation that is clearly cution of such offences. spawning a growing black market. Senator ABETZ (Tasmania—Special I am reminded here of the former Attor- Minister of State) (12.59 p.m.)—I thank ney-General’s second reading speech deliv- honourable senators for their contributions. I ered in the House some years ago regarding will briefly summarise aspects of the Classi- a proposed new video category of non- fication (Publications, Films and Computer violent erotica, or NVE. The then Attorney, Games) Amendment Bill (No. 2) 2004. By Mr Daryl Williams, specifically mentioned enacting this law, parliament will be indicat- the creation of black markets by organised ing its intention that a classification decision crime if X-rated 18-plus materials were ever should be considered valid where there is a banned at a federal level. He backed a regu- defect or deficiency related to the technical lated environment then and his words should application requirements of the act. Although be heeded by state censorship ministers to- the bill only refers to decisions made in re-

CHAMBER 54 SENATE Thursday, 9 December 2004 sponse to applications from law enforcement whether the material classified by the board agencies, this is not intended to create any is the same as the material that was submit- implication that a classification resulting ted or the same as the material seized is from an application of a commercial client properly a matter that the court would need should be invalid if that application had a to assess. technical defect. In other words, if the court Third, the government is aware of sugges- would have considered a classification deci- tions that X-rated films, RC films and un- sion valid despite a defect in a commercial classified films are being sold illegally in the application, this bill will not change that re- states. Regulation of the availability of films sult. and the enforcement of prohibitions or limi- It is also important to note that the tations on sale are state and territory respon- amendments have no impact on the decision- sibilities. The Office of Film and Literature making provisions of the act. The formal Classification’s Community Liaison Scheme requirements for applications are separate routinely inspects restricted premises and from the substantive provisions governing retail stores to educate about and advise on the decision-making processes of the Classi- legal obligations. These Community Liaison fication Board and the Classification Review Scheme officers have identified and reported Board. The full rigour of the classification breaches of legal restrictions on the sale of decision-making process will continue to X-classified films to the relevant state cen- apply to all products admitted for classifica- sorship officials and nominees of enforce- tion. As a further point of clarification, this ment agencies. The enforcement of prohibi- bill does no more than validate a limited tions on sale is a state responsibility which class of classification decisions and the ac- the Commonwealth expects to be upheld tions subsequently taken by the Classifica- under the national classification scheme. I tion Board, the director and the Classifica- thank honourable senators for their contribution Review Board in respect of those deci- tions to the debate on this bill and commend sions. The bill does not affect the responsi- it to the Senate. bility of law enforcement authorities to make Question agreed to. proper applications for classification, and it Bill read a second time. does not otherwise impact on the rights of defendants in criminal proceedings. Third Reading I will briefly respond to three matters Bill passed through its remaining stages raised by Senator Greig. First of all, the bill without amendment or debate. does not affect the obligations of Common- HIGHER EDUCATION LEGISLATION wealth, state or territory police to submit AMENDMENT BILL (No. 3) 2004 applications properly. They must still use Second Reading their best endeavours to follow the require- Debate resumed. ments of the act. It merely ensures that if a mistake is made in the application process Senator BUCKLAND (South Australia) that is not picked up by the OFLC then the (1.04 p.m.)—I was not going to speak on the decision made is still valid and the prosecu- Higher Education Legislation Amendment tion is not compromised. Second, the bill Bill (No. 3) 2004, but I see that there is the does not affect a defendant’s right to argue in opportunity to do that. We are starting to fo- court that the product classified was not the cus on higher education in Australia, gener- material seized by the police. The matter of ally because of skills shortages developing in

CHAMBER Thursday, 9 December 2004 SENATE 55 our country. It is a change in focus. Labor ford to enrol in higher education. I notice has, for a long time, campaigned to draw to Senator Carr is here, and I am very pleased the government’s attention its lack of dili- that he will be able to speak in the debate on gence in providing adequately for higher the Higher Education Legislation Amend- education. It needs to put its eye on what is ment Bill (No. 3) 2004—and probably far really happening there. Young people from more powerfully than I have done. country areas of Australia are disadvantaged Senator CARR (Victoria) (1.08 p.m.)—I when it comes to going any further than high thank the chamber for its indulgence. I did school. They are disadvantaged because to not realise the second reading debate on the do their study they need to move away to Higher Education Legislation Amendment capital cities or to major centres not closely Bill (No. 3) 2004 was commencing quite so aligned to where they live. Once those young quickly, and I would like to offer a few people leave their homes, they can no longer words on the bill. The bill amends the Higher come back to where they live, because jobs Education Support Act 2003, and it does per- are not available following their study. form some non-controversial functions, in- Since they have been in office the gov- cluding variations to the maximum grant ernment have been lacking in the attention levels under the Commonwealth Grants they have paid to looking after those people Scheme to reflect the transfer of funding for in the industry, such as teachers, care people radiation oncology places. It also makes and support staff. They have not provided what the Commonwealth calls ‘minor and funding for those people to be able to prop- technical amendments’ to the HES Act. erly educate our children and to properly Some of these amendments are far from mi- develop their skills so that we can become nor and a lot more than technical in that they the smart country that we believe we should reflect the indecent haste and the shameful be. My colleague Senator McLucas has indi- shemozzle that accompanied the passage of cated that she would like to speak in the de- the legislation a year ago. bate, so I will let her do so. Senators will doubtless remember the Senator McLUCAS (Queensland) (1.07 more than 250 amendments to last year’s p.m.)—Higher education is an important part bill—the one that gave us the unworkable of our education system in Australia, and I and irrational higher education funding and think you, Madam Acting Deputy President regulatory regime. One hundred of those Moore, would share with me concerns about amendments were from the government. the impact of increasing fees on people who They bowed to the tokenistic demands of want to get into higher education. We saw, Independent senators in order to squeeze the sadly, this week the reality that enrolment legislation through the parliament in the very levels in higher education are decreasing. I late hours of one night. They in fact rejected think, and certainly commentators in the sec- all amendments that the opposition proposed. tor agree, that this situation has a direct link What we had was an incoherent mess. The to the fact that there has been an increase in government were seeking to apply a bandaid HECS fees for many students. I concur with treatment to a rather ramshackle edifice, and Senator Buckland that this will be exacer- once again they are now doing what they can bated in regional areas, where the market to repair the damage that they have inflicted. question does play on students’ minds and That is largely what this bill is all about— certainly those of their parents when making another patch-up job by the Commonwealth decisions about whether or not they can af- government, under the Minister for Educa-

CHAMBER 56 SENATE Thursday, 9 December 2004 tion, Science and Training, Dr Nelson, to try back to America with his somewhat cruddy to fix up the mess that they have created. parody of a real university—and good rid- Let me give one example to highlight this dance. Greenwich was trying to pass itself issue about these so-called ‘minor’ and off as a genuine Australian university and ‘technical’ amendments that the bill seeks to dragging our self-respecting genuine institu- fix—the question of the summer schools, tions with it into yet another swamp of pri- which under the old bill would have pre- mordial slime. We see now that our interna- vented universities from doing as they have tional reputation for excellence in higher done for years, and that is to charge tuition education was in fact threatened by the fail- fees for summer schools in the upcoming ure of the government to appreciate their summer break. Because of the paucity of the obligations with regard to quality assurance. funding that is provided to universities by So it was with great satisfaction that the La- this government, universities depend heavily bor Party were able to point out that we are on the fee income to survive—not only over- the defenders of decency and quality in the seas student fees but also fees charged for higher education sector, and we will drag this various student activities such as the summer government kicking and screaming to meet schools program. University vice-chancellors their responsibilities in that regard. are understandably dismayed by the prospect This bill, in its first incarnation prior to of losing this income, and the government the recent election, included a clause that for its part is embarrassed at the discovery of would have added yet another outfit of yet another problem that has emerged from somewhat dubious repute to a list of recog- its 2003 legislation. nised universities for the purposes of this act. The opposition will be supporting this bill, That particular outfit was known as Mel- simply because we do not want to see money bourne University Private Ltd. When the denied to the universities. Frankly, we do opposition and minor parties saw this, alarm enjoy the spectacle of the government having bells rang. We sent the bill off to a Senate to clean up their somewhat pathetic act in committee for inquiry into this aspect of the this matter. But there is another reason why I legislation. We were confident that such an support this bill, and that is that there is inquiry would reveal that the credentials of cause for celebration here: the opposition Melbourne University Private would be ex- have had yet another victory. Once again, we posed as being totally inadequate, and I am are faced with a somewhat embarrassed gov- pleased to be able to report to the Senate that ernment that have acted improperly in terms we were right. We have been able to show of their connivance with what would seem to that the government was negligent in its re- be a number of somewhat dodgy elements sponsibility to defend Australia’s reputation within the higher education sector. with regard to its university sector: the committee’s report was damning of the creden- I can remember two years ago, when the tials of Melbourne University Private. opposition pursued the issue of Greenwich, we had the great pleasure of watching the Government senators made a somewhat government having to back down on that feeble attempt to defend the government’s charlatan outfit on Norfolk Island— actions and, paltry as the attempt was, it was Greenwich University. We finally got rid of to no avail because the government has now Greenwich and its chancellor, the Duke of had to acknowledge that the emperor had no Brannagh. The duke has been forced to flee clothes. Melbourne University Private has been stripped bare in the main body of the

CHAMBER Thursday, 9 December 2004 SENATE 57 report of the Senate committee and the gov- sit a bit oddly with the extraordinarily frank ernment has accepted the thrust of that rec- admission by Melbourne University Private ommendation. Let me remind the Senate of Ltd Director, Mr Neil O’Keefe, who told the what we found: committee: The Opposition members of the committee find It has never been argued by anybody, including MUPL wanting in several respects. The institu- MUPL, during the review process, that this was tion fails to achieve the standards required by the much more than an English language school that MCEETYA Protocols, particularly with regard to had a bit of a university hanging off the end of it. research profile and output. Its representatives When it was established, those were some of the have failed to convince Opposition senators that very reasons why it came under such criticism. the institution is a bona fide stand-alone entity There are good reasons for the criticism, and that truly accredits its own degrees. It has an aca- it has never abated. Victorian education min- demic staff of approximately 13 persons, many of whom are also staff members of the University of ister Lynn Kosky was obviously dubious Melbourne. Its income is derived overwhelmingly about the standing and credentials of Mel- from commercial activities such as consultancy bourne University Private. In reviewing the and English-language teaching, rather than the entity’s accreditation in 2003, Ms Kosky provision of undergraduate and postgraduate imposed a number of stringent conditions on award courses. While MUPL may have met the Melbourne University Private that had to be requirement of the Victorian Government for a met if the Victorian government was to rec- minimum of three per cent of students enrolled in ognise it formally as a genuine university award courses, this hardly makes it a genuine that met the MCEETYA national protocols university. Further, it is financially dependent on for university status. These conditions in- its parent institution. cluded ‘a level of research output acceptable They are, I am sure many of you would say, to the minister’. Ms Kosky provided detailed somewhat bland words—but behind those specifications of what that would entail. words there are quite serious issues. In fact, we had a somewhat farcical situation The truth of the matter is that while Mel- whereby Melbourne University Private pre- bourne University Private tried manfully to sented witnesses who were strenuous in their put an impressive gloss on its current re- indignant protestations that they had been search publications list, as submitted to the subject to an unfair inquiry. In its communi- Victorian minister and to the Senate commit- cations to the committee after the hearing, tee, even a cursory examination of this list the Executive Dean, Dr Vin Massaro, said of shows just how woeful its performance actu- the inquiry’s processes: ally was. Melbourne University Private Ltd had at that time just 7½ effective full-time ... the University believes that its integrity has academic staff members. This fact in itself been impugned... the University’s commercial reputation has also suffered ... ought to give rise to a question or two about its standing as a real university. Most univer- These complaints were a response to vigor- sities, as I think all senators would be aware, ous but quite normal and expected types of have hundreds of academic staff across a questioning from the committee. Normally, range of disciplines. In fact the majority of universities go out of their way to be open, staff who teach the odd hour for Melbourne frank and cooperative when it comes to pro- University Private Ltd are employed full- viding information to the Senate. It would time by the University of Melbourne, its so- seem, however, that Melbourne University called parent institution. Private had something to hide. Their protests

CHAMBER 58 SENATE Thursday, 9 December 2004

The 7.6 academic staff, according to the professionalism of that department—that research report attached to the Melbourne they would have told the minister. Therefore, University Private submission to the Senate I am not surprised now that the bill is no committee, produced in the year 2003-04 a longer on the list. I am only surprised that it total of 8.7 research publications, weighted was originally on the list. If we examine fur- according to the DEST standard criteria. This ther the evidence that was presented at the claim, as questioning from the committee committee, we are entitled to also question made clear, was entirely fallacious. It was whether or not Melbourne University Private put to the university’s representatives that, of was in fact an independent stand-alone insti- the 8.7 weighted publications claimed, only tution, because Melbourne University Private two successfully met the DEST criterion of Ltd is virtually completely dependent upon having been published in referred journals the University of Melbourne—that is, its and the like. The rest failed dismally. Mel- parent institution. Its degrees were accredited bourne University Private claimed, for ex- by the older university and most of its staff ample, two undergraduate textbooks whose actually worked at the established University latest editions had been edited by a Mel- of Melbourne. bourne University Private staff member. If An expert witness Professor Simon Mar- they had looked honestly at these publica- ginson told the committee: tions the university would have seen that My sense is that— they both failed on three counts, any one of which would have been sufficient to exclude Melbourne University Private Ltd— them from the list: that is, they were text- does not currently fulfil our understanding of books, which disqualifies them; they were what a university is. It is an exception which is an anthologies, which excludes them; and they anomaly in the system. It does not have a substan- were revised or new editions of existing tial staff in its own right, and the tactic has been to point to the University of Melbourne staff as works, which alone would exclude them. the supporting staff structure, when in fact that is I will not subject the Senate to further de- the structure of a university separate from the one tails along these lines but, to summarise, al- Melbourne University Private purports to be, as a most all of the so-called research publica- self accrediting institution. Yet it is fully con- tions as listed by MUPL were duds one way trolled by the University of Melbourne. So it is an or another—either that or they had been odd beast. submitted to scholarly journals by MUPL Former Victorian Premier John Cain also academics in their capacity as staff members made a submission to the inquiry. In his evi- of other universities and not of Melbourne dence Mr Cain pointed out that Melbourne University Private alone. The rub was this: University Private was not established using Victorian Minister Kosky had required of private capital. He said: them that the university produce at least one Instead of it being a private university with three weighted research publication per academic prestige, modern buildings on University Square staff member in that year. The university had that they would occupy ... all the buildings were manifestly failed to meet that core criterion. built at public expense. They— I ask myself simply this: how was it that meaning the University of Melbourne— this particular institution ended up on the list borrowed from the National Australia Bank ... up for the previous bill? Surely the DEST offi- to $22 million ... and it was a lemon. Do you cers had checked this before it was submitted know how many people from Melbourne Univer- by the minister. I can only expect—given the sity Private occupy those buildings? Six.

CHAMBER Thursday, 9 December 2004 SENATE 59

According to Mr Cain, Melbourne Univer- one for this country. The minister’s agenda sity Private Ltd has drained public money for the Australian university system may away from the parent institution, the Univer- well destroy that system. Certainly it will sity of Melbourne. The reason that only six lower our reputation for higher education staff occupy its grand new buildings on Uni- excellence in the eyes of the world. Our versity Square is that in reality, following a valuable international reputation, and with it merger with another company, Melbourne our most valuable export industry, will be Enterprise International—also owned by the compromised. In the meantime, the Senate, I University of Melbourne—MUPL is actually trust, can rest assured that, for now, this bill little more than an English language college before us does not seek to add a bogus insti- that does a bit of consultancy on the side. tution to the recognised list. Melbourne University Private Ltd was The Senate inquiry embarrassed the gov- merged with a larger consultancy and lan- ernment once again. We have shamed the guage-teaching company when it nearly went government and exposed its disingenuous under, three years ago. That was a rescue effort to sneak Melbourne University Private mission for a failed commercial venture of onto the list. That is a small but significant the University of Melbourne. Actual teaching victory for the quality of higher education in of degree courses and actual, genuine re- this country. The Australian higher education search—those core functions of a real uni- system has the Labor Party to thank for that. versity—are very much a minor sideshow at Senator ALLISON (Victoria) (1.27 Melbourne University Private. And yet this p.m.)—The Higher Education Legislation travesty of a university, this caricature, has Amendment Bill (No. 3) 2004 is now the the gall to present itself as a genuine, broadly third fix-it bill this year, or the fourth if you based academic teaching and research insti- count this bill’s previous incarnation. The act tution. And the government has the gall to try is only a year old, though! We are not sur- to hoodwink the parliament into listing this prised to have a third amendment bill for the institution in the Higher Education Support Higher Education Support Act 2003 inside a Act as eligible for various kinds of public year because we knew this legislation was money as a real university, standing along- flawed right from the start and the problems side other Australian universities. are now becoming clearer as the sector at- I have no doubt that the government’s tempts to implement the changes required by broader agenda here was to try to have Mel- that act. bourne University Private put on the list, just It is frustrating that the government did as many other entities of dubious prove- not listen to the criticisms made by the De- nance, reputation and quality have in the past mocrats and other opposition parties in De- sought to be presented as genuine institutions cember last year. The Senate had the respon- in this country. I take the view that this is Dr sibility to ask what went wrong with the Nelson’s agenda as he has announced that drafting of the original legislation and that the national standards for universities, the was why the Democrats supported referring MCEETYA protocols, are going to be wa- the original version of this bill to an inquiry. tered down. That is what the government is The manner in which the government has going to seek to do. This will allow a whole handled this legislation has been appalling. I list of private, commercial business colleges would like to remind the chamber about how and the like to acquire recognition as univer- we found out about this particular bill prior sities. The day that happens will be a sorry

CHAMBER 60 SENATE Thursday, 9 December 2004 to the election. The Australian Vice- ment Bill (No. 3) 2004. Our supplementary Chancellors Committee informed us, in early report to the inquiry details our concerns August, that the bill would be introduced with the opposition senators’ report. The in- within the next few days. At the time, the quiry found conclusive evidence and numer- government expected the opposition parties ous reasons for Melbourne University Pri- to support the passage of the bill at ex- vate to be included in the table B list of pro- tremely short notice and without prior warn- viders in the Higher Education Support Act ing. 2003. Most concerning of all was the gov- In his second reading speech on the ernment’s apparent willingness to short- Higher Education Legislation Amendment circuit the protocols and processes that up- Bill (No. 2) 2004, Dr Nelson said: hold and protect the reputation and standing of the Australian higher education system. The bill ensures that Open Learning Australia is subject to all the necessary provisions in HESA so The opposition senators’ report said: that FEE-HELP can be appropriately adminis- The institution fails to achieve the standards re- tered for OLA students, and that OLA is required quired by the MCEETYA Protocols, particularly to comply with the relevant quality and account- with regard to research profile and output. Its ability requirements. representatives have failed to convince Opposi- This bill makes further amendments to Open tion senators that the institution is a bona fide stand-alone entity that truly accredits its own Learning Australia because the government degrees … While MUPL may have met the re- could not even get the correction right the quirement of the Victorian Government for a first time. The Democrats understand that minimum of three per cent of students enrolled in several of the measures in the bill, especially award courses, this hardly makes it a genuine the amendments that relate to summer university. Further, it is financially dependent on schools, were developed in response to, and its parent institution. in consultation with, the sector and that some The Democrats agree with that. It is appro- of these are essential for the conduct of im- priate at this time to reflect briefly on the portant functions and activities of higher impact the Higher Education Support Act has education institutions. But we have to ask had on the sector to date. Already, 23 univer- why the problems were not identified sooner. sities have announced that they will increase In fact, if the government had not included their HECS fees next year, most of them by the provisions regarding Melbourne Univer- the full 25 per cent across all disciplines. sity Private with the other non-controversial Disappointingly, all three South Australian provisions of the bill, which we are now left universities will increase HECS by the full with, the bill probably would have passed 25 per cent allowed in 2005. We fear this back in August. I hope the sector sees this for will severely impact on student choice in what it is: a deliberate attempt on the part of South Australia and in other states. the government to force highly controversial The review of indexation that the sector matters through the parliament. had staked its hopes on will now be hastily The government must accept full respon- conducted within the confines of the De- sibility for the delays in the passage of this partment of Education, Science and Training bill. The Democrats agree with and support and the government, to the obvious disap- the conclusions, recommendations and most pointment of university students, staff and of the content of the opposition senators’ vice-chancellors alike. The Democrats’ report to the inquiry into the provisions of views on the indexation of university grants the Higher Education Legislation Amend- are on the record and well known, so I will

CHAMBER Thursday, 9 December 2004 SENATE 61 not discuss those matters further today. The will just thank members for their contribu- vice-chancellors raised their concern about tions to the bill and for their support of the the indexation review, along with a noticea- legislation. I commend the bill to the Senate. bly long list of other concerns, in a recent Question agreed to. document entitled ‘Achieving the vision for Bill read a second time. Australia’s universities: making Backing Australia’s Future and Backing Australia’s Third Reading Ability work’. In this document they also Bill passed through its remaining stages call on the government to provide further without amendment or debate. funding to meet the transition costs for the BUSINESS implementation of the new act, which they Rearrangement estimate has cost each university, on average, $1.2 million. The government provided each Senator COLBECK (Tasmania— university with just $250,000 to cover the Parliamentary Secretary to the Minister for cost of implementing the changes. It is now Agriculture, Fisheries and Forestry) (1.35 perfectly clear that this amount is inadequate p.m.)—I move: for some universities and that they believe That intervening business be postponed till af- the ongoing cost of the increased reporting ter consideration of government business order of requirements will also add significant costs the day no. 4 (Governor-General’s opening to their already tight budgets. speech). The long list of problems raised by the Question agreed to. AVCC in this document is no surprise to the GOVERNOR-GENERAL’S SPEECH Democrats. We knew the legislation and the Address-in-Reply policy were flawed from the start and fraught Debate resumed from 29 November, on with serious problems. I am sure we will be motion by Senator Knowles: hearing a lot more from the sector about the That the address-in-reply be agreed to: problems with the so-called higher education reforms in the coming years and in particular To His Excellency the Governor-General next year, the first year of operation under MAY IT PLEASE YOUR EXCELLENCY– the new act. I understand that, for some uni- We, the Senate of the Commonwealth of Aus- versities, the implementation process is par- tralia in Parliament assembled, desire to express ticularly difficult and time consuming. We our loyalty to our Most Gracious Sovereign and wish all the universities the best of luck in to thank Your Excellency for the speech which completing their administrative changes be- you have been pleased to address to Parliament. fore the commencement of the new academic upon which Senator Bartlett had moved by year. The Democrats are pleased that the way of an amendment: government accepted the Democrat and ALP That the following words be added to the ad- position to remove the Melbourne University dress-in-reply: Private provisions from the bill to allow its “, but the Senate is of the opinion that the passage. We will support the bill. (Time ex- Government’s failure to ratify the Kyoto Pro- pired) tocol, to take strong action to reduce Austra- lia’s greenhouse emissions and to urge the Senator COLBECK (Tasmania— United States of America to do likewise, is Parliamentary Secretary to the Minister for putting at risk international efforts on climate Agriculture, Fisheries and Forestry) (1.34 change”. p.m.)—In the interests of maintaining time, I

CHAMBER 62 SENATE Thursday, 9 December 2004

Senator MOORE (Queensland) (1.35 real role of Indigenous Australians and a p.m.)—I rise to make a few comments in move towards a united society. reply to the Governor-General’s speech at the Senator GEORGE CAMPBELL (New opening of parliament. I wish to concentrate South Wales) (1.38 p.m.)—I rise to respond on the issues around Indigenous Australians. to the Governor-General’s address, in par- As we have heard this week, there has been ticular to the government’s arrogant and mis- wide interest in the reformation of the role of leading claims regarding its record of eco- Indigenous Australians in our community. nomic management. If we are to take this Whilst the Governor-General in his speech government’s claims at face value, they are did talk about this being one of the issues the the economic managers who have done no government would pick up during its fourth wrong. By their reckoning every man, term, I am very much afraid of what is going woman and child in Australia is living in to happen to the community over the next complete economic security, and all Austra- few months. Already we have seen, and we lian businesses have to worry about is how to have heard in this place through other sena- spend their profits. While this government tors talking on issues that affect Indigenous may be content to bask in false glory and Australians, that there is a growing concern, indulge in endless rounds of self- and in fact a distrust, that is overwhelming congratulatory backslapping, the rest of us the community across our country. actually live in the real world. The truth is In this environment it seems to me that the that the government are more interested in Governor-General, given his speech, and in spin than in good economic management. particular the fourth term government must As both the election campaign and the accept that it is a major responsibility of this Governor-General’s address showed, this government to pick up the concerns of Aus- government is highly selective when it tralians. I am concerned that these issues comes to the state of our economy. It only have not been effectively picked up, and in wants to hear the good news. When con- fact that they have worsened, because in this fronted with bad news the government is place last week we had a motion concerning content to turn its back and look away. But the issue of Indigenous incarceration across just ignoring the hard issues does not make the country. Whilst there were attempts by them go away, nor does it adequately deal the government to defer this issue, describing with them. There is no doubt that Australia’s it as a state issue, that is just not accurate. I economy is performing strongly in a number say that, as the Governor-General pointed of respects, but it is equally true that this out that there would be concern by the gov- government’s inactivity and lack of policy ernment on this issue, let us see this put into vision in a number of key economic areas action. threaten our nation’s future prosperity and In terms of the process, we have seen thus the standard of living that the next gen- since the first Howard government a reluc- eration and those that follow will be able to tance to prioritise the issues of a strong, uni- enjoy. fied community which includes the Aborigi- Thanks to this government’s ineptitude, nal voice. We saw only this week the new Australia’s foreign debt has spiralled out of consultative committee being put in place. control. Back in 1995 John Howard and Pe- Let us hope that through this term of gov- ter Costello promised that one of their main ernment there will be an understanding of the economic objectives would be to bring down

CHAMBER Thursday, 9 December 2004 SENATE 63 foreign debt. Who can forget the spectacle families in very serious difficulty indeed, during that period of the infamous debt truck trying to service their debt levels. as it travelled around the country, with Peter A similar story emerges with respect to Costello driving it and the Prime Minister our nation’s disappointing export perform- sitting in the front seat, professing the disas- ance. Our current account deficit has risen to ter that Australia’s foreign debt was to the $13.7 billion, which is about 6½ per cent of national economy. And what have they done GDP. In its recent report card on the Austra- about dealing with that issue? Nine years lian economy the International Monetary later they have fallen asleep at the wheel. Net Fund was concerned enough to highlight our foreign debt has now reached a staggering CAD as a potential risk to the nation’s future $406 billion and is nearly double the amount economic health. Under Peter Costello, Aus- it was when Labor left office—a huge tralia has suffered 29 trade deficits in a row. growth over that nine-year period. Thanks to Average annual growth rates in exports has the activities of this government, every Aus- more than halved when compared to Labor’s tralian now has a personal debt burden of 13 years in government. Left unchecked, this just on $20,000. What are the government gap represents a serious constraint on sus- doing to tackle the debt? The answer is pain- tainable economic growth. Australia’s poor fully clear: the same as they have been doing export performance stems from this govern- for the last nine years—nothing. They have ment’s inability to think strategically about no strategy, they have no policies and they the future of our economy. In its nine years have no idea how to deal with the explosion in office the government has consistently of our foreign debt and our current account failed to invest in Australian innovation. This deficit. has cost Australia dearly in potential export In addition to the foreign debt, in the cor- revenue and jobs. responding period under the Howard gov- After cutting around $5 billion of support ernment we have seen an explosion in to industry between 1996 and 2000, the gov- household debt. The ratio of household bor- ernment attempted to correct its horrendous rowings compared with income has bal- mistakes with the Backing Australia’s Ability looned from 50 per cent in the early 1990s to package. Whilst this package contained 150 per cent. In fact, Australian families are many positive measures, it was in essence now amongst the most indebted in the world. too little, too late. This year’s supposed re- It is argued by representatives of the coali- vamp, Backing Australia’s Ability II, com- tion that this is not necessarily a bad thing, mits the same mistakes as its predecessor: on that this is people borrowing mortgages in the surface the $5.3 billion program looks order to buy property. The reality is that impressive; however, it does not allow for when you look at the breakdown of the debt, inflation. After peaking in 2005-06, spending it is not just about borrowing for mortgages. under the program slumps by one-third as a Many families are selling their equity in their proportion of GDP before slumping again to homes to borrow to consume. The biggest just over $1,000 million in 2010-11. borrowing that is occurring in our economy Business has reacted accordingly to these at the moment is for the purposes of con- years of chronic policy failure: only four per sumption, not for the purposes of purchasing cent of Australian firms do any research and assets. That bubble has to finally burst. It development at all. In 2002-03 only 37 com- will not take much movement in interest panies spent more than $10 million on R&D rates to see this economy suffer and to see

CHAMBER 64 SENATE Thursday, 9 December 2004 and only 30 companies spent more than the efficiency and higher productivity into our equivalent of three per cent of sales on re- industries and, as a consequence, we got sig- search. This is well behind world’s best prac- nificant growth in the export of manufac- tice. In Australia, private R&D spending ac- tured goods. That investment made by every counts for around 0.56 per cent of one per worker in this country during that period has cent of national revenue. Compare this to been squandered by this government over the world leaders, Finland, whose R&D expendi- past nine years, and it has put our economy ture is roughly 1.2 per cent of national reve- in a substantially perilous state to meet the nue. Australia’s private sector invests at half challenges of globalisation into the future. the rate of the US and at one-third of the rate The sad fact is that it is these very indus- of Japan and Finland. We are barely treading tries, value-adding high technology manufac- water while our competitors are investing in turing industries, that Australia needs to nur- a better economic future and creating a com- ture if we are going to sustain a competitive petitive advantage over Australian compa- base and a competitive economy globally nies seeking new export markets. well into the future. It is these industries that But nowhere have the government’s eco- will provide the jobs and new export markets nomic policy failures been more keenly felt that will sustain our economy in the years to than in Australia’s manufacturing sector. come. But these industries are being denied Since the Howard government came to the chance to grow. Under the coalition, Aus- power 63,800 Australians have lost their jobs tralian investment in manufacturing is one- in manufacturing. What is more, exports of tenth of the average achieved under the pre- manufactured goods have plummeted under vious Labor government. What is more, un- this government’s watch. Australia now has a der the Howard government we are attracting trade deficit in manufactured goods of over less than one-third of the global investment $74 billion. In 2002-03 alone, for every dol- we were attracting under Labor. lar’s worth of manufactured goods that was This whole situation has been exacerbated produced in this country for local consump- by the skills shortages we are suffering right tion, we imported $2.55 worth of manufac- across all our industries. This is now identi- tured goods from overseas. Particularly dis- fied as a major impediment to, a major con- turbing is the long-term downward trend in straint on, the capacity of our industries and the growth of elaborately transformed manu- companies to grow, maintain their competi- factures. Since this government came to tive edge and to compete globally with inter- power, ETM export growth rates have national competitors. Manufacturing, along slumped from 17.7 per cent under Labor to a with a host of other industries, is in the grips dismal 1.8 per cent. The only OECD coun- of a skills shortage. Manufacturing busi- tries we now outperform in this area are Tur- nesses of all sizes cannot find the skilled la- key, Greece, New Zealand and Iceland. bour they require. The problem is especially This is probably one of the greatest traves- acute in the traditional trades: car manufac- ties of the past nine years of this government. turing, electrical, electronics and construc- This country made enormous sacrifices in tion—the list of industry sectors suffering the eighties under the Hawke-Keating gov- from a shortage of skilled labour goes on and ernment to get our industrial base competi- on. In fact, over the next five years 170,000 tive so that we could compete in the global people will be leaving the traditional trades marketplace as part of the expansion of the and there will be only 40,000 new entrants global economy. This was done by getting coming into them.

CHAMBER Thursday, 9 December 2004 SENATE 65

How can you expect Australian industry to fact an industry training centre operating in continue to create wealth, to compete effec- the minister’s own electorate with a capacity tively in the export market and to create jobs to train something like 3½ thousand con- when they cannot even find enough staff to struction workers or apprentices a year. keep their businesses running, let alone grow There are examples like Austool, at Ingle- them for the future? Once again the govern- burn in the seat of Macarthur, which has ment has badly let down Australian industry. been specifically set up to train toolmakers Until the recent election the government for the toolmaking industry, to address a completely ignored the skills crisis that has shortage. That could have been substantially been consistently raised as an issue. There expanded at a lot less cost than that required have been inquiries by Senate committees in to establish these technical colleges, and that respect of the issue, and the government has would have been able to get people into stood, substantially flat footed, and allowed training much more quickly. I refer also to the crisis to continue to grow without taking the Hunter Valley training facility; the Aus- any initiatives to try to address it. tralian Aviation Centre, in Brisbane; the We have seen a belated response to it dur- Bosch-RMIT program, in Victoria; and the ing the last election. We have seen the gov- Toyota T3 program, in New South Wales. All ernment announce that they will put in place are in existence, all are targeted at providing 24 technical colleges to be run by industry, skilled labour for particular key industry sec- the private sector. One has to ask the ques- tors and all could have been substantially tion: is this a genuine attempt to address the expanded at a minimum cost to our econ- issue of skills shortages in our community or omy. They could have dealt with the issue is this the start of a process to transfer the much more rapidly than the planned techni- public sector capacity that exists in our cal colleges will. TAFE system into the private sector for the Simply moving in the direction that we delivery of skills and vocational training in are moving is going to put greater pressure the longer term? Is this in fact the start of a and strain on our underfunded TAFE net- wind-down of our TAFE system? I think work as it currently exists. The TAFE system there is a genuine concern out there that that is providing enormously effective training in is the real strategy behind the government’s a range of skills to a range of industries announcement of the new technical colleges. across the country. It is in existence, it has Why would the government go to the extent the resources, it has the teachers, it has the of introducing these technical colleges to equipment, it has the knowledge, it has the address a skills shortage? There are ample understanding and it has the respect of the examples around this country of existing people who are seeking that training. It programs in place within industry that are would have been a much more efficient use delivering skilled labour across a range of of taxpayers’ dollars to have focused on sectors and working very well. Those could building and investing in those TAFE col- have been built upon very effectively, very leges rather than on moving to establish the efficiently and at a minimum cost to expand sort of structure that the government has the capacity of our industry to train new proposed to deal with the skills issue. tradespeople. In conclusion, I simply want to make three There is the example in the construction points. The government has now set its industry of the skill centres run as a result of fourth term agenda and, sadly, it looks to me levies applying in that industry. There is in as if we are about to see history simply re-

CHAMBER 66 SENATE Thursday, 9 December 2004 peating itself. There are long-running eco- QUESTIONS WITHOUT NOTICE nomic sores in this country and fragilities in James Hardie Group of Companies the Australian economy which are currently Senator WONG (2.01 p.m.)—My ques- being ignored or treated with bandaid solution is to Senator Ellison, the Minister repre- tions and which, in terms of their impact on senting the Attorney-General. I refer the min- the economy over the longer term, will have ister to today’s media report that James Har- serious ramifications when they start to crack die’s Dutch parent company may agree to open. The reality is that the motherhood legal liability for compensation payments to statements that we have heard from this gov- Hardie’s victims. Given James Hardie’s fail- ernment are no substitute for having a strate- ure to honour its commitments in the past gic vision. It is time the government showed and with the uncertainty surrounding the some courage and actually identified what agreement, what steps has the government are the hard issues and, more importantly, taken to ensure full and abiding justice for started to adopt policies to address them. Hardie’s victims and their families? Does the Debate (on motion by Senator Minchin) government still endorse the proposed New adjourned. South Wales legislation that would ensure Sitting suspended from 1.58 p.m. to asbestos victims are able to take action 2.00 p.m. against the parent company even though it is MINISTERIAL ARRANGEMENTS now based in the Netherlands? Is the minister aware that the Jackson inquiry expressed Senator HILL (South Australia— doubts whether judgments under this type of Minister for Defence) (2.00 p.m.)—by legislation, which is both retrospective and leave—I advise the Senate that two ministers Hardie specific, would be enforceable in the will be absent from question time today. Netherlands in the absence of a treaty? What Senator Ian Macdonald is in Micronesia at- action, if any, has the government taken to tending the Western and Central Pacific ensure compensation claims can be taken Fisheries Commission and the Forum Fisher- and enforced against Hardie’s Dutch parent ies Commission ministerial meetings. During company? his absence, Senator Abetz will take questions on behalf of the portfolio of Fisheries, Senator ELLISON—We have seen today Forestry and Conservation and Senator Rod the passing of the James Hardie (Investiga- Kemp will take questions on behalf of the tions and Proceedings) Bill 2004, which is portfolio of Agriculture, Fisheries and For- designed to assist the ASIC investigation into estry. Senator Ian Campbell is on his way to that matter. Of course, that is one aspect of Buenos Aires for the conference of parties on this. The Australian government is commit- the climate change convention. In his ab- ted to ensuring that people with asbestos re- sence, Senator Chris Ellison will take ques- lated diseases are accorded justice. The Aus- tions on behalf of the portfolios of Environ- tralian government calls upon James Hardie ment and Heritage; Transport and Regional to honour its duty to keep the Medical Re- Services; and Local Government, Territories search and Compensation Foundation afloat and Roads. so that all victims receive proper compensation, by withdrawing its requirement that the foundation release it from liability. On 5 November 2004, the Common- wealth, state and territory Ministerial Coun-

CHAMBER Thursday, 9 December 2004 SENATE 67 cil for Corporations agreed in principle to lated to James Hardie could form the basis consider options for legislative reform in the for legal action in the Netherlands depends event that the current negotiations between on Dutch law. Proceedings would need to be James Hardie, the Australian Council of commenced in the Dutch courts. Trade Unions and asbestos victims do not We also foreshadowed with the Nether- reach an acceptable conclusion. The Austra- lands government that once the New South lian Securities and Investments Commission Wales inquiry released its findings we might is undertaking a full investigation of the con- seek the assistance or cooperation of the duct of James Hardie in relation to matters Netherlands government or its authorities to raised by the New South Wales commission give effect to the recommendations of the of inquiry and will not hesitate to prosecute inquiry. The Netherlands government would contraventions of corporations legislation. consider a formal request for a treaty but has Many of the recommendations that came noted that it would be very unusual for the from the New South Wales inquiry are mat- Netherlands to have such an arrangement ters that fall within the responsibility of the with a non-European country and that there Treasurer. I understand the Treasurer is con- may be hurdles to overcome with the restric- sidering whether any legislative changes to tions posed by EC law. Formal discussions corporate law are required in light of that have not yet taken place with the Nether- inquiry’s report. lands government concerning a treaty, since In relation to the Netherlands, I can advise the proposals on which a treaty would be that there are no formal treaties between based are being formulated. Australia and any foreign country for the This is a matter that the Australian gov- reciprocal enforcement of judgments. The ernment take seriously. We have demon- only exception, as I understand it, is the strated that in relation to this matter by the United Kingdom. The reason for this, as I urgent passage of the James Hardie bill and, understand it, is the jurisdictional basis of the of course, we have had the cooperation of all judgments of the European countries. Of parties in that regard. We stand ready to en- course, the United Kingdom has a similar sure that according to law those liabilities are legal system—a common-law based sys- met in relation to the victims that Senator tem—to Australia. There is no treaty be- Wong has referred to. tween Australia and the Netherlands or in- Senator WONG—Mr President, I ask a deed other European countries in relation to supplementary question. Is the minister con- the enforcement of judgments. fident that a treaty is not necessary? In his With respect to contact between the two answer the minister referred to the Australian countries, the Australian government made government’s view that they would review contact with the Netherlands government the findings of the Jackson inquiry. It re- when the question of enforcement of Austra- ported in September and raised the issue of lian judgments first arose. The Netherlands whether a treaty would in fact be necessary government has formally confirmed the posi- for the sort of legislation the New South tion already understood by the Attorney- Wales government proposes to impose. If a General’s Department—namely, that Dutch treaty is not necessary to enforce judgments law allows generally for conventional Aus- arising from this legislation, will the minister tralian judgments to form the basis of legal table the advice that supports this claim? If action in the Netherlands without a treaty. not, why not? Whether a specific Australian judgment re-

CHAMBER 68 SENATE Thursday, 9 December 2004

Senator ELLISON—It is a well- Indigenous Council? Is the minister aware of established practice that the government does any alternative policies? not table advice that it receives in relation to Senator VANSTONE—I thank Senator legal matters, but what I can say, and I reiter- Payne for her question. She, along with all ate, is that the Netherlands government itself senators on this side of the chamber, is de- has noted that it would be very unusual for termined to see an improvement in the out- the Netherlands to have such an arrangement comes for and service delivery to Indigenous with a non-European country. We are con- Australians. I wish I could say that of all tinuing to look at the matter but you have to members opposite. I can say it of some but remember that European countries have a not of others. We have had the first meeting different legal system from us. We have an of the National Indigenous Council today. I agreement with the United Kingdom in rela- am pleased to say that that meeting marks tion to the reciprocity of judgments and that the successful beginning of a new era of In- is facilitated by the fact that we are both digenous affairs—a very new era of Indige- common-law countries. With European nous affairs. Indigenous Australians can now countries, it is somewhat different. We are sit down with nine relevant federal cabinet not dismissing this but we are continuing ministers and express their views on a wide discussions with the Netherlands, and even range of issues. the Netherlands government has pointed to The council is made up of people with a the difficulties we might face in relation to wide range of views and experience. Some this. Nonetheless, we remain committed to of them have not ever had the opportunity to pursuing this issue. contribute to policy making at a national DISTINGUISHED VISITORS level. These people are achievers in their The PRESIDENT—Order! I draw the at- own right. And they have not been asked to tention of honourable senators to the pres- sign nor have they signed a confidentiality ence in the chamber of a parliamentary dele- agreement. I mention that because, on what gation from Kenya, led by the Speaker of the could be a positive day, when not only In- National Assembly, the Hon. Francis Ole digenous Australians but also the govern- Kaparo MP. On behalf of all senators, I wel- ment of the day recognise this historic day, come the delegation to Canberra. With the we have one spoiler who says, ‘They’ve concurrence of honourable senators, I pro- been told they can’t speak.’ Who would that pose to invite the Speaker to take a seat on be? He is sitting opposite—it is Senator Carr. the floor of the Senate. Senator Carr cannot help himself. Honourable senators—Hear, hear! Yesterday and for part of today the Na- Mr Kaparo was seated accordingly. tional Indigenous Council has been briefed by the most senior public servants in Austra- QUESTIONS WITHOUT NOTICE lia—a courtesy, as best I know, never ex- Indigenous Affairs: National Indigenous tended to them in the past by any Australian Council government. The council quizzed the most Senator PAYNE (2.09 p.m.)—My ques- senior public servants, as I understand it, in a tion is to the Minister for Immigration and more effective way than any estimates com- Multicultural and Indigenous Affairs. Will mittee has ever done. the minister inform the Senate about the out- Senator Carr—Let’s see the Hansard! comes of the first meeting of the National

CHAMBER Thursday, 9 December 2004 SENATE 69

The PRESIDENT—Order! Senator Carr, tralian community of Mulan. And who is out you continue to shout across the chamber there spoiling? Senator Carr. He says they during question time. I ask you to desist. have been pushed into it. This poor commu- Senator VANSTONE—Having met with nity wants a petrol bowser and we are pre- the Prime Minister, council members are pared to make an agreement with them to now meeting to discuss some of their own give them the petrol bowser. Senator Carr views. The council gave us advice on our thinks it is a dreadful thing that, in exchange three priority areas—there is a lot more to for a petrol bowser, this community will say on this—which we will take on board. make an agreement to get better health out- Everyone but federal Labor recognises that it comes for their children. And that man over is time for change—Indigenous leaders and there says that this is a bad thing. (Time ex- state and territory leaders recognise that pired) there needs to be change—that what we have James Hardie Group of Companies been doing for first Australians is not good Senator WEBBER (2.14 p.m.)—My enough. When almost everyone wants to put question is to the Minister representing the their political differences aside and just get Treasurer, Senator Minchin. I refer the minis- on with the job, it is disappointing that only ter to the Treasurer’s claim in the House last one party in Australia wants to be a spoiler week and in a subsequent media statement and that is the federal Labor Party—not the that the New South Wales government had state Labor parties. On the dawn of a new failed to meet the request of ASIC to abro- era, their shadow minister has distanced gate legal and professional privilege in re- them and taken them further and further— spect of materials and records relating to (Time expired) James Hardie. Given ASIC is a Common- Senator PAYNE—Mr President, I ask a wealth statutory agency, does the minister supplementary question. The minister out- agree that it is a matter for the Common- lined in her response the important capacities wealth to determine ASIC’s powers and that of the individual members of the National it would be inappropriate for the New South Indigenous Council and their engagement Wales government to possibly put ASIC in a with the public sector today. Can the minister more favourable position under state legisla- advise the Senate of any further outcomes of tion than under its own Commonwealth leg- the meeting and, as I asked in my first ques- islation? Is the minister aware that the New tion, any alternative policies? South Wales government in fact wrote to the Senator VANSTONE—Yes, Senator Treasurer highlighting this issue for action Payne, I can. One of the interesting things to some weeks ago? What action has been me from the meeting this morning was the taken in response? very strong emphasis on responsibility that Senator MINCHIN—The minister re- must be taken by families and communities. sponsible for financial services and agencies There is a lack of understanding as to why such as ASIC in this chamber is Senator governments have not given communities Coonan, as the opposition should well know. and families that responsibility in the past. I am happy to give Senator Coonan the op- To that end, I refer to a draft shared respon- portunity to answer the question. sibility agreement, which looks pretty good The PRESIDENT—If Minister Coonan to this government and to the Western Aus- is willing to answer the question, she may tralian government and to the Western Aus- help the Senate.

CHAMBER 70 SENATE Thursday, 9 December 2004

Senator Chris Evans—Mr President, on that ASIC investigations will indicate that a point of order: I appreciate your trying to some further actions should be taken. help facilitate the question being answered. I As I understand it, the Commonwealth has just indicate that the question referred to not yet received detailed information—I may claims made by the Treasurer. As Senator be incorrect about this and I will correct it if Minchin represents him in this place, I I need to get further information for the Sen- thought he was the appropriate person to ask. ate—about Premier Carr’s proposal to retro- If the government would prefer Senator spectively unwind the restructure. It is cer- Coonan answer the question, then obviously tainly a proposal, and we need to very care- that would assist the Senate. fully consider whether that would ultimately The PRESIDENT—Thank you all very be for the benefit of asbestos victims. Our much for your cooperation but, quite frankly, main concern is that victims receive timely if the minister can assist the Senate in an- compensation. In order to better look at swering that question I would ask her to do whether there have been any infringements so. If not, we will move on to the next ques- of the Corporations Law, there was of course tion. first the inquiry and now ASIC has under its Senator COONAN—Of course I am very purview a proper inquiry and investigation. happy to accommodate Senator Webber’s This government has acted expeditiously to question. It deserves serious consideration ensure that ASIC can have access to informa- and that is what it will get. As Senator Elli- tion and get over some of the evidentiary and son said earlier, yesterday saw the passage of other burdens that might inhibit its investiga- legislation that facilitated the use of evidence tions. I think it is fair to say that we have as from the Jackson inquiry in New South our very clear focus trying to bring this mat- Wales that would enable ASIC to take for- ter to a satisfactory conclusion for the vic- ward its considerations and come to a view tims. about potential action that may flow from the Senator WEBBER—Mr President, I ask whole of the issue to do with James Hardie. a supplementary question. I remind both The government remains of the view— ministers that my initial question was about Senator Ellison and I have said so consis- comments made by the Treasurer. But, see- tently in this chamber—that James Hardie ing as ministers opposite are keen to ensure a should honour its obligation to fully com- high standard of public debate on James pensate asbestos victims. I do think we need Hardie, will either minister ensure that the to be very clear about that; nobody is dis- government will require the member for agreeing about that. But until the results of O’Connor to retract his outrageous claim that the negotiations between James Hardie and Hardie’s victims are ‘ambulance chasers’? the unions and asbestos victims represented Does the minister agree that Hardie’s victims by the ACTU are concluded it would be are owed an apology by the member for premature for governments to be committing O’Connor for these insensitive remarks? Will themselves to particular courses of action. the government demonstrate their support for Obviously, it is better for everyone, particu- Hardie’s victims and their families by requir- larly the victims whose interests we have to ing an apology from Mr Tuckey? bear in mind, if you can get a resolution. It is Senator COONAN—Once again, I will always better than having to resort to entry and accommodate Senator Webber’s sup- forcement action, although it may well be plementary question. I have responsibility in

CHAMBER Thursday, 9 December 2004 SENATE 71 this chamber to answer on behalf of the port- bor’s, were submitted in full for costing to folio and on behalf of the government. I have Treasury and the Department of Finance and said that the government has taken expedi- Administration during the campaign. They tious action to facilitate the proper investiga- are clearly affordable. They will be delivered tion of this matter from the point of view of in full and they will leave the budget well in ASIC, the Commonwealth federal agency the black. and the Commonwealth regulator. But I think Of course, as with so many issues, the La- we have all agreed—certainly the govern- bor Party have been just a touch hypocritical ment supports the view—that the victims are on this issue of the cost of election promises. the ones whose particular interests need to be Last year they criticised us for running a sur- taken into account, together of course with plus of $7.5 billion, which they then claimed others. We want to facilitate the early resolu- was far too big. Following this year’s budget tion of this matter. We will continue to do they attacked us for running down the sur- everything we need to do to investigate the plus. Of course, in the election campaign matter under the Corporations Law. If people they accused us, hypocritically, of promising are answerable under the law, then so be it. far too much in the way of spending and tax Howard Government: Economic Policy cuts. They attacked our relatively modest Senator WATSON (2.21 p.m.)—My $8.4 billion in promises and at the same time question is directed to Senator Minchin, the they promised new spending in total worth Minister for Finance and Administration. $39.6 billion over four years—nearly five Will the minister inform the Senate of how times as much as we promised. It really is the Howard government continues to deliver the greatest spending spree ever promised by sound economic management? Is the minis- any party in the history of Australian politics. ter aware of any proposals to substantially They did claim that this spending was par- increase government spending? tially offset by some savings, which we have no doubt would have failed to materialise, Senator MINCHIN—I thank Senator just like the mythical savings promised by Watson for his question and acknowledge his Mayor Latham to fund the Liverpool Council very strong interest in sound financial man- spending spree. In the unlikely event that agement—like all of us on this side. In the they did achieve all these savings, Labor’s course of the recent election campaign the net spend in the campaign would have government released the final budget out- amounted to $9.5 billion over four years—13 come for the last financial year, 2003-04, per cent more than we promised to spend— which showed a surplus of $8 billion. That and that is if you assume they met all their was the sixth surplus run by our government savings. and has resulted in a fall in net debt to just $23.5 billion, down from the $96 billion of The worst thing about their program was debt that we inherited from Labor. Of course, that the spending blow-out occurred over the these surpluses have come about because our forward estimates, while a lot of their sav- government, unlike our predecessors, does ings disappeared altogether. The infamous live within its means and will continue to do Medicare Gold is a classic example of that so. In the course of the last election cam- phenomenon. That particular policy had a paign, for example, we made promises worth price tag of $5.8 billion per annum and was around $8.4 billion in new spending over the estimated by Finance to grow at 10 per cent next four years. These promises, unlike La- per year—an additional $500 million every year to pay for it. It is no wonder Mr Tanner

CHAMBER 72 SENATE Thursday, 9 December 2004 called it a grossly irresponsible policy. Labor has obviously got a responsibility to make did not submit any policies in full to Treas- the decision as to how it is announced. That ury or Finance for full costing by the dead- is really at the minister’s discretion. I really line. A lot of their policies were not submit- cannot see the issue at all. ted for costing at all. So, indeed, the cost of Senator BOLKUS—No wonder the code their promises could well have exceeded the is not much respected in government. Mr massive $39.5 billion which was estimated. President, I ask a supplementary question. It is clear that on 9 October the Australian Why did Mrs Kelly advise Senator Boswell people made a judgment that the coalition of the $220,000 Horse Australia grant before was best able to keep the economy strong, the proponent and before the local member the budget in the black and interest rates low, Ms Kirsten Livermore? Exactly what role and of course they were right. Today’s un- did Senator Boswell have in the administra- employment figures confirm the wisdom of tion of this and other Regional Partnerships their judgment. The unemployment rate for grants? Is the Leader of the Government sat- November was only 5.2 per cent, the lowest isfied that all actions taken by Senator Bos- in nearly 30 years. well and Mrs Kelly, as well as Senator Bos- Regional Services: Program Funding well’s failures while apparently acting on her behalf, are fully in compliance with the min- Senator BOLKUS (2.25 p.m.)—My isterial code of conduct? question is to Senator Hill representing the Prime Minister. I draw the minister’s atten- Senator HILL—If the very distinguished tion to the Prime Minister’s code of ministe- Senator Boswell, the well-known and highly rial conduct, and I refer him to the Regional respected Queensland senator, was asked to Partnerships letter from the former parlia- make an announcement in Queensland to his mentary secretary, Mrs Kelly, to the Horse constituents, that would seem to me to be a Australia 2005 project, dated 26 November sensible thing to do. 2004. Is the minister aware that this letter Senator Chris Evans—He didn’t make contains advice that Mrs Kelly had written to the announcement. Why didn’t he make the Senator Boswell advising him of funding announcement? approval and asking him to liaise with the Senator HILL—I actually do not know proponents as to the date of the announce- why he did not make the announcement. I ment? Can the minister confirm that Mrs am a bit surprised that he did not make the Kelly asked the proponent, would you be- announcement because I know that Senator lieve, to keep the advice secret until a later Boswell is pretty keen on making an- time and explain why Senator Boswell did nouncements in Queensland, particularly not act on the minister’s request to announce announcements that benefit rural and re- the grant? Minister, contrary to the terms of gional Australia. Senator Boswell is a mem- the code of ministerial conduct, why was a ber of a coalition committed to helping the ministerial funding decision made contingent people of the bush, and these grants are for on an announcement by a government sena- that purpose. We are pleased that they have tor who was neither a minister nor a parlia- been made. They can benefit local regional mentary secretary? communities, improve their infrastructure Senator HILL—I cannot see a code of and enable them to become more competi- conduct issue in the question that has been tive. That is why the grants were made and it put to me by Senator Bolkus. The minister is a good program.

CHAMBER Thursday, 9 December 2004 SENATE 73

Nuclear Energy: Waste Storage the minister for finance is aware that the note Senator ALLISON (2.29 p.m.)—My in the Auditor-General’s certificate relating question is to the Minister representing the to this error states: Minister for the Environment and Heritage. … there was a clear breach of section 48 of the Has the minister made any progress in identi- Financial Management and Accountability Act fying a site for the Commonwealth nuclear 1997 … the accounts and records were not kept in waste dump? Will the minister release the such a way as to ensure all appropriated moneys short list of possible sites for storage of were recorded by the Department. Commonwealth nuclear waste? Is the gov- Is the minister aware that, whilst the net ef- ernment still wedded to the idea of storing fect of this error was $58 million, the total nuclear waste on an island and, if so, which amount incorrectly accounted for over a one? three-year period was $404 million? In light of this $400-plus million breach of Com- Senator ELLISON—The question Sena- monwealth law, what action has the minister tor Allison raises is an important one. As you taken with regard to the Natural Heritage know, I am representing the minister today. I Trust? will take the question on notice and see if I can get back to Senator Allison before the Senator MINCHIN—That particular close of question time today. Auditor-General’s report has not been drawn to my attention. But I will seek information Senator ALLISON—Mr President, I ask on it and let Senator Sherry know what ac- a supplementary question. Can the minister tion is contemplated in response to it. also advise whether the government has approached any other Australian state or terri- Senator SHERRY—A $400 million error tory government—or a foreign country for has not been drawn to the attention of the that matter—with a view to convincing them minister! Mr President, I ask a supplemen- to store Commonwealth nuclear waste on a tary question. Isn’t this the third major audit permanent basis? If so, can the minister de- report in the last month containing scathing tail the substance of those approaches? Has criticisms of government financial manage- the minister moved to limit generation of ment, including report No. 15, which high- nuclear waste—for example, by the proposed lighted $47 billion in inappropriate expendi- new reactor at Sydney’s Lucas Heights— ture by three departments? We have had the until the Commonwealth has safely stored Department of Defence audited accounts the waste it has already generated? qualified three years in a row, with $8 billion in unaccounted assets. Isn’t the Auditor- Senator ELLISON—There are a number General’s highlighting of this financial mis- of questions in the supplementary and my management by the government of the Natu- previous answer applies. ral Heritage Trust—another $400 million— Natural Heritage Trust just another example of the Howard govern- Senator SHERRY (2.30 p.m.)—My ment’s financial incompetence, presided over question is to Senator Minchin, the Minister by you? for Finance and Administration. Is the minis- Senator MINCHIN—The title of ‘King ter aware that the annual report of the Natu- of Financial Incompetence’ rests with the ral Heritage Trust for 2002-03, which was former Labor government, which presided tabled in parliament on Tuesday, contains an over the most massive rort ever exploited extraordinary 1½ pages of account correc- upon the Australian people through the Cen- tions, totalling $58 million? I ask whether

CHAMBER 74 SENATE Thursday, 9 December 2004 tenary House lease, the report on which will Senator HILL—I have said I will refer be delivered this afternoon. The Australian the question to the minister. people will realise what a scandal was over- Telstra: Services seen by the former Labor government for the Senator CONROY (2.35 p.m.)—My benefit of the Labor Party—the greatest rent question is to Senator Coonan, Minister for rort ever seen—and it has been this govern- Communications, Information Technology ment’s job to clean up that mess in the last and the Arts. I refer to Telstra’s practice of eight years. issuing mass service disruption notices fol- Nuclear Energy: Floating Power Stations lowing bad weather to exempt it from normal Senator BROWN (2.33 p.m.)—My ques- customer service standards. Is the minister tion is to the Minister representing the Minis- aware that Telstra has issued over 100 of ter for Foreign Affairs. It relates to the float- these notices so far this year? Does the mining nuclear power stations to be produced by ister agree with the Deputy Prime Minister, Russia. Has the government expressed con- Mr Anderson, who recently identified a need cern that one of the first installations of these to tighten the capacity of telecommunica- nuclear power stations will be at Kamchatka tions carriers to obtain exemptions from their on the Pacific coast of Russia? Has the gov- community obligation timetable in the face ernment discussed the matter with the Indo- of claimed problems with weather? Alterna- nesian government, which has expressed tively, does the minister stand by her com- interest in the purchase of floating nuclear ments in the Senate last August when she power stations? What is the nature of the stated: discussions Australian government officials There is certainly no evidence—at least, none that have had with Russia about floating power has been brought to my attention—to suggest that stations, and what was the outcome of those Telstra are using outage notices inappropriately, discussions? nor that they would do so. Senator HILL—Unfortunately, I do not If so, has the minister told the Deputy Prime have a brief on floating nuclear power sta- Minister that he is wrong? tions. But I will refer the question to the min- Senator COONAN—I thank Senator ister, and he will have about two months to Conroy for the question. The important point think of an appropriate answer. about this question is that we do in fact have Senator BROWN—Mr President, I ask a a customer service guarantee framework that supplementary question. The minister should allows companies to claim exemptions from be acquainted with matters as important as time frames which they cannot meet because this one which have been discussed between of circumstances beyond their control, such governments. I ask the minister whether he as severe storms, bushfires, lightning strikes will report back to the parliament this after- and cable cuts. Where exemptions cover a noon, after consulting the Minister for For- large area, they come under the category of eign Affairs, on the nature of the discussions ‘mass service disruptions’. For example, between Australian government officials and some events have the potential to dramati- Russian officials regarding floating nuclear cally increase the number of faults or prevent power stations. Will the government report field staff from accessing an area to remedy back to this parliament in the new year on the fault. the full details of those discussions, if it can- To claim a mass service disruption, a pro- not do so this afternoon? vider must either contact customers indi-

CHAMBER Thursday, 9 December 2004 SENATE 75 vidually or publish in the newspaper details Senator CONROY—Mr President, I ask of the event causing the mass service disrup- a supplementary question. In light of the tion, the geographical impact, the affected Deputy Prime Minister’s comments, will the number ranges and the likely duration of the government take action to ensure that tele- disruption. The government and the ACA do communications carriers comply with their closely watch the use of MSDs, and we community service obligations? Will gov- would be concerned if it became clear that ernment now adopt the recommendation of carriers were using the MSDs to try and the Senate Environment, Communications, avoid having to comply with the strict cus- Information Technology and the Arts Com- tomer service guarantee time frames. The mittee that their customer service guaranteed ACA had KPMG, the accounting firm, con- regime should be amended to ensure that duct an audit of the processes used by Telstra mass service disruption notices cannot be and Optus when claiming MSDs. The audit used by carriers to avoid their obligations to found that the companies had a robust sys- properly maintain their networks and to pro- tem for assessing when it was appropriate to vide an acceptable standard of consumer ser- have an MSD. Since February the ACA has vice? been closely monitoring the use of mass ser- Senator COONAN—I have outlined vice disruptions by Telstra and reconciling what action has been taken to ensure that the use of MSDs with detailed weather in- mass service disruptions are only used in formation from the Bureau of Meteorology appropriate circumstances. What I do want to to make sure that MSDs are only being used remind those listening is that Labor’s con- in legitimate circumstances. sumer safeguards in telecommunications That would seem to be the appropriate were virtually nonexistent. Not only was course—that they are needed in legitimate there not a customer service guarantee or any circumstances. It is important that the cir- assistance for consumers, but also the figure cumstances be verified so that it is appropri- I have is that under Labor the most remote ate that, when there is a disruption of a char- customers in Australia could expect to wait acter, kind and dimension necessary to have up to 27 months even to get a phone. Let a mass service disruption, that is what will alone worrying about whether there was a happen. But it is, of course, diverting to say mass service disruption, they could not even the least that these kinds of questions come get a phone so that it could go out of order! from the Labor Party, who never had any- This government take our obligation to con- thing like a customer service guarantee sumers in telecommunications matters very framework to assist consumers. Labor’s con- seriously, and no customer has to wait more sumer safeguards were completely nonexis- than 20 working days for a new phone ser- tent. This government takes very seriously vice. It is about time that the Labor Party the need to roll out and deliver good tele- realises that we have built these safeguards communications service facilities. It is im- and we will maintain them. portant that the safeguards work; it is impor- Insurance: Public Liability tant that they deal with disruptions and it is Senator HUMPHRIES (2.41 p.m.)—My important that disruptions are only claimed question is to the Minister for Communica- under legitimate circumstances. All of these tions, Information Technology and the Arts, matters are being attended to so that they are Senator Coonan, the Minister representing only being used appropriately and they are the Assistant Treasurer. Will the minister being properly monitored.

CHAMBER 76 SENATE Thursday, 9 December 2004 advise the Senate how the Howard govern- As well as these general improvements, I ment has helped make public liability insur- have been advised of a number of positive ance more affordable and more available? Is outcomes. Senators would be aware of trou- the minister aware of any alternative poli- bles, for instance, faced by many railway cies? historical societies around the country. I am Senator COONAN—I thank the senator advised that, in an effort to resolve these for what is a very important question. As problems, a group of dedicated individuals senators would be aware, the issue of public began work about 18 months ago looking at liability insurance and the skyrocketing cost pooling insurance and working with others in of claims and premiums was a huge issue their sector. We have now got, in an envi- facing the community in the last term of this ronment of tort law reforms, some really sig- government. Businesses, tourist facilities and nificant results. For example, I am informed community and sporting groups were facing that the Australian Railway Historical Soci- premiums that were beyond their means and, ety, based in Canberra, was just two years in some cases, they were unable to find in- ago facing public liability premiums of surance at all. The government responded by $75,000. Members were even considering bringing together the states and territories selling some of their heritage objects to be and embarking on a range of reforms to re- able to keep going. Now those premiums store some balance to a system that was cre- have almost halved. I am also informed that ating serious difficulties across the commu- the Australian Narrow Gauge Railway Mu- nity. In my previous role as Assistant Treas- seum Society reopened on 28 November af- urer, I had convened an expert committee, ter being offered affordable premiums. The chaired by Justice David Ipp, to review the list goes on and on. law of negligence and to develop principled I would also commend all those involved options to limit liability and the quantum of in the good work of trying to get this liability damages. It was a reform program that was problem under control and those involved in then agreed with all states and territories. the government’s swift and effective re- The broad thrust of the reforms imple- sponse to public liability concerns, including mented across Australian jurisdictions has state and territory governments who worked resulted in a rebalancing of the rights of the alongside the Australian government to bring individual against those of the community as the system back into balance. Federal Labor a whole and striking a reasonable balance really does need to take a leaf out of the between the two. Happily, I can inform the book of its state and territory counterparts Senate that the positive results of these re- from the Labor Party. Despite the importance forms are already being seen across the of this issue, we did not see anything positive country. CGU, a large insurer, has recently from federal Labor. There was no plan, no announced a 10 per cent reduction in premi- solution and no attempt to resolve the issue. ums for public liability, citing a fall in the In fact, Labor only got involved in the last frequency of small claims. At the same time, stages with, I think, Senator Conroy throw- QBE Australia chair Raymond Jones was ing a spanner in the works and trying to send quoted in the media as saying there had been the whole thing off. It has not worked. The a fall in the number of court cases and legal government’s reforms are already delivering challenges. benefits and I hope we will shortly be able to bring back the reforms to finalise what we started. We know it works. Labor should get

CHAMBER Thursday, 9 December 2004 SENATE 77 behind what the government have done, as are not surprising. The number of complaints have their state and territory counterparts. for the previous financial year was higher DISTINGUISHED VISITORS than for the year earlier, but complaints remained considerably lower than they were The PRESIDENT—Order! I would like three years ago because complaints fell sub- to draw the attention of honourable senators stantially. Complaints in 2003-04 were in to the presence in the President’s gallery of fact 15.7 per cent lower than in 2000-01. Mr David Coltart MP, justice spokesman for the opposition from the parliament of Zim- The number of complaints would also be babwe. I warmly welcome Mr Coltart to the expected to increase with the recent im- Senate and trust that his visit will be both provements in the level of consumer aware- informative and enjoyable. ness of the TIO following the recent government information campaign. The gov- Honourable senators—Hear, hear! ernment are serious about dealing with con- QUESTIONS WITHOUT NOTICE sumers and about consumers having access Telecommunications: Services to the telecommunications ombudsman, and Senator LUNDY (2.46 p.m.)—My ques- so we undertook an information campaign. It tion is to Senator Coonan, the Minister for would be important for consumers to be able Communications, Information Technology to take up their concerns with the industry and the Arts. Has the minister seen this ombudsman and important that they know month’s report by the Telecommunications their rights. I understand that a survey by the Industry Ombudsman which stated that con- TIO in April 2004 revealed that the level of sumer complaints about poor services in- awareness of the TIO among residential or creased by eight per cent to 59,850 last year? household telecommunications consumers Is the minister aware that complaints about increased from 47 per cent to 52 per cent landline faults increased by 21 per cent, mo- since the previous survey. This is a 10.6 per bile phone connections by 80 per cent and cent increase in the awareness of the TIO and Internet connections by 158 per cent? Given it may of itself be expected to cause a similar these disappointing statistics, why has the increase in the level of complaints, regard- government remained obsessed with the full less of any change in consumer concern. privatisation of Telstra? In fact, can the min- There are a number of issues that were ister explain how the sale of Telstra will im- identified in the TIO report that are being prove services for consumers? Minister, addressed. For example, the government has given that in question time today we have been actively involved in the contracts issue, already heard how useless the consumer ser- advocating the development of a code of vice guarantee is, what action will the gov- practice under telecommunications legisla- ernment take to address these falling service tion to address the particular issues that have standards in the telecommunications indus- arisen in telecommunications contracts. The try? government has written, for example, to the Senator COONAN—I am really glad that CEOs of all the major carriers seeking their somebody on the other side has got around— commitment to the code of development the report has been out for quite a while—to process and to timely and effective out- asking a question about this report. Some of comes. This followed a formal request by the the findings in the TIO’s annual report about ACA for the telecommunications industry to the performance of the industry in 2003-04 develop a code of practice for consumer con-

CHAMBER 78 SENATE Thursday, 9 December 2004 tracts and to submit it to the ACA for regis- safeguards exist independently of govern- tration. ment ownership of or interest in Telstra. Another issue dealt with by the ombuds- Unfortunately for the Labor Party, they do man was credit management. These are is- not seem to be able to understand the differ- sues that were identified as of most concern ence between competition and consumer to consumers and they are matters to which protection. They want to advocate telecom- the government is responding. In relation to munication competition on one hand while credit management, the government directed demanding that Telstra deliver services at the ACA in April to investigate industry ar- any cost on the other. Under Labor, all you rangements to protect telecommunications would get with Telstra is an old-style, mo- consumers from Internet dumping and unex- nopolistic public utility incapable of deliver- pected high bills. The ACA gave its report to ing anything for consumers. This govern- me recently and I am currently considering ment cares about consumers. We have built these recommendations. So the point of the the framework to look after them and we will issue is that the ombudsman is there to deal maintain it. with legitimate issues with telecommunica- Immigration: Asylum Seekers tions affecting consumers. The government Senator NETTLE (2.51 p.m.)—My ques- has in fact undertaken a campaign to ensure tion is to the Minister for Immigration and that consumers are aware of the ombudsman Multicultural and Indigenous Affairs, Sena- and aware of their rights, and I am very tor Vanstone. The minister will recall that pleased to see that increased awareness re- last year UNHCR requested that all Iraqi flected in the annual report. asylum seekers not found to be refugees Senator LUNDY—Mr President, I ask a should be granted temporary protection visas supplementary question. Does the minister and be accepted into the community, pending accept that the ombudsman’s report demon- an improvement in the security situation in strates once again that the light touch regula- Iraq. Given the current and deteriorating se- tion in the telecommunications industry has curity situation in Iraq, does the minister still not delivered good outcomes for consumers? stand by her statement of 2 December this The minister mentioned, or at least paid lip- year regarding the 14 Iraqi asylum seekers service to, unfair contracts, so I ask: will the currently detained on Nauru, whose claims government now act to direct the Australian have been rejected by her department, when Communications Authority to review all she said: consumer codes and develop tougher regula- Those people who have been confirmed as nonre- tory standards to improve service levels? fugees should accept the outcome and return to Senator COONAN—As I have said, their home country as quickly as possible. what the government have done is to develop Will the minister act on the request from a robust consumer framework. We have built UNHCR and grant these people their visas? these consumer frameworks in the absence Senator VANSTONE—Senator, the spe- of the Labor Party doing anything in 13 cific request from the UNHCR with respect years to look after telco consumers. I think it to the Iraqis being reassessed does not come is interesting that in Senator Lundy’s earlier to mind. I think we may have instigated reas- question she asked about privatising Telstra. sessing the Iraqis simply because we agreed, One thing I do know is that these consumer at the request of the UNHCR, to reassess the Afghanis. It may have put in a request; it

CHAMBER Thursday, 9 December 2004 SENATE 79 may have been a simultaneous arrival at a them a very happy and long holiday. They very good idea. We redid the Iraqi caseload. will need it because they are coming back to The facts are that, having redone the three more years of our government and caseload in the current conditions, some three more years of opposition for them. people have still been assessed not to be Bushfires refugees. Senator BUCKLAND (2.55 p.m.)—I re- Senator, as you probably know—but as I fer the minister representing the Minister for very rarely hear you mention—Australia is Local Government, Territories and Roads to the third largest taker in the world of people the devastating impact of the bushfires that in desperate need of resettlement, following swept through New South Wales, the ACT the United States and Canada. A system that and Victoria in January 2003, and to the on- decides who are refugees and who are in set of the 2004-05 bushfire season. Is the need must, of course, decide who are not minister aware that the all-party parliamen- refugees, and the consequence for them is tary inquiry into these bushfires received that they go home. So the short answer to more than 500 submissions from local gov- your question—if you are asking me whether ernments, rural fire brigades, farming organi- I still think they should go home—is yes. sations, environmental groups and concerned Senator NETTLE—Mr President, I ask a citizens? On this, the last sitting day of 2004, supplementary question. Is the minister can the minister tell the Senate why the gov- aware that a number of these asylum seekers ernment has not formally responded to the have attempted to sign ‘voluntary return recommendations contained in the commit- forms’ requesting their return to Iraq but tee report tabled on 5 November last year— have been told by the International Organisa- more than 13 months ago? tion for Migration that runs the detention Senator ELLISON—I am not aware of centre in Nauru that they cannot return to the reason for the government not having Iraq because ‘the borders are closed’? Does responded to the report Senator Buckland this not make a mockery of the minister’s has referred to. The Australian Institute of claim—which she has made again today— Criminology conducted a study into bush- that they should ‘go back to where they came fires and the reasons why people light them. from’? Will the minister now apologise for That is something that, in my own portfolio, this misleading statement and will she give as minister for justice, I want to take further. these asylum seekers a visa and wish them a Australia experiences bushfires more often merry Christmas? than most other countries. A lot of these Senator VANSTONE—Senator, perhaps, bushfires are lit deliberately or are caused by given my portfolio, I should wish them the recklessness of individuals. That is some- ‘compliments of the season’ rather than thing I certainly want to address. The Austra- ‘merry Christmas’ because—as you will be lian Institute of Criminology has produced aware—Islamic people do not celebrate an excellent report on this which I will be Christmas; neither do the Jewish community. releasing shortly. That is within my portfolio, So ‘compliments of the season’ is usually a and it will be of great assistance in dealing better sort of remark. You might like to pick with those arsonists who cause bushfires. As up that little hint. I wish everybody here for the reason why there has not been a gov- compliments of the season. I look across the ernment response to the report Senator Buck- chamber to this ocean of faces and I wish land mentions, I will take that on notice.

CHAMBER 80 SENATE Thursday, 9 December 2004

Senator BUCKLAND—Mr President, I tection, in line with human rights principles? ask a supplementary question. Is the minister How can the government continue to justify aware that a former minister for regional locking up these people, who have nowhere services pledged to develop a national fire- else to go and who have committed no fighting strategy in partnership with the crime? states and territories as long ago as April Senator VANSTONE—The government 2002? Could the minister tell us why the will not be giving temporary protection visas government has failed to honour his com- to people who have been judged not to be mitment to Australia’s regional communi- refugees. People who come to Australia, irre- ties? spective of how they come, have their asy- Senator ELLISON—I do not accept for lum claims properly heard. If they are refu- one moment that there has been a failure by gees they are given either a permanent pro- this government to honour its commitment to tection visa or a temporary protection visa. develop a bushfire strategy. The state and The choice between those two may well de- territory governments have primary respon- pend on the method of arrival. People who sibility for the control of bushfires. The are judged not to be refugees are not entitled Commonwealth has an important part to to Australia’s protection, and we do not give play, but it is part of a whole-of-government it. As to any comments the IOM, the Interna- approach to the issue of bushfires. I will take tional Organisation for Migration, has made that on notice and get back to the Senate. recently, they have not been drawn to my Immigration: Asylum Seekers attention and I will seek them out. Senator BARTLETT (2.58 p.m.)—My Senator BARTLETT—Mr President, I question is to the Minister for Immigration ask a supplementary question. This question and Multicultural and Indigenous Affairs and is line with the minister’s wishing of com- it follows on from Senator Nettle’s question pliments of the season, and I might say that and the minister’s comment about people is a very politically correct wish to these preparing themselves for three more years of people and everybody else. The global body this government. Minister, isn’t it the case responsible for assessing refugee situations, that the Iraqis on Nauru—and, indeed, Iraqis the UNHCR, recommends to all countries in detention in Australia—have already had that asylum seekers from Iraq—even those three years or more of being locked up by not recognised as refugees—be granted some this government? Is it not a fact that those form of complimentary protection. If those Iraqis on Nauru who have asked to be re- who have been locked up on Nauru or in turned home are not able to be returned? Is it Australia for three or more years have no- not a fact that the United Nations High where else to go, what does the minister rec- Commission for Refugees’ global advisory ommend they do for Christmas? on returning Iraqis has specifically said that Senator VANSTONE—Senator, I am not Iraqis should not be returned forcibly and sure if you used ‘politically correct’ as a dis- that governments should postpone measures paraging term, but I think it is somewhat intended to induce voluntary returns, includ- offensive to say to people who are not of a ing of rejected cases? Is it not also the case Christian religion, ‘Merry Christmas,’ as if that the UNHCR recommends that such peo- the rest of the world shares your own world ple—rejected refugee claimants from Iraq— view. It is a multicultural world and there are be granted some form of complimentary pro- differences. I do not think there is anything

CHAMBER Thursday, 9 December 2004 SENATE 81 wrong with acknowledging them and choos- lation to Mr Ken Crooke. I seek leave to ining a form of greeting to include all people. corporate the answer in Hansard. Christians would say, ‘Merry Christmas.’ Leave granted. Saying, ‘Compliments of the season,’ in- The answer read as follows— cludes all people. Not everybody happens to be of a Christian religion. Some are Mus- (1) Can the Minister confirm that Mr Ken lims. Some have other religions—for exam- Crooke was a senior member of the staff of the former Parliamentary Secretary to the ple, the Jewish faith. I do not see anything Minister for Transport and Regional Ser- wrong with that. vices? Senator Hill—Mr President, I ask that (2) Wasn’t Mr Crooke employed by Mrs Kelly further questions be placed on the Notice when Mr Crooke acted for both her and A2 Paper. Dairy Marketers during negotiations for a QUESTIONS WITHOUT NOTICE: Regional Partnerships Grant this year? ADDITIONAL ANSWERS (3) Can the Minister advise the Senate on what date Mr Crooke commenced employment in Nuclear Energy: Waste Storage Mrs Kelly’s office? Senator ELLISON (Western Australia— (4) Isn’t it the case that Mr Crooke was on the Minister for Justice and Customs) (3.02 staff of Mrs Kelly when he represented the p.m.)—Senator Allison asked me a question A2 company at negotiations with representa- during question time in relation to the man- tives of the Queensland Government on agement of nuclear waste, which is the re- 8 July 2004? sponsibility of the minister for science. I am (5) Is it the Minister’s contention that people in advised that the government has embarked rural and regional areas are not concerned upon a detailed process to determine a loca- with the propriety and probity of government tion for the Commonwealth’s co-located grant allocations? waste management facility. The initial step in (6) Is Mr Crooke still working for Mrs Kelly? this process will involve identification of a When did his employment cease? site or sites which will be subject to further (7) Has the Prime Minister investigated Mr on-site investigation of their suitability. Crooke’s involvement with A2 Dairy Mar- Whilst the government has a preference for keters including any role he had with the an offshore site, both offshore and onshore company in connection with the activities siting options are being considered. This fa- that led to the recent conviction of that company for false advertising? Can he confirm cility will be subject to a Commonwealth that on 8 July Mr Crooke, as a director of the environmental assessment and will require Asia Pacific Corporation, was actually in- regulatory approvals from the Australian volved in negotiations with the Queensland Radiation Protection and Nuclear Safety Government with regard to the A2 company? Agency. If there are any other details which Senator Hill—The Prime Minister has provided have not been covered in that answer, I will me with the following information in response to get back to the Senate. the Honourable Senator’s question. Regional Services: Program Funding (1) Mr Crooke was employed in Mrs Kelly’s Senator HILL (South Australia— office as an Executive Assistant/Office Man- Minister for Defence) (3.03 p.m.)—I have ager from 28 June to 4 July 2004 and as an Assistant Adviser from 5 July until 31 Octo- further information in response to a question ber 2004. asked by Senator Carr on 2 December in re-

CHAMBER 82 SENATE Thursday, 9 December 2004

(2) Mr Crooke did not act for both Mrs Kelly The discussion in this year’s (2003-04) annual and A2 Marketers during any negotiations. report for the Natural Heritage Trust is simply (3) 28 June 2004. there to provide an accurate historical series in relation to the balances of the NHT Special Ac- (4) Mrs Kelly has issued a statement on this count had the duplication not occurred. matter and I have nothing further to add. It is important to remember that these corrections (5) No. deal with a technical reporting issue. They do not (6) No. His employment ceased on 31 October affect program expenditure under the Natural 2004. Heritage Trust, which has been administered in (7) I have nothing to add to the statements made accordance with government policy. by Mrs Kelly on this matter. QUESTIONS WITHOUT NOTICE: Natural Heritage Trust TAKE NOTE OF ANSWERS Senator MINCHIN (South Australia— James Hardie Group of Companies Minister for Finance and Administration) Senator WONG (South Australia) (3.04 (3.03 p.m.)—I have further information in p.m.)—I move: response to the question asked of me today That the Senate take note of the answers given by Senator Sherry in relation to the Auditor- by the Minister for Justice and Customs (Senator General’s report on the Natural Heritage Ellison) and the Minister for Communications, Trust special account. I seek leave to incor- Information Technology and the Arts (Senator porate the answer in Hansard. Coonan) to questions without notice asked by Leave granted. Senators Wong and Webber today relating to compensation payments by James Hardie Indus- The answer read as follows— tries. The issue to which Senator Sherry refers is an old Today in question time one issue that the story, which was rectified over a year ago. opposition sought information on was that of It was canvassed in the Auditor-General’s report a treaty between Australia and the Nether- into Special Accounts in January of this year. lands. The reason we did so is that a treaty is The Auditor pointed out that in previous years, necessary to ensure that justice is done for the Department of Environment and Heritage had the victims of James Hardie. I think most duplicated the appropriations into the Natural people in Australia are aware that Hardie Heritage Trust Special Account, because they had engaged in a complex corporate restructure, assumed that annual appropriations were required to give effect to the credits made available to the which included placing most of its assets into Natural Heritage Trust. a Dutch based entity. One issue that is of In reality, the Telstra Sale Act also included a great concern to victims and their families is Special Appropriation which automatically cred- what happens if they have a judgment ited amounts to the NHT Special Account. against the company that is as useless as the This created a duplication of appropriation au- paper on which it is written because they are thority. unable to enforce the judgment against the As a result an adjustment had to be made, and company where the assets are held. We on that adjustment was disclosed and fully explained this side of the chamber do not believe that in the 2002-03 annual report of the Department of that is an appropriate state of affairs. We on Environment and Heritage. this side of the chamber believe that the gov- The Auditor-General noted the correction in the ernment must do everything it can to ensure context of the Department’s 2002-03 annual re- that, if there are judgments in favour of vic- port this time last year. tims of asbestos related diseases against

CHAMBER Thursday, 9 December 2004 SENATE 83

James Hardie, those judgments are able to be That means two things. The first is that enforced and that the victims and their fami- this government will condemn Hardie’s vic- lies receive appropriate compensation. tims who have got a judgment under Austra- The issue of the treaty is fundamentally an lian legislation to another litigation process issue about certainty, about peace of mind in the Netherlands instead of ensuring that for Hardie’s victims and their families and any judgments under Australian legislation about making sure that any judgments will be able to be enforced as of right in the against Hardie are enforceable. We do not Netherlands as they would be in the United want to see seriously ill or dying Australians, Kingdom. Instead of ensuring that those or their families, left with judgments that are judgments would be able to be enforced as of effectively worthless. Unfortunately on this right, this government are saying to Hardie’s issue what we have seen today in question victims, ‘Even if you go through a litigation time and previously is the government process here in Australia—even if you go shillyshallying, changing positions and mak- through a process either under existing legis- ing commitments and then resiling from lation or under the proposed New South them. They have failed to provide certainty Wales legislation—we still expect you to in this area. They have failed to ensure that litigate in the Netherlands.’ What sort of the judgments can be enforced. On 21 Sep- Christmas message is that to Hardie’s vic- tember—before the release of the New South tims and their families? They do deserve Wales special inquiry report, the Jackson some certainty and they deserve to know that report—in the Australian Financial Review this government is prepared to do the work the Attorney-General said: to ensure that justice is done not only in the letter of the law but also in practice so that No formal discussions have yet taken place with the Netherlands government concerning a treaty. judgments can be enforced. He also foreshadowed that the government The second issue that the minister indi- would consider the findings of the Jackson cated was that their advice was that a treaty inquiry before determining what it would do may not be necessary because conventional next. Then the Jackson inquiry reported sub- judgments may not require such a treaty. Let sequently. Concern was expressed by Com- us be very clear about this. Any judgment by missioner Jackson that judgments made un- a Hardie’s victim against the Netherlands der legislation that was both retrospective company will not be under conventional leg- and Hardie specific would not be able to be islation; it will be under very specific— enforced in the Netherlands. Despite these Hardie specific—retrospective legislation. If concerns, we have had very little or no action the government are sure that a treaty is not from the Attorney-General. Instead, what he required, as I understand they are now stat- has indicated and what was again echoed ing, they should release the advice. They today by Senator Ellison, the Minister repre- should release a statement indicating presenting the Attorney-General in this cham- cisely why that is. Why should they do that? ber, was that in general the advice from the It is because Hardie’s victims and their fami- Netherlands authorities was that conven- lies deserve to know. They deserve to know tional Australian judgments can form the whether or not they can actually enforce the basis of legal action in their respective juris- judgments they receive. (Time expired) dictions. Senator EGGLESTON (Western Austra- lia) (3.09 p.m.)—The whole saga of asbestos related disease is a very sad one. Nobody can

CHAMBER 84 SENATE Thursday, 9 December 2004 feel anything but the greatest sympathy for Wales government have reviewed various the victims of asbestos related diseases, both mechanisms of how legal costs might be re- those who suffer because of asbestos expo- duced in processing claims through the Dust sure from the products of James Hardie and Diseases Tribunal, which is the specialist those in Western Australia who worked in the court in New South Wales that deals with asbestos mines in Wittenoom. These people, asbestos diseases cases. I would have without any doubt whatsoever, suffer terrible thought that Senator Wong might have pre- consequences, often from quite short periods ferred to tell us about the negotiations that of exposure to asbestos. It is one of the prob- have gone on between the ACTU secretary, lems that the companies encounter because Greg Combet, and the Hardie company on not everybody who is exposed to asbestos paying compensation to the victims of asbes- develops asbestosis or mesotheliomas. While tos exposure under that company. I have it has been known for a very long time that heard that the company is prepared to put there are hazards associated with exposure to some $200 million into a buffer fund to en- asbestos in terms of pathology in the lungs, it sure that there will be money to meet the is very hard to know how to identify the claims for some years ahead so that time is people who are at risk. given for the development of a better way of The Hardie saga is very long-running and meeting the needs of these people. That, I sad, but I think we have to accept that the suppose, is a victory for the union movement liability that the James Hardie company have in this case. They probably deserve to be said they expected to be faced with was an given due praise for the way they have oper- honest miscalculation. The company have ated in this matter. I think the New South not denied a liability; they have simply said Wales government’s actions are also very that when these figures were worked out the praiseworthy in seeking to reduce the cost of advice they received about the extent of the legal claims. But the fact remains, as the ongoing liability was not fully identified. Treasurer said, the Commonwealth will find The government, because of the controversy a solution. (Time expired) that surrounds this issue, has passed laws Senator WEBBER (Western Australia) which will mean that the records of the (3.14 p.m.)—I congratulate Senator James Hardie company can be examined and Eggleston on at least acknowledging the sig- will not be covered by privilege. This will nificant contribution the ACTU and the New mean that if indeed there has been misrepre- South Wales government have made towards sentation on the part of the company and trying to address the enormous injustice and attempts on their part to avoid paying com- tragedy of the victims of James Hardie— pensation to victims of asbestos diseases although I found that some of his earlier con- then they will not get away with it. In fact, tribution could best be termed ‘another inter- the company will be brought to a position esting defence’ of the James Hardie com- where they will have to meet their liabilities, pany. There is no doubt that the James Har- and the victims of exposure to asbestos from die case is one that has rightly outraged the products of James Hardie will be fully many members of the Australian community compensated. That compensation will go on and, if they were not already outraged, they actuarially until the people who are involved only had to watch the chair of James Hardie, have passed away. Ms Hellicar, on the 7.30 Report recently. She I believe that there has been agreement. made what I think was one of the most out- Not only the ACTU but also the New South rageous and staggering media performances

CHAMBER Thursday, 9 December 2004 SENATE 85 that I have ever seen in trying to defend the it; and, on another day, as Minister Ellison absolutely indefensible. Let us face it: James also said today, it says, ‘We might look at it.’ Hardie is a corporation that dealt with a It is time for the Commonwealth to treat this product that is known to cause death—a hor- as a matter of utmost urgency. rible, lingering, painful death—and it has Corporations throughout the world rarely attempted to skip out on its legal and moral operate on the basis of what is right; rather obligations by fleeing overseas, something they operate on the basis of making a buck. that the company is still trying to defend. That brings me to the matters raised by the James Hardie is a corporation that remember for O’Connor in the other place a leased only a limited amount of funding to few nights ago. He, in making a startling the fund it left behind to pay compensation contribution, said that moving legislation to its victims, a corporation that is forced by with the benefit of hindsight should not take the courts to pay even more money into that place. I do not know about those opposite, fund. No matter what was right, this com- but I find that outrageous in this case. I pany has only just begun to move towards should not be surprised, because that is the meeting its legal and moral obligations when old flogging horse of the WA Liberals. Ret- its bottom line was starting to be affected— rospective legislation should never be al- not for it accepting the moral obligations to lowed according to them. Over 20 years ago look after its former and current employees; it was about bottom-of-the-harbour tax it only takes action when forced to by bad schemes—something else I am sure the publicity and potential court action. member for O’Connor recalls—and now it is It is through the work of individuals, the about James Hardie not being held account- ACTU and trade unions, as acknowledged by able for its practices. Senator Eggleston, and the New South Wales One of the fundamental strengths of an ef- government—not the federal government— fective parliamentary democracy— that have relentlessly pursued this company something that we like to claim we have that we are starting to finally move towards a here—is that of audit. The concept of audit positive outcome. The Commonwealth’s goes beyond the narrow accounting defini- contribution to this process has come today tion. Audit is a methodical examination and at the eleventh hour for most of the victims, review. Our institutions rely on this basic and tragically too late for some. The New principle. We must be able to examine and South Wales government has moved legisla- review the decisions that we make but, sadly, tion that may not be enforceable because it would appear that the member for Australia does not have a treaty with the O’Connor does not support that concept. Netherlands that will ensure that the Austra- Instead, he would prefer to call the victims of lian court orders are able to be enforced. James Hardie ‘ambulance chasers’. In fact, Still, today in question time, Minister Ellison the member for O’Connor says that no-one was trying to justify the fact that he thought could have known what the outcome would we may or may not need a treaty. The gov- be regarding the use of asbestos products, ernment is still waiting on advice to see and therefore we should run on some sort of whether they should be forced to act. This principle of letting what happened in the past Commonwealth government cannot even get stay in the past. I do not know about you, Mr its story straight about whether or not we Deputy President, but I say that is just not need a treaty, it would seem. The Attorney- good enough. The member for O’Connor General says on one day that we do not need seems to think that James Hardie should not

CHAMBER 86 SENATE Thursday, 9 December 2004 be singled out, because it did not know what to expressly abrogate legal professional the effects would be. (Time expired) privilege in relation to certain materials, al- Senator HUMPHRIES (Australian Capi- lowing their use in investigation of James tal Territory) (3.19 p.m.)—I want to make it Hardie and any related proceedings. That is perfectly clear in this debate, if any doubt evidence that we will not support the corpo- has been sown in people’s minds by virtue of rate veil—or legal professional privilege— what Labor senators have said, that the gov- which James Hardie might hide behind in ernment does not, in this context or in any resisting the claims of its victims. We believe other, condone the actions of James Hardie there needs to be a clear and comprehensive in avoiding its obligations to those people step taken to enable proper investigation of who are victims of past practices. The gov- James Hardie’s activities and cooperation ernment’s position is absolutely clear. The with those who are legitimately investigating government’s position has been reinforced what has occurred with its corporate restruc- by legislation tabled in this sitting fortnight turing, which apparently has allowed assets to strengthen investigations into James Har- of James Hardie to be taken offshore and out die’s activities and into the process of exam- of the reach of identified victims. ining compensation to victims of James Har- It is unfortunate that Labor in this debate die’s practices. It does not support what has sought to characterise itself as the party James Hardie has done and remains of the that cares about the victims of James Hardie view that James Hardie should fully honour and that this government as somehow not its obligations to compensate asbestos vic- believing that. I was disturbed that Senator tims. Webber chose to accuse Senator Eggleston of That is not a position which is adopted be- somehow defending James Hardie. I listened cause of publicity surrounding these particu- to Senator Eggleston’s speech. He did not do lar cases. It is because the kinds of issues that. The views of the member for O’Connor, which have arisen in the context of James which have been cited in the chamber today, Hardie’s activities have the potential to un- do not represent the views of this govern- dermine Australians’ confidence in the cor- ment. They do not represent the views of this porate sector of this country and the capacity government. The views of this government of our legal system to properly make people are best typified by the legislation which was in that sector accountable for their actions. introduced and passed today, which will as- We believe that there needs to be a rigorous sist in tracking down the position that vic- process in the law that will allow people who tims of James Hardie’s activities are now are victims of practices by companies like facing. this to be able to obtain compensation. To the What we need to do in this process, how- extent that there have been decisions made ever, is protect the integrity and the frame- by companies like James Hardie to avoid work of Australian law. It would be easy to their obligations, we will cooperate with legislate retrospectively to change the posi- government and non-government institutions tion on any particular corporate situation that to be able to deal effectively with those ac- arose that gave us concern, and that might tions to ensure that the integrity of Australian buy us a cheap headline. The Australian gov- corporate law is maintained. ernment cannot afford to do that. It has to The proof of that is the legislation which make sure that the integrity of Australian law was passed only this morning by the Senate is intact and that people are able to deal effectively with their situations in that frame-

CHAMBER Thursday, 9 December 2004 SENATE 87 work into the future. Changing the law for people affected by this disease by legislation. the sake of one case is dangerous. That is It is a start, but the actions need to be much why the government approached the sugges- stronger. tion that a treaty needs to be renegotiated I want to refer to the answer that Senator with some caution. I think that is a fair posi- Coonan gave today in relation to the com- tion to take and I suspect that if Labor were ments of the member for O’Connor in the in office it would take a similar position. House of Representatives the other day. The (Time expired) member for O’Connor made comments like: Senator CROSSIN (Northern Territory) ... if it is reasonable for a single company because (3.24 p.m.)—I rise to take note of the an- of the hysteria associated with this particular is- swers to questions asked by Senator Wong sue, it is reasonable for all companies, all indi- relating to the James Hardie case and in par- viduals and anybody else. ticular the answer given by Senator Coonan. Those comments do nothing to assist the This matter has come to light significantly justice which these workers should be af- over the last couple of months because, of forded. To also say, ‘The fundamental issue course, in recent years the devastating effect here is where Australia is heading in the of asbestos and asbestos related illnesses process of ambulance chasing,’ does nothing have become a matter of national concern. to assist these people, their families with the We know that asbestos was used in Australia grief they are going through and the struggle during the last part of the century in the they are having for some form of decent manufacture of building products and we compensation. know that one single fibre of asbestos can I was delighted, of course, to hear Senator give rise to asbestosis, lung cancer and terri- Humphries say that the views of the member ble diseases such as mesothelioma. for O’Connor were not the views of this The situation is not going to go away in government. I think he said just a few min- relation to workplace injury and asbestos utes ago that those views do not represent the related illness or deaths. If you have a look at views of the government. That is a welcome the reconstruction of Darwin after Cyclone relief. But why couldn’t the minister have Tracy, you will see a significant number of said that when she was asked that during buildings—and are to this very day, in fact— question time? That is exactly what this tak- full of asbestos products. This issue is not ing note of answers motion is about: it is going to go away. Companies and employers about members of the executive of this gov- taking responsibility for their workers in re- ernment not having enough courage to refute lation to workplace related injuries and comments like those of the member for workplace related diseases, such as this, is O’Connor. She had the opportunity and not going to go away. James Hardie needs to missed that opportunity. She could have finally accept responsibility for the role it has clearly said, ‘That may well be what the played in this. But, even more than that, we member for O’Connor said, but they are not need the federal government to have enough the views of the government. The govern- backbone, enough spine, to actually take it ment does not stand by those views. The up to this company, to ensure that these government does not support the views of workers get every single thing they deserve the member for O’Connor.’ But she failed out of any compensation claim that they have comprehensively to do that. That is what this against this company. This is not a time to be is about. trying to defend the company or appease the

CHAMBER 88 SENATE Thursday, 9 December 2004

This is also about ensuring that the gov- out having committed any crime—but the ernment does everything possible to assist sorts of answers given by Minister Vanstone where these people need further protection. today were just extraordinary. To be unaware That is why we believe that, if this govern- of the clear-cut advice of the United Nations ment has legal advice about whether there High Commission for Refugees—the global should be a treaty with the Netherlands, that body that assesses the situation for refugees advice, as Senator Wong said, should be in relation to Iraq—given to all member made public. It should be tabled and that states, of which Australia is one, is pretty should be available for the victims, for their poor. lawyers and for the ACTU to have a look at. The minister was asked a compelling This government is not about trying to do all question that every one of these people who it possibly can for these victims; this gov- have been through unimaginable amounts of ernment is still about trying to defend its suffering, a lot of which has been inflicted by member’s comments in the House, still try- our government, faces. They are being told: ing to protect this company in some shape or ‘You are not a refugee. You have to go to other. This government is not going 100 per Iraq.’ But when they say, ‘Yes, we’ll go,’ cent of the way to ensure that the actions of they are told: ‘You can’t. It’s not safe. The this company are fully exposed and are not borders are closed. You have to stay where supported. (Time expired) you are.’ Where they are is in detention ei- Question agreed to. ther on Nauru or, in most cases, in Baxter. Immigration: Asylum Seekers The central question for those people is: what do I do? The minister was asked a Senator BARTLETT (Queensland— straightforward, pretty clear-cut question. It Leader of the Australian Democrats) (3.29 does not matter what you think about the p.m.)—I move: government’s refugee policy overall or its That the Senate take note of the answers given Pacific solution. The simple facts are that a by the Minister for Immigration and Multicultural group of people who have been locked up for and Indigenous Affairs (Senator Vanstone) to questions without notice asked by Senators Nettle over three years have been told that they are and Bartlett today relating to Iraqi asylum seek- not refugees and that they have to go back to ers. Iraq. They have said they want to go back The questions Senator Nettle and I asked but they cannot, and they have stayed locked today were about Iraqi asylum seekers in up. It is like Catch-22. detention on Nauru and in Australia. These I asked the minister the simple question of people have not been successful in their asy- what those people are expected to do, and lum claims and have not been found to be she talked about how saying ‘merry Christ- refugees by the Australian government’s as- mas’ to Muslims is offensive. I do not neces- sessment processes. Up to 20 people on sarily agree with that, but that is a different Nauru are in that situation and there are a debate. I think it is broadly accepted in a number in detention in Australia. multicultural society that people can cele- It is bad enough that people have been brate Christmas as a festive season rather locked up for years—three years in the case than as a religious occasion. The minister’s of people on Nauru and even longer for those response was to simply waffle on about in Australia; some people have been locked whether or not to say ‘merry Christmas’, up for four years, losing their freedom with- ‘season’s greetings’ or ‘compliments of the season’ to Muslims, when she had been

CHAMBER Thursday, 9 December 2004 SENATE 89 asked a direct question: what are these peo- more unforgivable that the minister appar- ple, who have been locked up for three years ently does not care and is not interested in and counting, supposed to do? That just telling them what they are supposed to do. shows her extraordinary lack of any under- She is not even aware of the clear-cut rec- standing of what these people are going ommendations and advice of the United Na- through and what is being done to them. tions High Commission for Refugees which I want to read an email from somebody on says that these people should be given com- Nauru—I will not mention names—about the plimentary protection and that all returns, Iraqis who were recently given their decision whether voluntary or forced, should be sus- after the government reassessed them and 27 pended. (Time expired) were found to be refugees. It is great that Question agreed to. they were found to be refugees, but why is it COMMITTEES that they were locked up for three years on Nauru before they were found to be refu- Reports: Government Responses gees? Now they are supposed to be grateful Senator HILL (South Australia—Leader that are being given protection, when there is of the Government in the Senate) (3.35 ample evidence of what they would face if p.m.)—I present the government’s response they were to go back to Iraq anyway. The to the President’s report of 24 June 2004 on email says: outstanding government responses to parliamentary committee reports and seek leave to These people were ordered onto the bus to go to the other camp for the decision. A woman who is incorporate the document in Hansard. there, who cannot walk well or far had to stay Leave granted. behind and wait for her husband to bring back the news which either meant the beginning of a new The document read as follows— life or more of the same in the camp. She dragged A CERTAIN MARITIME INCIDENT (Select) herself and her walking frame over the rough A Certain maritime incident ground up to the gate to sit and wait. The response is under consideration. I have been to this camp and can picture the gate. She would have been out in the open ASIO, ASIS AND DSD (Joint, Statutory) sun, and it is very hot on Nauru all year Private review of agency security ar- round. It continues: rangements Four hours later the bus returned with the Iraqis. The government is finalising its re- Even those who had received a positive decision sponse to the report. were miserable because they could not look their Intelligence on Iraq’s weapons of mass friends in the face. Women wept as they drove destruction past this woman. No-one wanted to tell her that A response is not required. not only were she and her husband unsuccessful but that her husband on receiving the negative Review of the listing of the Palestinian decision had collapsed and was taken to hospital. Islamic Jihad The sight of this woman sitting in the hot sun Although there were no recommenda- waiting was more than they could bear. tions to be considered, measures have That is the situation of one family who is been taken to address the committee’s facing total despair and a total absence of concerns. hope. It is an absolute disgrace that these people are facing that situation and it is even

CHAMBER 90 SENATE Thursday, 9 December 2004

AUSTRALIAN CRIME COMMISSION CORPORATIONS AND FINANCIAL (Joint, Statutory) SERVICES (Joint Statutory) Cybercrime Report on the regulations and ASIC policy The government is currently considering statements made under the Financial Ser- the recommendations of the report, with vices Reform Act 2001 a view to tabling a response in early The government is restructuring its re- 2005. sponse to this report to take into account Inquiry into the trafficking of women for responses for two other related reports. sexual servitude The comprehensive combined response will be tabled shortly. The response to the report is nearing completion and a response will be tabled Review of the Managed Investments Act as soon as possible. 1998 COMMUNITY AFFAIRS REFERENCES The government is considering its response, which is affected by recent cor- The patient profession: time for action— porate governance law reforms, and will Report on nursing be tabled in due course. The draft response is currently being re- Inquiry into Regulation 7.1.29 in Corpora- viewed to include initiatives from the tions Amendment Regulations 2003 2004-05 budget and election commit- (No. 3), Statutory Rules 2003 No. 85 ments. A final response is expected to be tabled in early 2005. The government is restructuring its response to this report to take into account A hand up not a hand out: Renewing the responses for two other related reports. fight against poverty—Report on poverty The comprehensive combined response and financial hardship will be tabled shortly. The government has yet to respond to Money matters in the bush: Inquiry into the report because of the time required the level of banking and financial services to consider the large number of recom- in rural, regional and remote areas of Aus- mendations in both the majority and mi- tralia nority reports, as well as delays associated with the recent federal election. It is The response is currently being updated the government’s intention to respond to to reflect election commitments and is the report in early 2005. expected to be tabled shortly. Hepatitis C and the blood supply in Aus- Report on the ATM fee structure tralia The response is currently being updated The response is currently in the clear- to reflect election commitments and is ance process and is expected to be ta- expected to be tabled shortly. bled by the end of the year. Corporations Amendment Regulations CORPORATIONS AND SECURITIES (Joint 2003 (Batch 6); Draft Regulations: Corpo- Statutory) rations Amendment Regulations 2003/04 (Batch 7); and Draft Regulations: Corpo- Report on aspects of the regulation of rations amendment Regulations 2004 proprietary companies (Batch 8) The government is considering the rec- The response is being prepared and is ommendations and a response will be expected to be tabled in due course. tabled as soon as possible.

CHAMBER Thursday, 9 December 2004 SENATE 91

Corporations Amendment Regulations Inquiry into mass marketed tax effective 7.1.29A, 7.1.35A and 7.1.40(h) schemes and investor protection—Final The government is restructuring its re- report sponse to this report to take into account It is expected that a response will be ta- responses for two other related reports. bled shortly. The comprehensive combined response A review of public liability and profes- will be tabled shortly. sional indemnity insurance CLERP (Audit Reform and Corporate The response is in the process of being Disclosure) Bill 2003: Part 1: Enforce- cleared and is expected that a response ment, executive remuneration, continuous will be tabled shortly. disclosure, shareholder participation and EMPLOYMENT, WORKPLACE RELA- related matters TIONS AND EDUCATION REFERENCES The report is being considered and a response will be tabled in due course. Bridging the skills divide The response is under consideration and CLERP (Audit Reform and Corporate will be tabled in due course. Disclosure) Bill 2003: Part 2: Financial reporting and audit reform Beyond Cole: The future of the construc- The report is being considered and a re- tion industry: confrontation or cooperation? sponse will be tabled in due course. The response is being considered and ECONOMICS LEGISLATION will be tabled as soon as possible. Tax Laws Amendment (2004 Measures ENVIRONMENT, COMMUNICATIONS, No. 1) Bill 2004 INFORMATION TECHNOLOGY AND THE The recommendation was addressed by ARTS REFERENCES government amendments to the bill which deferred the commencement of The value of water: Inquiry into Austra- lia’s urban water management the measure regarding endorsement of charities until 1 July 2005. A response has been drafted and will be tabled in due course. ECONOMICS REFERENCES Regulating the Range, Jabiluka, Beverley Report on the operation of the Australian and Honeymoon uranium mines Taxation Office An extensive consultation process has It is expected that a response will be ta- commenced. It is unlikely that a draft bled shortly. response will be ready before the second Inquiry into mass marketed tax effective half of 2005. schemes and investor protection—Interim Libraries in the online environment report The response was presented out of sit- It is expected that a response will be ta- ting on 2 July 2004 and tabled on 3 Au- bled shortly. gust 2004. Inquiry into mass marketed tax effective FINANCE AND PUBLIC ADMINIST- schemes and investor protection—Second RATION REFERENCES report: A recommended resolution and settlement Recruitment and training in the Austra- lian Public Service It is expected that a response will be tabled shortly. The response is being considered and will be tabled shortly.

CHAMBER 92 SENATE Thursday, 9 December 2004

Staff employed under the Members of Report Provisions of the Military Reha- Parliament (Staff) Act 1984 bilitation and Compensation Bill 2003 and The response is under consideration and the Military Rehabilitation and Compen- will be tabled in due course. sation (Consequential and Transitional Provisions) Bill 2003 Administrative review of veteran and military compensation and income support The response will be tabled shortly. The response to this report is being FOREIGN AFFAIRS, DEFENCE AND finalised and will be tabled as soon as TRADE REFERENCES possible. A Pacific engaged: Australia’s relations FOREIGN AFFAIRS, DEFENCE AND with Papua New Guinea and the island TRADE (Joint, Standing) states of the south-west Pacific Report of the Parliamentary Delegation to The response is expected to be finalised the Solomon Islands, 17-18 December shortly. 2003 Voting on trade: The General Agreement A response is not required. on Trade in Services and an Australia-US Free Trade Agreement Near neighbours—good neighbours: An inquiry into Australia’s relationship with The response is under consideration and Indonesia will be tabled as soon as possible. The response will be finalised shortly. The (not quite) White Paper: Australia’s foreign affairs and trade policy, Advanc- Inquiry into Australia’s Maritime Strategy ing the National Interest The interdepartmental consultation The response was presented out of sit- process is being finalised and a response ting on 20 July 2004 and tabled on will be tabled in due course. 3 August 2004. Review of the Defence annual report Inquiry into current health preparation 2002-03 arrangements for the deployment of Aus- The response is being finalised and will tralian Defence Forces overseas be tabled shortly. The response is under consideration. Report of the Parliamentary Delegation to INFORMATION TECHNOLOGIES (Select) the Gulf States, 10-23 April 2004 In the public interest: Monitoring Austra- The government does not propose to re- lia’s media spond to the report of the visit but will respond to the recommendations in the The government is preparing a response final report of the Inquiry into Expand- which will consider the report in the ing Australia’s Trade and Investment context of a number of subsequent re- Relationship with the Economies of the ports that raise similar or related issues. Gulf States. LEGAL AND CONSTITUTIONAL FOREIGN AFFAIRS, DEFENCE AND LEGISLATION TRADE LEGISLATION Provisions of the Sex Discrimination Aspects of the Veterans’ Entitlements Act Amendment (Teaching Profession) Bill 1986 and the Military Compensation 2004 Scheme The government had regard to the The response was tabled on 12 August Committee’s recommendations, but de- 2004. cided to proceed with the Bill in the form in which it was introduced into the Parliament.

CHAMBER Thursday, 9 December 2004 SENATE 93

LEGAL AND CONSTITUTIONAL ise the second part of that inquiry, con- REFERENCES sidering the financial sustainability of Reconciliation: Off track the Island, in 2005. As many of the is- The government is considering the re- sues raised in ‘In the Pink or in the sponse and it will be tabled in due Red?’ will be considered under the Gov- course. ernance Inquiry’s two reports, it is not intended to respond further to this re- State Elections (One Vote, One Value) Bill port. 2001 [2002] Norfolk Island electoral matters The State Elections (One Vote, One Value) Bill 2001 [2002] lapsed upon the Consultation on the response is in train prorogation of the Parliament on 31 Au- and a response is expected to be tabled gust 2004 and was discharged from the in the near future. Notice Paper on 15 November 2004. Not a town centre. The proposal for pay The legislation was restored to the Sen- parking in the Parliamentary Zone ate Notice Paper on 17 November 2004. The response was presented out of sit- The Government will consider a re- ting on 23 November 2004 and tabled sponse to the Committee’s report when on 29 November 2004. the legislation is debated in the Senate. Quis custodiet ipsos custodes? Inquiry Legal aid and access to justice into governance on Norfolk Island The government is considering the rec- A draft response to the first part of the ommendations of the report and a re- report has been prepared in consultation sponse will be tabled in due course. with the Norfolk Island Government. It MEDICARE (Senate Select) is expected to be tabled shortly. Medicare—healthcare or welfare? and NATIVE TITLE AND THE ABORIGINAL Second report: Medicare Plus: the future AND TORRES STRAIT ISLANDER LAND for Medicare? FUND (Joint Statutory) A combined response to both of these Second interim report for the s.206 in- reports is being finalised and is expected quiry: Indigenous land use agreements to be tabled in due course. The response is in the final approval MIGRATION (Joint, Standing) stage and is expected to be tabled 2003 To make a contribution: Review of shortly skilled labour migration programs 2004 Effectiveness of the National Native Title The response is being finalised and will Tribunal in fulfilment of the Committee’s be tabled shortly. duties pursuant to subparagraph 206(d)(i) of the Native Title Act 1998 MINISTERIAL DISCRETION IN MIGRA- TION MATTERS (Senate Select) The response is being finalised and will be tabled as soon as possible. Report PUBLIC ACCOUNTS AND AUDIT (Joint The report is being considered and will Statutory) be tabled in due course. NATIONAL CAPITAL AND EXTERNAL Corporate governance and accountability arrangements for Commonwealth Gov- TERRITORIES (Joint, Standing) ernment business enterprises, December In the pink or in the red? Health services 1999 (Report No. 372) on Norfolk Island The government is considering its re- Since this report was tabled the Com- sponse to outstanding recommendations mittee has tabled the first part of its In- and a response will be tabled in due quiry into Governance on Norfolk Island course. (December 2003) and proposes to final-

CHAMBER 94 SENATE Thursday, 9 December 2004

Review of independent auditing by regis- Provisions of the Civil Aviation Legislation tered company auditors (Report No. 391) Amendment (Mutual Recognition with The response is being considered in New Zealand and Other Matters) Bill light of the government’s position on the 2003 CLERP 9 Act which passed through par- The bill lapsed upon the prorogation of liament in June 2004. A response to the the Parliament on 31 August 2004. The report will be tabled as soon as possible. government will respond if the bill is re- Inquiry into the draft Financial Frame- introduced and does not propose to re- work Legislation Amendment Bill (Report spond further at this stage. No. 395) SCRUTINY OF BILLS (Senate Standing) The response was presented out of sit- Third report of 2004: The quality of ex- ting on 26 June 2004 and tabled on planatory memoranda accompanying bills 3 August 2004. The response is under consideration and Review Auditor-General’s Reports 2002- will be tabled in due course. 2003: Fourth Quarter (Report No. 398) SUPERANNUATION AND FINANCIAL The response to recommendations 2 and SERVICES (Senate Select) 3 was sent to the Committee on 23 No- Report on early access to superannuation vember 2004. benefits Inquiry into the management and integ- The government is considering the rec- rity of electronic information in the Com- ommendations. monwealth (Report No. 399) SUPERANNUATION (Senate Select) The response to the Joint Committee of Superannuation and standards of living in Public Accounts and Audit is an administrative response and fell due during the retirement—Report on the adequacy of tax arrangements for superannuation and election period. The response is a whole of government response, coordinated by related policy the Department of Finance (Australian The calling of the election intervened in Government Information Management the process of the government finalising Office) and accordingly was held over its response to the recommendations of until the incoming government was op- this report. erational. The response is expected to be Planning for retirement tabled shortly. The government is considering the rec- RURAL AND REGIONAL AFFAIRS AND ommendations. TRANSPORT LEGISLATION Draft Superannuation Industry (Supervi- An appropriate level of protection? The sion) Amendment Regulations 2003 and importation of salmon products: A case draft Retirement Savings Account study of the administration of Australian Amendment Regulations 2003 quarantine and the impact of interna- The regulations considered by the Sen- tional trade arrangements ate Select Committee on Superannuation A response will be tabled during the were disallowed by the Senate on next sitting. 18 September 2003, chiefly on the basis Biosecurity Australia’s of issues raised during the Committee’s investigation of the draft regulations. The pig meat policy determination went before the Federal Court on 8-11 No- In response, the government prepared vember 2004. It is not considered ap- revised regulations that addressed some propriate to provide a response until the of the concerns raised by the Committee decision from the Court is known.

CHAMBER Thursday, 9 December 2004 SENATE 95

in its report. The revised regulations The Australia-United States Free Trade were gazetted on 10 October 2003. Agreement (61st Report) The government considers, and in sup- The report is being considered and a reporting the revised regulations the Sen- sponse will be tabled as soon as possi- ate agreed, that other issues raised did ble. not require government intervention in Reports: Government Responses the context of the portability debate. No further response is anticipated. The DEPUTY PRESIDENT—In accor- TREATIES (Joint, Standing) dance with the usual practice, I table a report of parliamentary committee reports to which Treaties tabled May and June 2003 (53rd the government has not responded within the Report) prescribed period. The report has been circu- The response was tabled on 2 December lated to honourable senators. With the con- 2004. currence of the Senate, the report will be Treaties tabled 9 September 2003 (55th incorporated in Hansard. Report) The document read as follows— The response was tabled on 2 December 2004. PRESIDENT’S REPORT TO THE SENATE ON GOVERNMENT RESPONSES OUTSTAN- Treaties tabled on 8 October 2003 (56th DING TO PARLIAMENTARY COMMITTEE Report) REPORTS The response was tabled on 12 August AS AT 9 DECEMBER 2004 2004. PREFACE Convention for the Safety of Life at Sea, 1974 and the International Ship and Port This document continues the practice of present- Facility (ISPS) Code (57th Report) ing to the Senate twice each year a list of government responses to Senate and joint committee The response is being finalised and will reports as well as responses which remain out- be tabled in due course. standing. Optional Protocol to the Convention The practice of presenting this list to the Senate is against Torture and other Cruel, Inhuman in accordance with the resolution of the Senate of or Degrading Treatment of Punishment 14 March 1973 and the undertaking by successive (58th Report) governments to respond to parliamentary commit- The government does not propose to re- tee reports in timely fashion. On 26 May 1978 the spond to this report as the recommenda- then Minister for Administrative Services (Sena- tions are in accordance with government tor Withers) informed the Senate that within six policy. months of the tabling of a committee report, the Treaties tabled in December 2003 (59th responsible minister would make a statement in Report) the Parliament outlining the action the govern- In each case the Committee supports ment proposed to take in relation to the report. and recommends that binding treaty ac- The period for responses was reduced from six tion be taken and a response from the months to three months in 1983 by the then in- government is not required. coming government. The then Leader of the Gov- ernment in the Senate announced this change on Treaties tabled on 2 March 2003 (60th 24 August 1983. The method of response contin- Report) ued to be by way of statement. Subsequently, on The response was tabled on 2 December 16 October 1991 the then government advised 2004. that responses to committee reports would be made by letter to a committee chair, with the let-

CHAMBER 96 SENATE Thursday, 9 December 2004 ter being tabled in the Senate at the earliest op- An entry on this list for a report of the JCPAA portunity. The current government in June 1996 containing only administrative recommendations affirmed its commitment to respond to relevant is annotated to indicate that the response is to be parliamentary committee reports within three provided in the form of an executive minute. months of their presentation. Consequently, any other government response is This list does not usually include reports of the not required. However, any reports containing Parliamentary Standing Committee on Public policy recommendations are included in this re- Works or the following Senate Standing Commit- port as requiring a government response. tees: Appropriations and Staffing, Selection of Legislation and other committees report on bills Bills, Privileges, Procedure, Publications, Regula- and the provisions of bills. Only those reports in tions and Ordinances, Senators’ Interests and this category that make recommendations which Scrutiny of Bills. However, such reports will be cannot readily be addressed during the considera- included if they require a response. Government tion of the bill, and therefore require a response, responses to reports of the Public Works Commit- are listed. The list also does not include reports by tee are normally reflected in motions in the House legislation committees on estimates or scrutiny of of Representatives for the approval of works after annual reports, unless recommendations are made the relevant report has been presented and con- that require a response. sidered. A guide to the legend used in the ‘Date re- Reports of the Joint Committee of Public Ac- sponse presented/made to the Senate’ column counts and Audit (JCPAA) primarily make ad- * See document tabled in the Senate on 9 De- ministrative recommendations but may make cember 2004, entitled Government Re- policy recommendations. A government response sponses to Parliamentary Committee Re- is required in respect of such policy recommenda- ports–Response to the schedule tabled by the tions made by the committee. However, responses President of the Senate on 24 June 2004, for to administrative recommendations are made in Government interim/final response. the form of an executive minute provided to, and subsequently tabled by, the committee. Agencies ** Report contains administrative recommendations only—response is to be provided direct responding to administrative recommendations are required to provide an executive minute to the committee in the form of an executive minute. within 6 months of the tabling of a report. The committee monitors the provision of such responses.

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) A Certain Maritime Incident (Select) Report on a Certain Maritime Incident 23.10.02 *(interim) No Administration of Indigenous Affairs (Select) Interim report 16.11.04 (pre- Not required - sented 31.8.04) ASIO, ASIS and DSD (Joint Statutory) Private review of agency security ar- 13.10.03 *(interim) No rangements Intelligence on Iraq’s weapons of mass 1.3.04 *(final) No destruction Review of the listing of the Palestinian 16.6.04 *(final) No Islamic Jihad

CHAMBER Thursday, 9 December 2004 SENATE 97

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Australian Crime Commission (Joint Statutory) Cybercrime 24.3.04 *(interim) No Inquiry into the trafficking of women for 24.6.04 *(interim) No sexual servitude Examination of the annual report of the 16.11.04 (pre- Not required - National Crime Authority and the Austra- sented 31.8.04) lian Crime Commission Community Affairs Legislation Tobacco advertising prohibition 16.11.04 (pre- - Time not expired sented 30.9.04) Community Affairs References The patient profession: Time for action— 26.6.02 *(interim) No Report on nursing A hand up not a hand out: Renewing the 11.3.04 *(interim) No fight against poverty—Report on poverty and financial hardship Hepatitis C and the blood supply in Aus- 17.6.04 *(interim) No tralia Forgotten Australians: A report on Aus- 30.8.04 - No tralians who experienced institutional or out-of-home care as children Inquiry into aged care—Interim report 16.11.04 (pre- Not required - sented 30.9.04) Corporations and Securities (Joint Statutory) Report on aspects of the regulation of 8.3.01 *(interim) No proprietary companies Corporations and Financial Services (Joint Statutory) Report on the regulations and ASIC pol- 23.10.02 *(interim) No icy statements made under the Financial Services Reform Act 2001 Review of the Managed Investments Act 12.12.02 *(interim) No 1998 Inquiry into Regulation 7.1.29 in Corpo- 26.6.03 *(interim) No rations Amendment Regulations 2003 (No. 3), Statutory Rules 2003 No. 85 Money matters in the bush: Inquiry into 10.02.04 (pre- *(interim) No the level of banking and financial ser- sented 15.01.04) vices in rural, regional and remote areas of Australia Report on the ATM fee structure 10.02.04 (pre- *(interim) No sented 15.01.04)

CHAMBER 98 SENATE Thursday, 9 December 2004

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Corporations Amendment Regulations 24.3.04 *(interim) No 2003 (Batch 6); Draft Regulations: Cor- porations Amendment Regulations 2003/04 (Batch 7); and Draft Regula- tions: Corporations Amendment Regula- tions 2004 (Batch 8) Corporations Amendment Regulations 15.6.04 *(interim) No 7.1.29A, 7.1.35A and 7.1.40(h) CLERP (Audit Reform and Corporate 15.6.04 (pre- *(interim) No Disclosure) Bill 2003: Part 1: Enforce- sented 4.6.04) ment, executive remuneration, continuous disclosure, shareholder participation and related matters CLERP (Audit Reform and Corporate 15.6.04 *(interim) No Disclosure) Bill 2003: Part 2: Financial reporting and audit reform Corporate insolvency laws: a stocktake 3.8.04 (presented - No 30.6.04) Economics Legislation Tax Laws Amendment (2004 Measures 12.5.04 *(final) No No. 1) Bill 2004 Economics References Report on the operation of the Australian 9.3.00 *(interim) No Taxation Office Inquiry into mass marketed tax effective 25.6.01 *(interim) No schemes and investor protection— Interim report Inquiry into mass marketed tax effec- 27.9.01 *(interim) No tive schemes and investor protection— Second report: A recommended resolution and settlement Inquiry into mass marketed tax effective 12.2.02 (pre- *(interim) No schemes and investor protection—Final sented 11.2.02) report A review of public liability and profes- 21.10.02 *(interim) No sional indemnity insurance Report on the structure and effects of the 25.6.04 Not required - Australian taxation system Employment, Workplace Relations and Education Legislation Inquiry into the proposed amendment in 16.11.04 (pre- Not required - the form of Schedule 1B to the Work- sented 27.10.04) place Relations Amendment (Codifying Contempts) Bill 2004—Interim report

CHAMBER Thursday, 9 December 2004 SENATE 99

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Employment, Workplace Relations and Education References Bridging the skills divide 24.11.03 (pre- *(interim) No sented 6.11.03) Beyond Cole: The future of the construc- 21.6.04 *(interim) No tion industry: confrontation or cooperation? Office of the Chief Scientist 5.8.04 - No Commonwealth funding for schools 11.8.04 - No Inquiry into lifelong learning—Interim 16.11.04 (pre- Not required - report sented 20.10.04) Inquiry into indigenous training and em- 16.11.04 (pre- Not required - ployment—Interim report sented 20.10.04) Inquiry into student income support— 16.11.04 (pre- Not required - Interim report sented 20.10.04) Environment, Communications, In- formation Technology and the Arts References The value of water: Inquiry into Austra- 5.12.02 *(interim) No lia’s urban water management Regulating the Ranger, Jabiluka, Bever- 14.10.03 *(interim) No ley and Honeymoon uranium mines Libraries in the online environment 16.10.03 3.8.04 (presented No 2.7.04) The Australian telecommunications net- 5.8.04 - No work Competition in broadband services 10.8.04 - No Budgetary and environmental implica- 16.11.04 (pre- Not required - tions of the Government’s Energy White sented 2.9.04) Paper—Interim report Turning back the tide—the invasive spe- 8.12.04 - Time not expired cies challenge: Report on the regulation, control and management of invasive species and the Environment Protection and Biodiversity Conservation Amend- ment (Invasive Species) Bill 2002 Finance and Public Administration References Recruitment and training in the Austra- 18.9.03 *(interim) No lian Public Service Staff employed under Members of Par- 16.10.03 *(interim) No liament (Staff) Act 1984 Administrative review of veteran and 4.12.03 *(interim) No military compensation and income support

CHAMBER 100 SENATE Thursday, 9 December 2004

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Inquiry into Government advertising 16.11.04 (pre- Not required - and accountability—Interim report sented 3.9.04) Foreign Affairs, Defence and Trade (Joint Standing) Report of the Parliamentary Delegation 11.5.04 (pre- *(final) No to the Solomon Islands, 17-18 December sented 6.5.04) 2003 Near neighbours—good neighbours: An 15.6.04 *(interim) No inquiry into Australia’s relationship with Indonesia Australia’s maritime strategy 21.6.04 *(interim) No Report of the Parliamentary Delegation 3.8.04 *(final) No to the Gulf States, 10-23 April 2004 Human rights and good governance in 24.6.04 - No the Asia Pacific Watching brief on the war on terrorism 3.8.04 (presented 2.12.04 No 29.6.04) Australia’s engagement with the World 3.8.04 (presented - No Trade Organisation 2.7.04) Review of the Defence Annual Report 11.8.04 *(interim) No 2002-03 Foreign Affairs, Defence and Trade Legislation Aspects of the Veterans Entitlements Act 18.9.03 12.8.04 No 1986 and the Military Compensation Scheme Provisions of the Military Rehabilitation 22.3.04 *(interim) No and Compensation Bill 2003 and the Military Rehabilitation and Compensa- tion (Consequential and Transitional Provisions) Bill 2003 Foreign Affairs, Defence and Trade References A Pacific engaged: Australia’s relations 12.8.03 1.4.04 - Presid- No with Papua New Guinea and the island ing Officers’ states of the south-west Pacific response, *(interim) Voting on trade: The General Agreement 27.11.03 *(interim) No on Trade in Services and an Australia-US Free Trade Agreement The (not quite) White Paper: Australia’s 4.12.03 3.8.04 (presented No foreign affairs and trade policy, Advanc- 20.7.04) ing the National Interest Bali 2002: Security threats to Australians 12.8.04 2.12.04 No in South East Asia

CHAMBER Thursday, 9 December 2004 SENATE 101

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Taking stock: Current health preparation 12.8.04 *(interim) No arrangements for the deployment of Aus- tralian Defence Forces overseas Effectiveness of Australia’s military jus- 16.11.04 (pre- Not required - tice system—Interim report sented 8.9.04) Free Trade Agreement between Australia and the United States of America (Select) Final report 5.8.04 - No Information Technologies (Select) In the public interest: Monitoring Austra- 13.4.00 *(interim) No lia’s media Legal and Constitutional Legislation Provisions of the Sex Discrimination 11.5.04 *(final) No Amendment (Teaching Profession) Bill 2004 Legal and Constitutional References Reconciliation: Off track 9.10.03 *(interim) No State Elections (One Vote, One Value) 3.3.04 *(interim) No Bill 2001 [2002] Legal aid and access to justice 15.6.04 (pre- *(interim) No sented 8.6.04) The road to a republic 16.11.04 (pre- - Time not expired sented 31.8.04) Inquiry into Australian expatriates— 16.11.04 (pre- Not required - Interim report sented 1.10.04) Lindeberg Grievance (Select) Report 16.11.04 (pre- Not required - sented 15.11.04) Medicare (Select) Medicare—healthcare or welfare? 30.10.03 *(interim) No Second report: Medicare Plus: the future 11.2.04 *(interim) No for Medicare? Migration (Joint Standing) To make a contribution: Review of 29.3.04 *(interim) No skilled labour migration programs 2004 Ministerial Discretion in Migration Matters (Select) Report 31.3.04 *(interim) No National Capital and External Territo- ries (Joint Statutory) In the pink or in the red? Health services 6.8.01 (pre- *(final) No on Norfolk Island sented 9.7.01) Norfolk Island electoral matters 26.8.02 *(interim) No Not a town centre: The proposal for pay 13.10.03 29.11.04 (pre- No parking in the parliamentary zone sented 23.11.04)

CHAMBER 102 SENATE Thursday, 9 December 2004

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Quis custodiet ipsos custodes? Inquiry 3.12.03 *(interim) No into governance on Norfolk Island A national capital, a place to live: Inquiry 3.8.04 (presented - No into the role of the National Capital Au- 2.7.04) thority Norfolk Island: Review of the annual 3.8.04 (presented - No reports of the Department of Transport 2.7.04) and Regional Services and the Depart- ment of the Environment and Heritage Indian Ocean territories: Review of the 16.11.04 (pre- - Time not expired annual reports of the Department of sented 31.8.04) Transport and Regional Services and the Department of Environment and Heritage Difficult choices: Inquiry into the role of 16.11.04 (pre- - Time not expired the National Capital Authority in deter- sented 31.8.04) mining the extent of redevelopment of the Pierces Creek Settlement in the ACT Native Title and the Aboriginal and Torres Strait Islander Land Fund (Joint Statutory) Second interim report for the s.206 in- 26.9.01 *(interim) No quiry: Indigenous land use agreements Effectiveness of the National Native Title 4.12.03 *(interim) No Tribunal Public Accounts and Audit (Joint Statutory) Corporate governance and accountability 16.2.00 *(interim) No arrangements for Commonwealth government business enterprises, December 1999 (Report No. 372) Review of independent auditing by 18.9.02 *(interim) No registered company auditors (Report No. 391) Inquiry into the draft Financial Frame- 20.8.03 3.8.04 (presented No work Legislation Amendment Bill (Re- 26.6.04) port No. 395) Review of Auditor-General’s Reports 30.3.04 *(interim) No 2002-2003: Fourth Quarter (Report No. 398) Inquiry into the management and integ- 1.4.04 *(interim) No rity of electronic information in the Commonwealth (Report No. 399) Review of aviation security in Australia 25.6.04 - No (Report No. 400) Annual report 2003-2004 (Report 401) 11.8.04 Not required -

CHAMBER Thursday, 9 December 2004 SENATE 103

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Review of Auditor-General’s Reports 13.8.04 - No 2003-2004: First and Second Quarters (Report No. 402) Rural and Regional Affairs and Transport Legislation An appropriate level of protection? The 7.6.00 *(interim) No importation of salmon products: A case study of the administration of Australian quarantine and the impact of international trade arrangements Australian Wool Innovation Limited— 12.2.04 2.12.04 No Application and expenditure of funds advanced under Statutory Funding Agreement dated 31 December 2000 Biosecurity Australia’s import risk 13.5.04 *(interim) No analysis for pig meat Provisions of the Civil Aviation Legis- 17.6.04 - No lation Amendment (Mutual Recognition with New Zealand and Other Matters) Bill 2003 Administration of the Civil Aviation 5.8.04 Not required - Safety Authority—Interim report Administration of AusSAR in relation 12.8.04 - No to the search for the Margaret J Rural and Regional Affairs and Transport References Rural water use 12.8.04 - No Australian forest plantations: A review 16.11.04 (pre- - Time not expired of Plantations for Australia: The 2020 sented 2.9.04) Vision Scrafton Evidence (Select) Report 9.12.04 - Time not expired Scrutiny of Bills Third report of 2004: The quality of ex- 24.3.04 *(interim) No planatory memoranda accompanying bills Superannuation and Financial Ser- vices (Select) Report on early access to superannuation 12.2.02 (pre- *(interim) No benefits sented 31.1.02) Superannuation (Select) Tax arrangements for superannuation and 12.12.02 *(interim) No related policy Planning for retirement 11.8.03 (pre- *(interim) No sented 29.7.03)

CHAMBER 104 SENATE Thursday, 9 December 2004

Committee and title of report Date report Date response Response made tabled presented/made within specified to the Senate period (3 months) Draft Superannuation Industry (Supervi- 10.9.03 *(final) No sion) Amendment Regulations 2003 and Draft Retirement Savings Account Amendment Regulations 2003 Treaties (Joint Standing) Treaties tabled in May and June 2003 20.8.03 2.12.04 No (53rd report) Treaties tabled on 9 September 2003 16.10.03 2.12.04 No (55th report) Treaties tabled on 8 October 2003 (56th 1.12.03 12.8.04 No report) Convention for the Safety of Life at Sea, 4.12.03 *(interim) No 1974 and the International Ship and Port Facility (ISPS) Code (57th report) Optional Protocol to the Convention 23.3.04 *(final) No against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (58th report) Treaties tabled in December 2003 (59th 31.3.04 *(final) No report) Treaties tabled on 2 March 2004 (60th 16.6.04 2.12.04 No report) The Australia-United States Free Trade 23.6.04 *(interim) No Agreement (61st report) Treaties tabled on 30 March 2004 (62nd 5.8.04 - No report)

Legal and Constitutional Legislation web site of the Legal and Constitutional Leg- Committee islation Committee from the last parliament. Documents I recommend people look through those Senator FERRIS (South Australia) (3.36 submissions if they are interested in the de- p.m.)—On behalf of the Chair of the Legal tail. I think it appropriate to speak on this and Constitutional Legislation Committee, matter because it revisits and plays a part in Senator Payne, I present submissions re- what I still believe was an appalling process ceived by the committee on the committee’s and an appalling decision by the Senate be- inquiry into the provisions of the Marriage fore the last election to truncate the in- Legislation Amendment Bill 2004. quiry—basically to negate it—despite the large public interest, and to guillotine the Senator BARTLETT (Queensland— Marriage Legislation Amendment Bill 2004 Leader of the Australian Democrats) (3.37 through the Senate. p.m.)—by leave—I move: I do not want to revisit the content of that That the Senate take note of the documents. legislation. There were some strong views I expect that many of the submissions, cer- expressed across the spectrum, including by tainly the substantive ones, would be on the me and many other Democrats. As I said at

CHAMBER Thursday, 9 December 2004 SENATE 105 the time, I thought it was extremely unwise felt it was appropriate to specifically draw to pass it. Beyond simply the wisdom or oth- attention to and elaborate on some of my erwise of passing that legislation, the fact concerns and to express the very strong wish that the decision was made to pass it after that the process does not happen again before having been referred to the committee was June or indeed after the end of June when the very unfortunate. The submissions that have government will have a majority in this been tabled signal the enormous amount of place. Obviously, by virtue of that majority, public interest in the issue. A lot of the public they will be able to stop things going to expressed views that disagreed very strongly committees. with mine. But preventing the committee This is an example—even when the gov- from working through the specifics of the ernment does not have the numbers in this real issues underlying the bill and trying to place—of how the Senate allows itself, from dig below some of the heat and into the real time to time, to follow processes that are far guts of the matter actually did broader dam- from ideal. When we look at our key role as age than whether or not it was a good bill. a house of review and at the value of the It is good that submissions are still avail- Senate committee system, which allows the able, that they are presented to the Senate public to express and exchange their views and that people can still access and absorb with senators, questioning and testing view- them. The truncated inquiry prevented the points and evidence in a public forum, on the opportunity for public hearings, particularly, Hansard record and under parliamentary and an exchange of views in what is usually privilege, we see that it is an incredibly valu- the somewhat less heated environment of the able process—particularly the public en- Senate committee process. With senators gagement. It is always unfortunate if it is questioning, witnesses tend to cool down the truncated, as it was on this occasion. rhetoric and to emphasise things in a more I certainly hope that some of the issues rational way. It often can be beneficial for all and views expressed from all sides of the of us to test our strongly held views against debate are still taken on board. Those views strongly held counterviews. To negate the have just been tabled and I expect that the opportunity for that to happen just to enable substantive submissions will still be avail- the bill to be guillotined was really very unable on the committee web site. fortunate. It compounded my broader view Question agreed to. of how unfortunate it was that the bill was passed. I suppose my views are coloured by Economics References Committee that. Maybe if I thought the bill was fantas- Reference tic, I would be somewhat less concerned Senator STEPHENS (New South Wales) about it. (3.43 p.m.)—by leave—I move: It is fairly unusual to push a bill through That the following matters be referred to the while it is still before a committee. I can Economics References Committee for inquiry and think of one other example. Prior to the 2001 report by the first sitting day in September 2005: election, one of the pieces of migration legis- Possible links between household debt, de- lation which were guillotined through the mand for imported goods and Australia’s cur- Senate was also before a committee. The rent account deficit, with particular reference legislation was pushed through anyway. That to: process is pretty uncommon and I hope that (a) current levels of household debt and it remains very uncommon. For that reason, I whether these are historically high (as a

CHAMBER 106 SENATE Thursday, 9 December 2004

proportion of household income or oth- Foreign Affairs, Defence and Trade Ref- erwise); erences Committee— (b) factors, including the lending policies of Appointed—Substitute member: Sena- banks and other financial institutions, tor Bartlett to replace Senator Ridgeway that contribute to household debt levels; for the committee’s inquiry into the ef- (c) the extent to which demand for imported fectiveness of the Australian military goods contributes to household debt lev- justice system els; Legal and Constitutional References (d) the extent to which demand for imported Committee— goods by Australian households contrib- Appointed—Participating member: utes to the current account deficit; Senator Murray. (e) risks for households and the economy of Question agreed to. high household debt levels; DOCUMENTS (f) whether there is a case for addressing the lending policies of banks and other Department of Immigration and credit providers and if so, what practical Multicultural and Indigenous Affairs options are available; Debate resumed from 2 December, on mo- (g) whether there are other measures that tion by Senator Buckland: might be taken in place of possible re- That the Senate take note of the document. strictions on lending practices which Senator BARTLETT (Queensland— would be as effective; Leader of the Australian Democrats) (3.46 (h) whether any Commonwealth social and p.m.)—I have spoken a couple of times to- economic policy settings should be changed as a result of matters identified day on immigration related matters, particu- above; larly to address the situation faced by asylum seekers and refugees in Australia, so I will (i) whether there is a need for any other form of regulatory intervention in rela- not address that aspect of the report. I want tion to this issue; and to speak slightly more broadly about the role (j) any related matters. of immigration and the role of the Depart- ment of Immigration and Multicultural and Question agreed to. Indigenous Affairs. I hope senators and the Membership government would acknowledge that whilst The DEPUTY PRESIDENT—The on many occasions I have been critical of President has received a letter from a party aspects of the Migration Act and the way that leader seeking variations to the membership it is administered—I think that is our role in of certain committees. this place—I have certainly also acknowl- Senator VANSTONE (South Australia— edged the enormous difficulty and complex- Minister for Immigration and Multicultural ity of this area, in part because of the way the and Indigenous Affairs and Minister Assist- law is structured and because it inevitably ing the Prime Minister for Indigenous Af- deals with a hard subject matter. fairs) (3.43 p.m.)—by leave—I move: Given that situation, the reports that deal That senators be discharged from and ap- with the administration of the department are pointed to committees as follows: important. The broader challenge of trying to engage with millions and millions of people—and there are literally millions of people every year who in some shape or form

CHAMBER Thursday, 9 December 2004 SENATE 107 use the Migration Act: every person who autism. It is a clear example of the basic, enters or leaves this country is doing so un- undeniable fact that our Migration Act is der the powers of the Migration Act, whether discriminatory. Every day it discriminates it is for the briefest of visits or to settle per- against people on the grounds of disability, manently—is to continue to look at the gender, marital status, sexuality, age and changing nature of migration in Australia. their general health—just to name some. We have, in many ways, the benefit of a con- That is not completely avoidable, but we can sciously determined migration program in do a lot more to reduce that, particularly in this country and a regime that has sur- this era with a lot more temporary movement rounded that for over 50 years. Many other of people. We want to be able to encourage countries around the world are only now movement into and out of Australia and en- starting to think about a proper regulatory courage engagement with the world. We regime for regulating settlement type migra- cannot have all these discriminatory barriers, tion. We have a big advantage there. particularly when they are able to operate in The debate about migration in Australia is such an arbitrary way. That is an area that often very simplistic—whether we should needs more focus, and it is certainly an area have massive increases in numbers or change that I and the Australian Democrats will be the composition. Those debates are important paying more attention to. There is more to as far as they go, but I think we need to ac- say about the issue but, given the time, I seek knowledge that the vast majority of migra- leave to continue my remarks later. tion issues are not to do with how we often Leave granted; debate adjourned. think of it—of people pulling up roots from Consideration one country far away and then settling here. The following orders of the day relating to Although people still do that—some senators government documents were considered: in this chamber were born in one country and then uprooted with their families, settled Australian Law Reform Commission— somewhere else and put down roots—there Report no. 99—Genes and ingenuity: Gene patenting and human health, June 2004. is much more temporary movement these Motion of Senator Buckland to take note of days. The number of people coming to Aus- document called on. On the motion of the tralia, even on longer term visas, temporarily Leader of the Australian Democrats (Sena- rather than permanently is dramatically in- tor Bartlett) debate was adjourned till creasing. So, whenever we talk about migra- Thursday at general business. tion intake, numbers and composition, we Australian War Memorial—Report for should be conscious that permanent migra- 2003-04. Motion of Senator Buckland to tion of people into Australia and permanent take note of document agreed to. departures are in a minority. That is not a bad Australian Electoral Commission—Report thing; it is the reality. We need to do more to for 2003-04. Motion of Senator Buckland get our head around that when we have de- to take note of document agreed to bates about how migration should work. Housing Assistance Act 1996—Report for That is why I have concerns about the in- 2002-03 on the operation of the 1999 nate discriminatory nature of our migration Commonwealth-State Housing Agreement regime. Earlier this week, we had questions [Final]. Motion of Senator Buckland to take note of document called on. On the in this place about a child whose family was motion of Senator Bartlett debate was ad- being prevented from getting permanent journed till Thursday at general business. residency in Australia because their child has

CHAMBER 108 SENATE Thursday, 9 December 2004

Repatriation Medical Authority—Report Buckland to take note of document agreed for 2003-04—Corrigendum. Motion of to. Senator Buckland to take note of document Sydney Harbour Federation Trust—Report agreed to. for 2003-04. Motion of Senator Buckland Australian Centre for International Agri- to take note of document called on. On the cultural Research—Report for 2003-04. motion of Senator Bartlett debate was ad- Motion of Senator Buckland to take note of journed till Thursday at general business. document agreed to. COMMITTEES Great Barrier Reef Marine Park Author- Employment, Workplace Relations and ity—Report for 2003-04. Motion of Sena- tor Buckland to take note of document Education References Committee called on. On the motion of Senator Bart- Interim Report lett debate was adjourned till Thursday at Debate resumed from 2 December, on mo- general business. tion by Senator Webber: Office of the Federal Privacy Commis- That the Senate take note of the report. sioner—Report for 2003-04 on the operation of the Privacy Act 1988. Motion of Senator BARTLETT (Queensland— Senator Buckland to take note of document Leader of the Australian Democrats) (3.51 called on. On the motion of Senator Bart- p.m.)—As with all of these documents or lett debate was adjourned till Thursday at reports, this report of the Employment, general business. Workplace Relations and Educations Refer- Australian Greenhouse Office—Report for ences Committee, Inquiry into student in- 2003-04. Motion of Senator Buckland to come support, is an interim report. These take note of document agreed to. documents are basically short documents put Department of the Environment and Heri- in by the committees at the prorogation of tage—Report for 2003-04, including the the parliament before the last election. This final annual report of the Australian Heri- inquiry into student income support was es- tage Commission. Motion of Senator tablished on the initiative of the Australian Buckland to take note of document agreed Democrats and Senator Natasha Stott De- to. spoja. It is an area of the education debate Aboriginal and Torres Strait Islander Ser- that has not had sufficient attention. The big vices—Report for 2003-04. Motion of debates we have had in this chamber around Senator Buckland to take note of document the future of higher education, universities, agreed to. training and TAFE have been very important North Queensland Land Council Native Ti- but they have tended to exclude or very tle Representative Body Aboriginal Corpo- much downplay a major aspect affecting the ration—Report for 2003-04. Motion of Senator Buckland to take note of document ability of Australians to access education, agreed to. and that is the adequacy of student income support. National Oceans Office—Report for 2003- 04. Motion of Senator Buckland to take It does not matter how low or high the note of document called on. On the motion fees are, how good the courses are, how of Senator Bartlett debate was adjourned good the staffing ratios are or how good the till Thursday at general business. ability to get into courses is if you do not Australian Institute of Marine Science— have enough income to survive while study- Report for 2003-04. Motion of Senator ing. This is an issue not just for school leav- ers but also for mature age people—people

CHAMBER Thursday, 9 December 2004 SENATE 109 in their 40s or over who are seeking to re- Rural and Regional Affairs and Transport train as, in many cases, they are required to Legislation Committee these days. In many cases they are encour- Interim Report aged or compelled to by the changing nature Debate resumed from 2 December, on mo- of the work force. We are all aware of the tion by Senator Webber: continuing change in the work force and in- That the Senate take note of the report. dustry and the need to upgrade skills or develop new skills to be able to continue to Senator BARTLETT (Queensland— participate in the work force. In many cases Leader of the Australian Democrats) (3.55 it is older people even more so than younger p.m.)—This interim report of the Rural and people who simply cannot access adequate Regional Affairs and Transport Legislation income support while they are studying to Committee titled Provisions of the National afford to undertake that education. It is an Animal Welfare Bill 2003 was required be- important issue. cause of the election and the committee being dissolved on the resumption of parlia- For that reason the Democrats have con- ment. It deals with the National Animal Wel- tinued to push the reference. It was pleasing fare Bill 2003 [2004], a bill which I intro- that the Senate agreed to recommence the duced to this place. It is a private senator’s inquiry. It was initially set up in March this bill. As the interim report says, the commit- year but the Senate yesterday agreed to re- tee could not complete the inquiry in the adopt the inquiry to report by mid-June next previous parliament but that if the bill were year. There have already been 131 submis- reintroduced in the next parliament and re- sions, including a large number from indi- ferred to the committee then the committee vidual students, groups representing students would recommence the inquiry. That bill has and universities. That shows the level of in- been reintroduced. At this stage I have not terest that is already there. It is a welcome determined whether to seek to re-refer it to sign that the committee will continue to look the committee but, as senators would know, at this. As I understand it, public hearings it is an area that I and the Democrats more have not yet been held, and the committee broadly have a strong interest in. has indicated that they will be necessary. There is no doubt that we need better ani- I take this opportunity to draw the Sen- mal welfare standards in this country and ate’s attention to the background of the in- better enforcement of the standards. In par- quiry and the report and the importance of it ticular, we need to do better at the federal as well as the Democrats’ commitment to the level. Not only do we need a nationally co- issue, which has been somewhat ignored or ordinated approach but the federal govern- put to one side by the other parties. We very ment must take its own responsibility seri- much encourage people who do have an in- ously in areas where it does have direct re- terest to engage with this inquiry to try to sponsibility; and it does have direct respon- find ways to address what is in some ways sibility in relation to the import and export of the biggest barrier to Australians being able animals, not just in the case of the notorious to access real opportunities into the future to live sheep and cattle trade but many other enable them to get the most out of what this animals imported into and exported from this country can offer them. country live—for example, dogs and native Question agreed to. wildlife. Other animals are imported and exported into and out of research facilities

CHAMBER 110 SENATE Thursday, 9 December 2004 and zoos and for other reasons. Those im- fare standards at the national level. It is cer- ports and exports happen with very little tainly appropriate to draw attention to this consideration given to the animal welfare interim report as a way of signalling where implications and I believe they need to be that process is up to. The bill has been rein- addressed. Whether this bill is the best way troduced into the Senate. We must look at the to do it is one question, but there is no doubt best way to use that to try and generate fur- that using Senate committees can be im- ther engagement on an issue that does need mensely valuable to inquire into private attention and that does attract public interest. members’ bills to generate greater awareness This is something that the Democrats and I and discussion about an issue. The bill may will continue to explore over the life of this not be the best way to deal with it, but it parliament. generates a requirement for the public and Question agreed to. the Senate to consider what is the best way to Legal and Constitutional References deal with a genuine problem. Committee Indeed, we saw that today with the report Report of the Senate Environment, Communica- tions, Information Technology and the Arts Debate resumed from 2 December, on motion by Senator Stott Despoja: Committee into invasive species. That committee also considered my private senator’s That the Senate take note of the report. bill. I do not know whether I should draw Senator BARTLETT (Queensland— attention to the fact that the committee Leader of the Australian Democrats) (4.01 unanimously decided that my bill was not the p.m.)—This report is titled The road to a way to go and could not be supported. Even republic and came from an inquiry into, as the Democrat on the committee, Senator the title would suggest, the best way forward Cherry, the chair, decided that my bill was towards Australia becoming a republic if and not the way to go. But the report said that the when the nation chooses to do so. It is a re- process of referring the bill to the committee port that was criticised by some in the com- had been very successful in moving the issue munity as being a waste of time. People said, out of the realm of debate amongst a small ‘Well, we had a referendum on that. Any number of cognoscenti and into the public more discussion is a waste of time.’ I think domain where people who had a specialist that is a very misguided approach. There is interest were able to engage with the political no doubt that the majority of the Australian and parliamentary process to look at ways of people would like to see Australia become a addressing a serious environmental issue— republic, and the debate is about how that weeds and invasive species. I am pleased to should best happen. I think it is appropriate see that the committee came down with a to have a process for engaging with the large number of unanimous recommenda- community about how best it should happen tions. It did far more than just reject my bill. in a way that takes it out of the heated politi- It proposed a number of recommendations to cal environment that you get around the time address and to get better action at a national of referendums and leading up to them. So I level on a much underrated environmental think it is a valuable report. problem—weeds and invasive species. This inquiry was another initiative of the This report addressed what I think is an- Democrats. I gave a commitment as Leader other underaddressed problem at the political of the Democrats some time back that we and parliamentary level—that is, animal wel- would seek to initiate a report on this issue.

CHAMBER Thursday, 9 December 2004 SENATE 111

We were able to do so, and I thank members did not take the opportunity while it was of the committee, including my Democrat there. colleague Senator Stott Despoja, for their The key thing is to ensure that there is an- contribution to the inquiry. The key aspect other opportunity for those of us who believe that I think needs to be emphasised is the it is the way to go, and I think it is a majority importance of respecting and acknowledging of the community who believe that. The de- all the different views in the community bate should continue, but there is no reason about how best we could move towards a why the debate should be an aggressive or republic—and indeed those views of the abusive one—it can be not only civilised but people in the community who do not believe also constructive. As I said before, some- it is a good idea, do not believe it is neces- times the process of having a debate, even sary or do not believe it is a sufficiently with people who disagree with going down worthwhile priority to put resources and en- that path, can value-add to the eventual out- ergy towards. It is certainly my view and that come. I spoke before on another document of my Democrats colleagues, indeed it is our about the history of Australia in relation to party’s policy, that we should seek to become migration—and, flowing on from that, our a republic. As to the nature and structure of history as a multicultural nation—and the that republic, that has to be a matter for the benefits of engaging more with the world. I Australian people. In some ways, the process am, speaking individually, somebody who of determining that can add to the richness believes there are more benefits than costs in and value of the republic itself when it is globalisation. I think we need to be wary of eventually adopted by vote of the Australian the dangers, but we nonetheless need to en- people. gage with it. Multiculturalism and our immi- I should say that, whilst my language may gration system is a key aspect of doing that. suggest that I think it is inevitable, I actually I have absolutely no doubt that, whilst the do not think it is inevitable that we become a benefits cannot be quantified in a dollar and republic. All sorts of things can happen and cents sort of way, there would be significant can change. It certainly will not happen in economic, cultural, social and, dare I say, and of itself by osmosis; it does need people almost spiritual benefit to Australia if we in the community to continue to promote the were to become a republic, particularly in the idea. Certainly that is something I am com- way we present ourselves to the rest of the mitted to. I do not know whether it is appro- world and the way we engage with the rest of priate or necessary to disclose this, but I am the world. I am talking about not just our a member of the Australian Republican own region in South-East Asia and the Pa- Movement and a former office-bearer. I cific but also our more traditional areas of would like to put in a belated apology for engagement like North America and Europe. missing their AGM in Queensland last week. I believe they will perceive us differently as I thought I would be able to get to that, but I a republic. Even the UK would in my view did not. I believe that organisation, particu- perceive us differently, and in some ways larly in the last year or so, has done a lot of more positively, if we were to become a re- valuable work at grassroots level trying to public. It would value add to how we engage engage people in the ongoing debate. This is with the world in the globalised 21st century. not something that is going to happen in a I think it would be of extra benefit to us in all hurry; it could well be some time. That is sorts of immeasurable ways. That does not why I am personally disappointed that we mean we have to rush it inappropriately or

CHAMBER 112 SENATE Thursday, 9 December 2004 try to force it down the throat of people who larly refer them to the contributions made by are still less than willing to receive it. It is Mr Andrew Robb and Mr Malcolm Turnbull, something that, nonetheless, we should con- who have chosen, at their first possible op- tinue to promote and engage with. I believe portunity, to make a contribution in the Aus- the Senate, as is often the case, through its tralian parliament to keep the fight and the committee processes here has done a valu- debate on this issue alive. They demonstrate able job in helping move things down that a true bipartisan commitment to pursuing path. I not only commend the report to the this debate and moving it forward in the Aus- Senate and to the community but also com- tralian community. mend the broader aim of continuing down Western Australian senators have a long the road to a republic to all Australians. and proud history of pursuing this issue and Senator WEBBER (Western Australia) working hard on it in a bipartisan way. The (4.06 p.m.)—I also rise to make a brief con- ARM in Western Australia was a bit of a fa- tribution on this report and on the issue of vourite of my predecessor, former Senator Australia becoming a republic. I would like McKiernan, and there has been strong sup- to echo the sentiments expressed by Senator port from Senator Cook, Senator Eggleston Bartlett about the need to continue this de- and Senator Andrew Murray. They have all bate within the Australian political commu- done whatever they can to support the public nity as well as in the wider community, and debate on the need for Australia to become a to pay tribute to the hard work done by the republic and for Australians, particularly Australian Republican Movement. I would Western Australians, to get involved in the like to congratulate the Western Australian debate about what kind of republic we may branch of ARM—of which I am a member, become when that day—which I believe is just as Senator Bartlett is a keen member in inevitable—occurs. It will not come as a sur- Queensland—for the fine work they did in prise to anyone that Senator McKiernan, be- assisting the committee at its hearings in ing of Irish descent, is a staunch supporter, Perth for this report. I know many members but it has been a very happy and cross-party of ARM in Perth—a lot of them everyday community pursuing that issue within West- members of our community—were keen to ern Australia. contribute not only in terms of written sub- As Senator Bartlett has mentioned previ- missions but also in providing oral evidence. ously and also today, for Australia to con- Some members have campaigned long, hard tinue to have as its head of state someone and tirelessly on this issue, such as Professor from another nation, when we are one of the Craven, who has now left Notre Dame Uni- youngest, most thriving and multicultural versity for the Curtin University of Technol- nations in the world, is a little ironic. On the ogy. one hand we had Senator Vanstone earlier For anyone within this parliament who today championing the fact that the Austra- thinks that it is a waste of time, that we lian community is so multicultural and di- should no longer consider this issue, that the verse—we go out of our way as a parliament Australian community has ‘had its say and and as a community to celebrate that diver- made its views known’, I would urge them to sity and this government has introduced ini- read the first speeches of some of the newer tiatives like Harmony Day—yet, at the same members of the House of Representatives. It time in a rather jaded and not necessarily may sound very odd that I would refer peo- relevant insistence, we persist in having the ple to Liberal members, but I would particu- head of state of another country as our offi-

CHAMBER Thursday, 9 December 2004 SENATE 113 cial head of state. Anyone in this parliament achieve the inevitable outcome if it is pur- who has travelled overseas, either for per- sued, as it has been in Western Australia, in a sonal reasons or on official or semi-official cross-party, friendly way where we all work business, will realise how confusing that can together towards a common principle rather be, particularly to some of our Asian than focus on the things that divide us. This neighbours. will mean that we can have the debate about The Labor Party has for a long time pur- the kind of republic we want to become first sued the issue of Australia finding its place and then we can put that to the Australian in its own region and participating as an people. equal within ASEAN, within Asia and within That is one of the many reasons I was the wider Pacific, and this government has very proud during the election campaign to now got on board. A lot of these countries see that our leader, Mark Latham, gave the have a monarch as their head of state. For us commitment that, if a Labor government to insist that our head of state is someone were elected, Australia would move towards who comes from another country—not from becoming a republic. I acknowledge that that our own sovereign country but from another was also a commitment given by the Austra- country—is not only somewhat confusing to lian Democrats. It is perhaps a bit sad that people out there but also shows how we are those opposite could not see it in their hearts still struggling to come to terms where our to make a similar commitment to work with place is in this world. Is it in this region as a this side of the chamber and in the other strong, independent, vibrant nation, making place to deliver to the Australian people what our contribution? Or is it part of an older it is they really want. They do want to be- group of nations, an older subset of the world come a republic. The only debate left is community? about what kind of republic we will become, At the same time, we are all very proud of who will be the head of state, how we will Australia’s contribution to the formation of select that person and when it will happen. In one of the world’s youngest nations, Timor my view, sooner rather than later, obviously, Leste, assisting them with the formation of would be much better, but I think it is inevi- their own government and to no longer be a table. foreign occupied country, as when Indonesia It is up to those opposite to take the lead annexed it, or under other colonial power. that, as I say, has been shown by Mr Robb, We now celebrate their independence and Mr Turnbull and others in the other place to have assisted them with electing their own work towards the inevitable and to be part of president and government. We see our role in the debate for change that, I think, will en- the region as being a fierce champion of the hance Australia’s self-confidence, give us a rights of the people of Timor Leste. At the role within our region and enhance our same time, in this place and in other parts of standing as a nation throughout the world. the Australian community, there are those There is nothing wrong with saying that we who think that Australia should not have its want and are ready to be an independent vi- own president, its own head of state or its able nation with our own head of state, no own values that would allow it to take its matter how that is selected. place as an equal in the region. This is a de- Senator Abetz—We’re all that and more. bate that needs to be pursued long and hard, Senator WEBBER—I beg to differ, but with the kind of approach we have had in Senator Abetz. But there is nothing wrong Western Australia. We are only going to

CHAMBER 114 SENATE Thursday, 9 December 2004 with sending that message to the world and DOCUMENTS to be proud of who we are, about who our Consideration head of state is and about showing that face The following order of the day relating to to the rest of the world. There is nothing reports of the Auditor-General was consid- scary about that; it is inevitable. So I would ered: urge those opposite to get on board, to be part of the constructive debate that is hap- Auditor-General—Audit report no. 14 of pening within our community, to be part of 2004-05—Performance audit—Management and promotion of citizenship services: De- the constructive debate that has happened partment of Immigration and Multicultural and within the Senate committee and its inquiry Indigenous Affairs. Motion of Senator Webber and to work with us to achieve the inevitable to take note of document agreed to. rather than constantly resist change. LEAVE OF ABSENCE I find it somewhat ironic that, at a time Senator ABETZ (Tasmania—Special when we are all led to believe, and we read, Minister of State) (4.17 p.m.)—I move: that the British monarchy is happy for Aus- tralia to become a republic and the British That leave of absence be granted to every member of the Senate from the termination of the monarchy is happy for us to select our own sitting today to the day on which the Senate next head of state in whichever way we would meets. choose, it is only people within Australia, Question agreed to. only those who are perhaps more conservative and more shy of change within the Aus- NOTICES tralian political spectrum, who are balking at Presentation this change and not working with those of us Senator BROWN (Tasmania) (4.18 who are going to be here to make that change p.m.)—I seek leave to give notice of a mo- inevitable. tion. Question agreed to. Leave not granted. Consideration ADJOURNMENT The following orders of the day relating to Senator ABETZ (Tasmania—Special committee reports and government responses Minister of State) (4.19 p.m.)—I move: were considered: That the Senate do now adjourn. Legal and Constitutional References Committee—Interim report—Inquiry into Royal Commission of Inquiry into the Australian expatriates. Motion of Senator Centenary House Lease Wong to take note of report agreed to. Senator ABETZ (Tasmania—Special Legal and Constitutional Legislation Minister of State) (4.19 p.m.)—The Centen- Committee—Report—Provisions of the ary House scandal, which has continued for Criminal Code Amendment (Suicide Re- well over a decade, is now fully exposed, lated Material Offences) Bill 2004. Motion courtesy of the David Hunt report of the In- of Senator Webber to take note of report quiry into the Centenary House Lease, which agreed to. was tabled in the other place just a few mo- ments ago. Centenary House is a rort which has now given the Australian Labor Party some $42 million above and beyond normal market rates. At this stage, I must apologise

CHAMBER Thursday, 9 December 2004 SENATE 115 to the Senate, because for a lengthy period of There had been no negotiation of the terms of the time I have been misleading the chamber by lease in the commonly understood sense of give suggesting that it was only a $36 million rort. and take ... the terms finally agreed had been de- The royal commissioner has exposed the rort cided in advance by the Lend Lease representa- to the extent of $42 million. tives of John Curtin House ... The departmental officer who was put into Most honourable senators would be aware the position to negotiate had ‘negligible ex- that this was a lease arrangement entered into perience in negotiating leases and was thor- by the Australian Labor Party to rent prop- oughly out of his depth in relation to this erty to the Commonwealth government, lease’. One wonders why the Minister for which at the time was overseen by the Aus- Administrative Services at the time, Senator tralian Labor Party. What this royal commis- Bolkus, allowed that to occur in his depart- sion has shown is that Labor’s ministerial ment. The senior minister was Mr Beazley. maladministration conveniently gave the Labor Party a $42 million windfall, which a It then talks about the party’s respective Labor appointed royal commission just hap- strengths. The commissioner said: pened not to thoroughly investigate. Indeed, Nor were the needs or wishes of any other Com- there appears as though there was nearly monwealth agency at that time so great as to re- some sort of invisible hand in the whole deal quire the abandonment of ordinary principles of to allow this convergence of events which common sense in the negotiations for the Centen- gave Labor this $42 million benefit. Allow ary House lease. me to quote from page 173 of the report, He then found that Mr Collins, the depart- where the royal commissioner states: mental official: The very marked impression gained from the ... never understood the strength of the Common- proceedings in the 1994 Inquiry— wealth’s position or, if he did, he failed to take advantage of that strength. that is, the Labor Party appointed inquiry— I wonder why he would not have done that. is that it was in the interests of all parties to demonstrate that the Centenary House lease had been The commissioner then commented on fixing properly negotiated and represented a prudent the starting rent, and this is very interesting. transaction offering value to the Commonwealth He said: for expenditure. The extent to which there was None of the valuers who gave evidence ... had unanimity between all the parties is strikingly previously seen a lease in which the starting rent apparent ... was fixed by reference to the market as it had The fix was in in relation to this lease by the stood some two-and-three-quarter years before Australian Labor Party, and the royal com- the lease commenced and then escalated by a mission exposes a litany of events that gave fixed and predetermined percentage up to that commencement. Labor that $42 million windfall. Indeed, the convergence of convenience was so strong His Honour went on: that, if I were a betting man, I reckon that if I There was no sensible reason for the Common- had such luck I would only need to buy one wealth to have agreed to the course it followed. Lotto ticket because I would win the jackpot He then went on to describe the 15-year term straight off. as ‘imprudent’. As a good judicial officer, he In relation to the negotiations, this is what used very conservative language. On page the commissioner found: xvii he said: When Senator Warwick Parer gave publicity—

CHAMBER 116 SENATE Thursday, 9 December 2004

Senator Chris Evans interjecting— the royal commission report that is not in- Senator ABETZ—If Senator Evans were cluded. He is casting aspersions on individu- to be quiet he would listen to this fix. It is a als and on the Australian Labor Party in a gross embarrassment to his administration desperate attempt to try and make the royal and he knows it. commission report more than it is. I would ask you to call him to order and not let him Opposition senators interjecting— denigrate and cast aspersions on senators and Senator ABETZ—On page xvii it said: other members. When Senator Warwick Parer gave publicity to The PRESIDENT—Senator Abetz, I will the terms of the proposed lease ... Mr Taylor took listen carefully to what you have to say. no action to investigate whether the terms were reasonable, and his failure to do so contributed to Senator ABETZ—Mr President, this is the Audit Office’s failure … just a time-wasting exercise by Senator Ev- Once again there is a convergence of every- ans, who is understandably embarrassed. body just happening not to follow up as they When Senator Parer first publicised were required to do. It went on: the proposed lease, a ministerial Mr Jacobs, having responsibility for the Office’s press release was prepared—and corporate affairs, informed Mr Taylor that inquir- guess what it did? It omitted all ref- ies were being made ... as to what was behind the erence to the escalator clauses that allegations … we have condemned year after year. But guess what? Once again very conven- Do you know what the finding of the iently: commissioner was? He said: … but Mr Jacobs never became aware of the re- There is no logical explanation for this omission sults of those inquiries. ... The omission was neither an oversight nor a He said that they were going to in- mistake. quire but then never bothered to fol- What does that suggest? It suggests the low up. The report continued: cover-up; the cover-up was well and truly in. His failure to follow the matter up also contrib- There was an improper $50,000 offer made uted to the Audit Office’s failure to act appropri- by the Labor Party’s agents Lend Lease. That ately. was made by a Mrs Morris— So as we go along we see a picture painted Senator Chris Evans—And what was the of everybody involved in this— finding? None! conveniently—not acting properly in the Senator ABETZ—The offer was there- circumstances. fore improper. That was the finding, Senator Senator Chris Evans—Is that what the Evans, and Mrs Morris knew it. royal commission found? Senator Chris Evans interjecting— Senator ABETZ—The royal commission The PRESIDENT—Senator Evans, you found that Mr Collins was inadequately su- will have your turn in a moment pervised by his superiors and was not subject Senator ABETZ—Mr President, do you to proper controls. Why not? I suggest possi- know what the Labor Party did for Mrs Mor- bly it was because the fix was in. ris? Senator Chris Evans—Mr President, I Senator Chris Evans—Apologise and re- rise on a point of order. Senator Abetz is sign! You are a fraud. desperately trying to make something out of

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Senator ABETZ—After having engaged stand why you were sacked as defence in this improper conduct, conduct which she spokesman. What I cannot understand is why herself admits was improper, do you know the Labor Party made you Leader of the Op- what Labor did? Mrs Morris was rewarded position in the Senate. for her negotiation skills with a string of ap- The PRESIDENT—Order! Senator pointments by a Labor government— Abetz, I ask you to address your remarks Landcom 1996, Sydney Harbour Foreshore through the chair. Authority 1999— Senator ABETZ—The Australian Labor Senator Chris Evans—Step outside and Party has for a very long time sought— make those claims! Opposition senators interjecting— Senator ABETZ—City West Develop- Senator ABETZ—to hide behind the ment Corporation 1995, Energy Australia Morling inquiry as the justification for Cen- 1995. You wonder why they would seek to tenary House. Now, like the emperor with his appoint somebody that a royal commission new clothes, Mr Latham is exposed. The has found— Morling inquiry was nothing but a facade. It The PRESIDENT—Order! Senator Ev- provides no support whatsoever to the Labor ans, that remark was unparliamentary and I Party’s claims. On page 171 Mr Hunt deals would ask you to withdraw. with the significant differences in a number Senator Chris Evans—I withdraw, Mr of areas. Time does not allow me to elabo- President. On a point of order, Mr President, rate, but there are one, two, three, four, five, could I draw to your attention that the minis- six substantial areas where he disagrees. The ter just blackguarded an individual, accusing Labor Party continually come into this place the person of improper conduct, none of and say, ‘Chief executive officers are being which is a finding of the royal commission paid outrageous sums of money. It might be report? Is he going to slur everybody who legal but it is immoral.’ Yet today they will was mentioned or is he going to actually dis- get up in this place and say, ‘We might be cuss the findings of the royal commissioner? legal with the $42 million rip-off of the Aus- The PRESIDENT—Senator Abetz has tralian taxpayer,’ but they know it is im- not used any unparliamentary language yet moral. All the findings show it is immoral in my opinion. and Labor ought to cough up. (Time expired) Senator ABETZ—For the edification and Royal Commission of Inquiry into the gross embarrassment of Senator Evans, can I Centenary House Lease refer him to page xxi of the report where His Senator CHRIS EVANS (Western Aus- Honour said: tralia—Leader of the Opposition in the Sen- The offer was therefore improper, and Mrs Morris ate) (4.30 p.m.)—I have great pleasure in knew it— rising in tonight’s adjournment debate to ad- It is not me slagging off at Mrs Morris; it is dress some remarks to the Royal Commis- David Hunt QC. And, what is more, Mrs sion of Inquiry into the Centenary House Morris agrees with me! She agrees that it Lease. Isn’t it interesting that just after four was improper; she told the royal commis- o’clock on the last day of sitting Senator sioner that. You are now suggesting that my Abetz sneaks into the chamber, without hav- repeating Mrs Morris’s own words is some- ing tabled the report in the Senate, and tries how defamatory. Senator Evans, I can under- to put his spin on a tremendous embarrassment for him, a tremendous blow to the po-

CHAMBER 118 SENATE Thursday, 9 December 2004 litical campaign that the Liberals have waged other $3.8 million of taxpayers’ money was on this issue for 10 years now. And what has wasted on a second royal commission. Do the royal commission found? That there is no you know how many royal commissions we case to answer. It clears the Labor Party and have had in the last 10 years? Five. Do you it does not support any of the outrageous know how many have been into the Labor accusations that Senator Abetz, Senator Party and Centenary House? Two. Two of Brandis and Senator Ian Campbell have tried the five most important things the Howard to make as the basis of their political careers government have had on their agenda, of the for the last 10 years. things they thought were wrong in Australia, I would be embarrassed if I were you, were inquiries into Centenary House. And Senator Abetz, because you wasted $3.8 mil- what have they got at the end of the two lion of taxpayers’ money for a second royal royal commissions? Nothing. They have got commission that found nothing, that found a finding that says: that you were wrong. You sneak in here and ... it is appropriate that I do state that no ... criti- you do not quote the report; you try and find cism should be levelled at the conduct of John subclauses that might help you maintain the Curtin House Ltd or the Australian Labor Party. innuendo that was not supported. The royal You cannot escape that. Now front up, commission said: apologise and pay back the money. ... it is appropriate that I do state that no ... criti- The PRESIDENT—Order! Address your cism should be levelled at the conduct of John remarks through the chair. Curtin House Ltd or the Australian Labor Party. Senator CHRIS EVANS—The minister That is the finding of the royal commission. ought to have the money taken out of his Your low attack on the Labor Party over 10 salary. These ministers, for political purposes years has come to nothing—two royal com- before the last election, set up another royal missions, no result. commission to have a second go at it. The Senator Abetz—Mr President, I rise on a results came out and what happened? Abso- point of order. lutely nothing. The whole thing has been a Senator Wong—You’re very sensitive to- complete disaster for the Liberal Party, be- day. cause all the findings are that there was no improper conduct. The report shows that Senator Abetz—No, it is just along the there was no suggestion of corruption, fraud lines of Senator Evans’s points of order. If he or political impropriety on the part of any wants to address remarks to me he should person involved in the lease of Centenary not do it across the chamber but through the House to the Australian National Audit Of- President in the third person. fice; no misleading statement was made in The PRESIDENT—I think Senator Ev- the negotiations; no minister or other elected ans is well aware of the fact that he should representative of the then government en- not respond to interjections and he should couraged or caused the ANAO to enter into address his remarks through the chair. the lease; the terms of the lease were negoti- Senator CHRIS EVANS—Quite right, ated at arm’s length between representatives Mr President. I am sorry if Senator Abetz is of the Commonwealth and the landlord of getting sensitive, but he ought to be sensitive John Curtin House; there is no basis for any and he ought to be embarrassed. ‘What a suggestion that there exist any grounds to set waste!’ is what taxpayers ought to think. An- aside the lease or have its terms varied. The

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Centenary House lease was not the first nor believe. You have had Monday, Tuesday, the last lease entered into by the Common- Wednesday and Thursday. They had four wealth which included a long term, a fixed question times in which they could have at- escalator and no provision review. The royal tacked us, they could have ridiculed us—and commission also found, despite the argu- they could have really hurt us with clause ments that Senator Abetz and others have 23(1)b on page 21 or whatever! But what did been making for the last 10 years time and they do? They snuck around; they hid the time again, that no renegotiation was possi- report. Senator Abetz kept it in his pocket ble. The government’s own royal commis- until Thursday afternoon at four o’clock. sion found no renegotiation of the lease was When everyone is going home, when the possible. parliament is over for the week— So what have we got? We have got $3.8 Honourable senators interjecting— million of taxpayers’ money wasted again. The PRESIDENT—Order! There is too The minister, Senator Abetz, and Senator much noise in the chamber. Senator Abetz, Brandis and Senator Ian Campbell ought to you are making enough noise for the whole start paying that out of their wages. We will opposition, I think. Come to order. organise a repayment scheme for you, be- Senator CHRIS EVANS—Senator Abetz cause you have had your second royal com- sneaks in and says, ‘It does really support mission and it was a complete dud. Why do me. If you look at clause 37(b) on page 122, we have you sneaking in here at four that almost says what I would like it to say.’ o’clock? I could not get a copy. It was not Well, it does not, Senator Abetz. It does not tabled in the Senate. Why? Because they say anything else. What it says is that you were embarrassed. They did not want to have got a fizzer, mate—and you have made show it. Senator Abetz had a copy. Did we the taxpayer pay for it again. Two royal have a copy? No. Why not? Because it was commissions have been complete fizzers. not tabled in the Senate. Why wasn’t it ta- The main finding was that there was no sug- bled? Because of its indictment of your po- gestion of corruption, fraud or political im- litical career, failure after failure. You have propriety on the part of any person involved banged on for 10 years and you have got in the lease of Centenary House to the Aus- nothing. tralian National Audit Office. Senator Barnett, you would laugh. I know We did not hear you quote a lot from the you want his spot. Quite frankly, this will report, because you do not like it. You did improve your chances, because it proves not have the courage to table it. You did not again that Senator Abetz ain’t got it. He ain’t have the courage to bring it in on Monday, got it and he ain’t delivered. He has been Tuesday or Wednesday, but on Thursday, at a prepared, along with John Howard, to waste time when everyone is about to go home, taxpayers’ money time and time again in you thought you would come in and make a pursuing political objectives. And what did few remarks and say: ‘This really does sup- they get out of this? They got nothing. All port me. The written word does not, but if the findings made it very clear that there was you interpret it through my understanding of no impropriety. all these matters this is terribly damaging.’ If Think about it: you want to put political this is the best damage you can do to us, heat on the opposition over an important is- mate, carry on, because you are not up to it! sue. You have had the report for a week, I The PRESIDENT—Through the chair.

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Senator CHRIS EVANS—Sorry, Mr Barnett and the other Tasmanians are so sick President. Senator Abetz is not up to it. But of you—because you ain’t up to the job! what really irks me is not the royal commis- Senator Abetz interjecting— sion— The PRESIDENT—Order! Interjections Senator Abetz interjecting— are disorderly too, Senator. Senator CHRIS EVANS—Where are Senator CHRIS EVANS—Mr President, Senator Ian Campbell and Senator Brandis, I ought to direct my comments through you, the other great heroes of this charge, the but I do get angry and upset that taxpayers’ other political geniuses behind this? They are money has been wasted on a political witch- not here. You would think that, if this were hunt which has totally vindicated the Labor such a political embarrassment to the Labor Party and totally refuted all the innuendo. All Party, they would be making the most of it. the slimy little claims made by Senator Abetz But you did not bring it in on Monday, Tues- over the years have been refuted completely day or Wednesday and you did not come in by the royal commission. He ought to apolo- here today and table the report and give us gise and he ought to think about how he the advantage of reading it—because you do might help recompense the taxpayers for the not like it! Why? Because it says you fell on waste of money that he spent on the royal your face. But what is really irking is that commission. His political career is in tatters you spent three— again because the one thing he had was slur- Senator Abetz—You keep believing it. ring the Labor Party—and the royal commis- Senator CHRIS EVANS—I believe it, sion said that it was a fizzer, that there was and you will hear about it a lot. You spent nothing in it. $3.8 million of taxpayers’ money—again, Senator Abetz—You’re a new leader; another waste. It was not the first royal make a difference. commission but the second. You thought: The PRESIDENT—Order! Senator, con- ‘We’ll have another go at it. Ten years on we tinual interjection is disorderly. will have another go. Maybe we can find a Senator CHRIS EVANS—The findings royal commissioner who will support our completely absolve the Labor Party of any argument.’ Well they did not. They found a impropriety at all. royal commissioner who did a thorough job and said there was no finding of impropriety; Royal Commission of Inquiry into the that what you had been banging on about for Centenary House Lease 10 years was a complete waste of time—that Australian Democrats it was a slur, a denigration of good people for Senator BARTLETT (Queensland— a cheap political point. And you were pre- Leader of the Australian Democrats) (4.40 pared to waste taxpayers’ money to denigrate p.m.)—I always thought the adjournment your political opponents. I do not mind you debate at the end of the year was meant to having a go at us. We will take it head on. involve expressions of Christmas cheer and We will not sneak in when parliament is all those sorts of things. about to go home and try to have a go. We Senator Chris Evans—By the way, will do it up front. But you come in late, happy Christmas! sneak in and try to make a cheap political point, to try to misrepresent what is an abso- The PRESIDENT—Perhaps we might lute indictment of you. I know why Senator have a change of tone now, Senator.

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Senator BARTLETT—I will do my best. As part of this closing debate for the year, As always, I think the major parties some- I wish all senators and people in the parlia- times cannot help themselves, getting into ment, particularly the parliamentary staff, a the furious accusations and finger pointing merry Christmas. We did have a curious as- and, to some extent, missing the issues that sertion from the minister for multicultural actually affect the community. Having said affairs today that saying merry Christmas that, the Democrats were not opposed to the might be offensive to Muslims, which I idea of investigating this particular issue that found a bit bizarre. I think Muslim Austra- has been the subject of the last couple of lians can cope quite well with the concept speakers. Indeed, to some extent the gov- that Christmas is more than just a narrow ernment did so by picking up on a Senate Christian festival. People who are not prac- motion that was moved by the Democrats tising Christians—such as me, for that mat- and supported by the Senate. But if they are ter—are still quite able to cope with being in any way wanting to suggest that they did wished a merry Christmas without feeling so for any reasons other than political expe- that I am having religion pushed down my diency and politically driven motives leading throat. I thought it was quite an odd assertion up to the election, they would prove that they from the minister for multiculturalism, al- were genuine about public accountability by though it was done as a way of avoiding the also picking up the frequently repeated Sen- real question and the real challenge of people ate resolutions calling for royal commissions who are not going to have a merry Christmas into issues of much greater significance, par- whether they are Muslim, Christian or any- ticularly repeated resolutions calling for a thing else, which is the people who are con- royal commission nationally into child sex- tinually locked up in detention centres by ual assault, to which the government have this government in Australia and on Nauru. I continually said: ‘No, it’s a waste of money. do not know what those detained on Christ- It’s not the best use of resources.’ As Senator mas Island who are mainly Buddhists would Evans said, we have had five royal commis- think. I am sure they could cope with being sions under the life of this government, two wished a merry Christmas. I am sure they of them into this Centenary House issue. We would be much happier if they were given do not object to that being looked into; we do some freedom. Either way, I wish people a object to very serious, chronic problems af- merry Christmas and a good break, particu- fecting the future of this nation and the lives larly those people who service all of us of hundreds of thousands of Australians con- here—the staff, the attendants, the clerks and tinuing to be ignored. We urge the govern- the many other people who work in this ment once again to reconsider supporting building day after day who are not the focus taking up those Senate resolutions to adopt of the spotlight but who are in many ways inquiries into child sexual assault and also just as critical to keeping democracy churn- the frequently repeated resolution to have a ing over. proper independent inquiry into the SIEVX, We started out this last sitting fortnight which might not seem as important or have with the condolence motion and debate for as much political point scoring opportunity Janine Haines, a former leader of the De- as the Centenary House lease but did involve mocrats and often stated to be the best leader the death of 353 people. I think it is appro- of the Democrats—certainly so far. I would priate that all the questions relating to that be like to take this opportunity to repeat on be- answered. half of the Democrats our distress at her

CHAMBER 122 SENATE Thursday, 9 December 2004 premature passing, our acknowledgment of knowledged. I am very proud of what the her great contribution to the parliament, and Democrats, with the staff group that are our condolences and compassion to her fam- working for the senators at the moment, have ily. In her final year in the Senate Janine achieved in the last few years in an enor- Haines actually occupied the seat where I am mous number of areas—too many to go now standing and it is an honour in that through at the moment. Clearly, we are im- sense to follow, I suppose you could say, in proving things and making a positive differ- her footsteps by standing in the spot that she ence to people’s lives in ways that will bear stood in. This is the last time that I will be fruit for decades. I will always defend that standing here and speaking from this spot as legacy and I will always acknowledge the leader of the Democrats. The leadership will particular role that the staff, and the Democ- be changing over next week and Senator Lyn rats membership more broadly, have played. Allison will be taking on that role. I wish her To quote Clint Eastwood in one of his mov- well in that role and certainly offer her my ies, ‘Deserve’s got nothing to do with it.’ The support, as she has provided support to me as Democrat membership and the staff did not deputy for the last couple of years. deserve the situation they have now but that I would also like to thank the Democrat is the way things happen sometimes. membership, who have been through a lot in As leader of the Democrats, I accept the recent times. They have had a difficult year election result—as I always have done—and and a difficult last couple of months. I would I accept responsibility for it. There is no also especially like to take the opportunity to doubt that in a number of key areas—small thank, on the public record, all of the staff of in number but nonetheless big in impor- Democrat parliamentarians, particularly tance—over the past five years, the Democ- those on my personal and electorate staff, rats as a parliamentary party stuffed up in a who have also been through a very difficult big way. That has to be acknowledged and year. The people I have on staff currently are the people who were let down should be a fantastic group of people. They are very apologised to. But I remain convinced that well organised and incredibly capable, and there is a strong need for a party to fill the they put in an enormous amount of work role that the Democrats played: strongly with very little acknowledgment and often a speaking out for and promoting justice, free- lot of criticism. They are responsible for an dom, opportunity and environmental protec- enormous amount of achievement through tion—but in a way that sees business, big this Senate. and small, as part of the solution, not part of Despite the Democrats’ very disappoint- the problem, as parts of the Left in this coun- ing, very poor election result I will always try do. Business, big and small, plays a cru- defend the enormous amount of achieve- cial role in generating wealth and opportu- ments we gained as a Senate team with the nity and, indeed, ways of improving envi- support of those staff through our work in the ronmental protection, and freedom and jus- Senate, making a difference and improving tice. We need to look for ways of working in laws that improve people’s lives. Whilst ob- with those people and that part of our society viously you need to keep getting elected to and our economy, whilst being aware of the this place in order to make a difference, that potential downsides. We need a party that is is why you do it—to improve people’s lives independent of both the major parties and not and to make sure that issues that would oth- tied to dogmatic ideological views. That is a erwise be forgotten are addressed and ac- role that is still very much needed and it is

CHAMBER Thursday, 9 December 2004 SENATE 123 certainly one that I am keen to continue to cluding Prime Minister’s Wives by Diane play. Langmore, where she says: We also need a strong Senate. It was very Enid Lyons, wife of Joseph Aloysius Lyons, was frustrating during the last election campaign the only Australian Prime Minister’s wife who, to be unable to get the message out there having played an exceptionally prominent part in about the possibility of this government get- her husband’s public life, went on to a political ting control of the Senate. We had a lot of career of her own: she became the first woman member of the House of Representatives. media interest in the government having control of the Senate after the election—which Yes, she was married to a famous Tasmanian, was a little bit late. It is now a reality and I a former Tasmanian Premier. Joseph Lyons, a acknowledge that that is a result of the ex- member of the United Australia Party, be- pressed views and votes of the Australian came Prime Minister and was sworn in on 6 people. We need a Senate that will be inde- January 1932. He died in office of a heart pendent of the government but will work attack on Good Friday, 7 April 1939. constructively. Certainly we will seek to con- Dame Enid had many qualities. In Prime tinue to work constructively whilst holding Minister’s Wives, Diane Langmore says: and strongly pursuing our own independent The firm upbringing given Enid by her mother views. We will continue to do our best in that equipped her for her later life. Through her she regard. developed ambition, determination, a strong sense When we have had a bit of a rest, after of duty and responsibility, civic awareness, a strict morality and a skill in the use and apprecia- Christmas and the new year, we will be back tion of the English language. But that was only next year for a very small number of sitting half her inheritance. In childhood Enid also had a days. There will be a historically low number sneaking attraction to the very different qualities of sitting days before 30 June so we will only of her father: his lightheartedness, his wit, his very briefly see each other in this chamber, colourful vernacular speech and his gift for anec- now and then, whilst the government waits dote uninhibited by concern for veracity. until it gets the numbers. That is unfortunate Interestingly, Dame Enid and Joseph Lyons but there is plenty of work to do out in the met in Hobart when Joe was Premier of the broader community and there are plenty of state of Tasmania. She was aged only 17 issues that still need addressing. There are years and he was aged 35, in fact over twice plenty of people who have issues, concerns her age. They were married in Hobart. Fun- and needs that are being ignored by the ma- nily enough, they honeymooned at the pre- jor parties. The Democrats—and I, person- miers conference in Sydney, which certainly ally—will continue to do all we can inside shows a depth of dedication to her husband. and outside this chamber to make sure there It is fascinating that a couple would have a is a voice for those issues. honeymoon at such an event as that. Lyons, Dame Enid Dame Enid was elected to parliament on Senator BARNETT (Tasmania) (4.50 21 August 1943 and she gave her maiden p.m.)—I rise in the adjournment debate to speech on 29 September 1943. I want to read pay tribute to the memory of Dame Enid Ly- an extract from her maiden speech to high- ons. She was born on 9 July 1897 and lived light the type of woman that she was and the to the ripe old age of 84, when she died on contribution that she made to this country of 2 September 1981. She has been referred to ours. I also want to refer to yesterday’s book in a number of publications and books, in- launch of Speaking for Australia: Parliamen-

CHAMBER 124 SENATE Thursday, 9 December 2004 tary Speeches that Shaped a Nation, edited of course, that was in the government of Sir by Senator Rod Kemp and launched by the Robert Gordon Menzies who was a great Prime Minister. I congratulate Senator Kemp Liberal Prime Minister of this country— on its launch and I am sure it will be well and widow of the former Prime Minister the received. In that book is the maiden speech Right Honourable J. A. Lyons, places on record of Dame Enid Lyons. She talks about the fact its appreciation of her long and meritorious public that she was the first woman member of the service and tenders its profound sympathy. House of Representatives and how she There were a number of other contributions wanted to be considered and have her contri- made in the Senate at that time, including bution considered on its merit. She spoke in those from a fine Tasmanian senator at the her maiden speech about the character of the time, Brian Archer, and the Acting Prime nation and how important it was to stick by Minister at the time, Mr Doug Anthony. I things such as hatred of oppression, the love will not read them now but they are on the of a fair go, a passion for justice and those record and highlight her contribution and the types of qualities. fact that she was not only the first Australian She spoke of other issues such as decen- woman to become a member of the House of tralisation and the declining birthrate. She Representatives but a fine and outstanding spoke of the housing issues and the effects of Australian. the war. But in her concluding remarks, she Valedictory said this: Senator HILL (South Australia—Leader ... I bear the name of one of whom it was said in of the Government in the Senate) (4.56 this chamber that to him the problems of govern- p.m.)—I shall take only a moment. I want to ment were not problems of blue books, not prob- thank all of those who serve the Senate and lems of statistics, but problems of human values who support us in our work as senators—the and human hearts and human feelings. That, it seems to me, is a concept of government that we clerks, the attendants, the Table Office, all of might well cherish. It is certainly one that I hold the staff of the Senate, security, Comcar— very dear. I hope that I shall never forget that and so I could go on. They all do a marvel- everything that takes place in this chamber goes lous job and treat us well, and we appreciate out somewhere to strike a human heart, to influ- that. On that note, I want to wish everyone a ence the life of some fellow being, and I believe happy Christmas. this, too, with all my heart that the duty of every Valedictory government, whether in this country or any other, is to see that no man, because of the condition of Senator CHRIS EVANS (Western Aus- his life, shall ever need lose his vision of the city tralia—Leader of the Opposition in the Sen- of God. ate) (4.57 p.m.)—by leave—I would like to What a wonderful quote and something that join with the Leader of the Government in is still true today. The Senate passed a mo- the Senate, Senator Hill, in indicating my tion of regret on 8 September 1981 after thanks to all the Senate staff and the other Dame Enid’s death. That motion read: people in parliament. I place on record, on That the Senate expresses its deep regret at the behalf of the Australian Labor Party, our death on 2 September of the Honourable Dame thanks to all the staff and people who allow Enid Muriel Lyons, a member of the House of us to function in this place. They give un- Representatives for the division of Darwin from stinting service and courtesy, even though I 1943 to 1951, Vice-President of the Executive am sure many of us have been difficult to Council from 1949 to 1951—

CHAMBER Thursday, 9 December 2004 SENATE 125 deal with, particularly in the last few public gaze—to make Australia’s parliament weeks— function. I thank all those parliamentary staff Senator Hill—Speak for yourself! who are essential to this institution. I would particularly like to thank the Deputy Presi- Senator CHRIS EVANS—I do speak for dent, Senator Hogg, who has characteristi- myself—as we have become more tired and cally provided very loyal support to me in grumpy. Obviously from the Labor Party the administration of the chair. I thank him point of view it has not been a great period. I and the panel of temporary chairmen of am thankful, too, to all the Labor senators committees for their service during the year. and their staff for their strong support. I do I think we would all agree, too, that the man- wish all those associated with the Senate and agers of business and the whips deserve a the parliament a happy Christmas. I hope special mention for getting us out of here at they get to spend some quality time with five o’clock on a Thursday night, which has families and friends and that they have a safe not happened for a long time, as I recall, and prosperous Christmas period. We look given the heavy load of business on the forward to seeing them all again, but not too agenda this week. soon, in the new year. It has been a disrupted year for the Senate Valedictory because of the election. I think the Christmas The PRESIDENT (4.58 p.m.)—I think it break affords us all an opportunity to re- is rather appropriate that the President have charge our batteries and to take a moment to the last word, as always. At this stage of the reflect that we are very fortunate to live in 2004 sittings I also would like to thank the Australia, a country that is governed by a officers of the parliament for their assistance robust, as we heard this afternoon, open and to me and to the Senate during the year. I scrutinised democracy. I wish all honourable particularly thank the Clerk and the other senators and their families a very happy clerks at the table, the Usher of the Black Christmas and a very prosperous new year. Rod and all the other staff in the Senate de- Senate adjourned at 5.01 p.m. partment for their wonderful work during the year. DOCUMENTS This year, on 1 February, saw the creation Tabling of the new Department of Parliamentary The following government documents Services. It is a tribute to all the staff of the were tabled: three former departments affected by the Department of Defence—Special purpose amalgamation that the new department has flights—Schedule for the period January to been established smoothly. I particularly re- June 2004; cord my appreciation to Hilary Penfold, the Parliamentarians’ travel paid by the De- secretary to the department, who has worked partment of Finance and Administration— hard and diligently with her staff to make the January to June 2004 dated December transition so successful. 2004; and When visitors come into this building Former parliamentarians’ travel paid by the from overseas or from other parts of Austra- Department of Finance and Administra- tion—January to June 2004 dated Decem- lia they are amazed to see that this is really a ber 2004. small village. I always remind people of how much goes on behind the scenes— The following documents were tabled by underground, in the gardens and out of the the Clerk:

CHAMBER 126 SENATE Thursday, 9 December 2004

Airports Act—Statement under section Health Insurance Act—Regulations— 243—Decision to grant an airport lease, Statutory Rules 2004 No. 343. dated 15 November 2004. Interstate Road Transport Act— Australian Meat and Live-stock Industry Regulations—Statutory Rules 2004 No. Act—Australian Meat and Live-stock In- 346. dustry Amendment and Repeal Order Military Rehabilitation and Compensation 2004. Act—Regulations—Statutory Rules 2004 Civil Aviation Act—Regulations— No. 350. Statutory Rules 2004 No. 345. Parliamentary Service Act—Parliamentary Class Rulings CR 2004/131-CR 2004/137. Service Determinations Nos 3 and 5 of Customs Act—Regulations—Statutory 2004. Rules 2004 No. 338. Petroleum (Submerged Lands) Act— Diplomatic Privileges and Immunities Regulations—Statutory Rules 2004 No. Act—Diplomatic Privileges and Immuni- 344. ties Regulations—Certificates under regu- Product Ruling— lation 5A, dated 2 December 2004 [2]. PR 2004/24 (Notice of Withdrawal). Extradition Act—Regulations—Statutory PR 2004/112. Rules 2004 Nos 339-341. Retirement Savings Accounts Act— Fisheries Management Act— Regulations—Statutory Rules 2004 No. Regulations—Statutory Rules 2004 Nos 348. 335 and 336. Superannuation Industry (Supervision) Freedom of Information Act— Act—Regulations—Statutory Rules 2004 Regulations—Statutory Rules 2004 No. No. 349. 342. Taxation Determinations TD 2004/68-TD Fringe Benefits Tax Assessment Act— 2004/71. Regulations—Statutory Rules 2004 No. Veterans’ Entitlements Act—Regulations— 347. Statutory Rules 2004 No. 337. Goods and Services Tax Determination GSTD 2004/4. Goods and Services Tax Ruling— GSTR 2000/31 (Addendum). GSTR 2004/7.

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QUESTIONS ON NOTICE The following answers to questions were circulated:

Environment: Woodsreef Asbestos Mine (Question No. 11) Senator Brown asked the Minister for the Environment and Heritage, upon notice, on 21 October 2004: With reference to the abandoned Woodsreef asbestos mine, located east of Barraba in New South Wales: (1) Is the Government aware of any study as to whether the tailings dump from the mine currently constitutes either: (a) a health hazard to nearby communities; or (b) a pollutant risk to river sys- tems, whether localised or impacting significant components of the Murray-Darling river system. (2) Given the interest of Pacific Magnesium Corporation in re-opening the site in order to extract magnesium from the tailings, is the Government aware of any assessment of the environmental impact of such a development. (3) (a) Has there been any rehabilitation work performed on the site since the mine was closed; (b) are there any plans for such work to be commenced; and (c) is such work dependent upon a decision as to whether the site will be reopened for the extraction of magnesium. Senator Ian Campbell—The answer to the honourable senator’s question is as follows: (1) (a) and (b) I am advised that the New South Wales Department of Mineral Resources report “Woodsreef: A Study Of Risk” found that: • Asbestos inhalation was considered to be the dominant health risk presented by the site, accounting for 90% of the total risks. The risks however were not considered to be significant given the low level of exposure. • Ecological and public health risks due to chemical pollution and leaching were considered to be negligible. • Risks due to failure of the waste and tailings dumps were considered to be negligible. (2) No formal environmental impact assessment process has been initiated under NSW legislation or the Environment Protection and Biodiversity Conservation Act 1999. (3) (a) Yes. (b) I am advised that in answer to a question in the New South Wales Parliament in May 2004 the Minister for Resources stated that the New South Wales Derelict Mines Committee may consider allocating funds for rehabilitation works at Woodsreef in 2005. (c) The nature and extent of rehabilitation work undertaken at the Woodsreef site is a matter for the New South Wales Gov- ernment. National Electricity Code Admistrator (Question No. 55) Senator Marshall asked the Minister representing the Minister for Industry, Tourism and Resources, upon notice, on 17 November 2004: (1) Can the Minister provide all budgetary details, including amounts of appropriation and relevant budget lines, for all expenditure on the National Electricity Code Administrator (NECA) in the: (a) 2003-04 Budget; and (b) 2004-05 Budget.

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(2) Can the Treasurer provide an explanation of any difference in expenditure in the 2003-04 Budget and the 2004-05 Budget; if not, why not. Senator Minchin—The Minister for Industry, Tourism and Resources has provided the following answer to the honourable senator’s question: (1) The Australian Government provides no funding for the National Electricity Code Administrator (NECA). (2) Not applicable. Health: National Women’s Health Program (Question No. 88) Senator Brown asked the Minister representing the Minister for Health and Ageing, upon notice, on 17 November 2004: With reference to funding for the National Women’s Health Program: Will the National Women’s Health Program be excluded from the Public Health Outcomes Funding Agreement; if so, what alternative funding provision is being made for funding women’s health services nationally and regionally, including the Women’s Health Program in Tasmania. Senator Patterson—The Minister for Health and Ageing has provided the following answer to the honourable senator’s question: The Australian Government assists states and territories, through a funding contribution made under the bilateral Public Health Outcome Funding Agreements 2004-2009 (PHOFAs), to achieve health outcomes for a number of public health areas, including women’s health programs. The Australian Gov- ernment’s offer to jurisdictions fully expends the forward estimates for PHOFA programs. Under these Agreements, states and territories will receive a pool of funds and are responsible for making service- level funding decisions in line with local needs and priorities. The PHOFA agreements, which have been signed by seven states and territories, explicitly acknowledge the importance of women’s health services and provide for jurisdictions to use Australian Government funds to implement the whole range of women’s health services. The Tasmanian Minister for Health and Human Services signed the renewed agreement on this basis on 30 September 2004. Under the PHOFAs, states and territories are required to report annually on a number of performance measures. These include a number of performance indicators specifically related to the delivery of women’s health programs. The final set of performance indicators are currently with jurisdictions for final comments and will be available for public release once they are finalised. Environment: Mine Sites (Question No. 89) Senator Brown asked the Minister for the Environment and Heritage, upon notice, on 18 November 2004: With reference to the rehabilitation of mine sites in Tasmania: What strategy does the Government have for remediation of the impact of mining on the environment of the west coast of Tasmania, including Macquarie Harbour and the Tasmanian Wilderness Word Heritage Area. Senator Ian Campbell—The answer to the honourable senator’s question is as follows: State and Territory governments are responsible for the regulation and management of mine closures and mine site rehabilitation.

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The Government’s strategy for management of the Wilderness World Heritage Area may be found in the Tasmanian Wilderness World Heritage Area Management Plan 1999. This plan documents the joint management arrangements between the Tasmanian and Commonwealth Governments for the World Heritage Area.

QUESTIONS ON NOTICE